TMI Blog2011 (2) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... U/s praying that the High Court may be pleased to set aside the dismissal Order dated 6.2.98 in AS No.8 of 1985 and to restore the appeal to file. CMP No. 21116/2003: Petition Under Order 9 Rule 9 read with section 151 CPC, praying that the High Court may be pleased to set aside the abatement caused due to the death of sole respondent i.e. Lanka Venkateswarlu. CMP No. 21117/2003: Between Sri D.E.V Apparao .Petitioner/impleaded Petitioner in AS No.8 of 1985 on the file of High Court And: 1. The State of A.P. rep. by District Collector, Visakhapatnam. 2. The Tahsildar, Visakhpatnam .Respondent/Appellants 3. Lanka Venkateswarlu (died) .Respondent Petition under Order 1 Rule 10 CPC, prays this Hon'ble Court may be pleased to permit the petitioners society to be impleaded as and 2 in AS. 8 of 1985 on the file of the Hon'ble Court to prosecute the appeal. CMP No. 21118/2003: Petition U/s 5 of Limitation Act praying the High Court may be pleased to condone the delay of 883 days in filing the petition seeking to set aside the dismissal order dated 6.2.1998. These petitions coming on for hearing, upon perusing the petition and the affidavit filed in support thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also stated that the original plaintiff was not in possession and enjoyment of the plaint schedule property. 6. On the pleadings of the parties, the trial court framed six issues. Issue No. 1 pertains to the title of the original plaintiff to the schedule property. Issues No.2 3 were with regard to, whether the original plaintiff was entitled to relief of declaration and injunction as prayed for. Issue No.4 was whether the suit is not maintainable. A perusal of the judgment of the trial court shows that the suit was hotly contested on each and every issue. Issues 1, 2, 3, 4 and 6 were decided in favour of the original plaintiff and against the defendants, i.e., respondent Nos. 1 and 2. Issue No.5 with regard to valuation of the suit was not pressed by the government pleader. The suit was decreed by judgment dated 24th September, 1982. 7. The respondents challenged the aforesaid judgment and decree by filing an appeal before the High Court of Andhra Pradesh being A.S. No. 8 of 1985. The sole respondent, i.e., original plaintiff died on 25th February, 1990. Therefore, the Advocate appearing for the deceased original plaintiff being the `sole respondent' in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat as the order dated 6th February, 1998 was not complied with, the default order came into force and the appeal stood dismissed. 10. In this affidavit, the explanation given is that the predecessors of the officer, who affirmed the affidavit dated 11th July, 2000 came to know about the dismissal of the appeal during the course of investigation in original O.S. No. 6 of 2000 which had been filed by the widow and the children of the deceased original plaintiff, i.e., sole respondent in the appeal. It is also admitted that thereafter, an application was filed for setting aside the order of abatement dated 6th February, 1998, but, without any application seeking condonation of delay of 883 days in filing the petition. To cover the foresaid lapse, CMP No. 21118 of 2003 was filed seeking condonation of delay of 883 days in filing the petition. 11. Thereafter CMPSR No. 58644 of 2000 was filed on 17th August, 2000 with a prayer to condone the delay of 3703 days to bring the legal representatives on record. CMPSR No. 58646 of 2000 was filed to bring the legal representatives of the deceased original plaintiff on record and CMPSR No. 58645 of 2000 to set aside the order of dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 2003 directed that in the meantime, proceedings in the appeal pending in the High Court shall remain stayed . Therefore, it is evident that the situation today is as it was when the order was passed on 6th February, 1998, i.e., appeal filed by the respondent Nos. 1 and 2 stood abated and hence dismissed. 17. We have heard the learned counsel for parties. Mr. P.S. Narasimha, senior advocate, appearing for the appellant submitted that the impugned order of the High Court cannot be justified on any legal ground. He submits that the High Court having itself recorded the utter negligence of the respondents in pursuing the appeal at every stage, without any justification, condoned the delay. The learned senior counsel pointed out that there was no explanation, much less any plausible explanation to justify the delay of 3703 days in filing the application for bringing on record the LRs. of the sole respondent or for the delay in filing the application for setting aside the order dated 6th February, 1998. It was further submitted that there was no justification to permit the respondent No.3 to be impleaded as a party in the appeal. Learned counsel relied on the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh and Ors. Vs. Annabai Devram Kini Ors, (Supra), this Court again reiterated that in as much as abatement results in denial of hearing on the merits of the case, the provision of an abatement has to be construed strictly. On the other hand, the prayer of setting aside abatement and the dismissal consequent upon abatement had to be considered liberally. It was further observed as follows:- The Courts have to adopt a justice oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. 22. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:- 25. We may state that even if the term sufficient cause has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications. But at the same time they went on taking time without knowing for what purpose they were taking time. In the result an appeal which would have been disposed of in 1997 remained pending all these years mainly due to the negligence on the part of the Government Pleader in office. Thereafter at the two stages, the High Court records that:- In the normal course we would have thrown out these applications without having second thought in the matter. We have already observed that in the normal course we would have dismissed the applications for severe latches on the part of the appellants and their counsel. 24. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 25. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders. The displeasure of the Court is patently apparent from the impugned order itself. In the opening paragraph of the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions can not and should not form the basis of exercising discretionary powers. 27. The order of the High Court, in our opinion, is based purely on the personal perceptions and predilections of the Judges on the bench. The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality. In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the justice oriented approach , the bedrock of which is fairness and impartiality. Judges at all levels in this country subscribe to an oath when entering upon office of Judgeship, to do justice without fear or favour, ill will or malice. This commitment in form of a solemn oath is to ensure that Judges base their opinions on objectivity and impartiality. The first casualty of prejudice is objectivity and impartiality. It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice. We may notice here the observations made by a Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
