A. Ahammed Gani vs The Commissioner, Ramanathapuram Municipality

Aruna Jagadeesan, J.—This Civil Revision Petition is filed by the petitioner/defendant against the order dated 4.8.2008 passed by the

learned Sub Judge, Ramanathapuram in IA. No. 43/2006 in OS. No. 24/2004, condoning the delay of 351 days in filing the petition to restore the

suit, which was dismissed for default on 1.11.2004.

The respondent/plaintiff has filed the above said suit against the petitioner for recovery of arrears of lease amount of Rs. 3,85,030/- and the suit

was dismissed for default on 1.11.2004. Originally the suit was posted on 8.11.2004 and the same was advanced to 1.11.2004 and posted in the

special list on that date. It was submitted by the respondent that they failed to note down the date when it was advanced and posted in the list and

as it was not called on 8.11.2004 the suit bundle was kept separately by the counsel in his office and the same has got mixed up with the disposed

bundles. Only when the officials of the respondent Municipality approached the petitioner demanding the arrears of lease amount, they came to

know about the dismissal of the suit and thereafter, the suit bundles were traced and the petition was filed to restore the suit which was dismissed

for default. According to the respondent, it has resulted in a delay of 351 days. The trial court on being satisfied with the reasons shown by the

respondent allowed the application. Aggrieved against the said order, this Civil Revision Petition has been filed by the defendant.

Mr. V. Raghavachari, the learned Counsel for the petitioner assailed the impugned order on the ground that the petitioner is greatly prejudiced

on the delay being condoned and he would submit that the court below failed to see that the respondent was not diligent enough and further there

was no sufficient cause shown for condoning the delay.

It is to be pointed out that the respondent Municipality having filed the suit for arrears of lease amount does not stand to benefit by not appearing

before the court deliberately and refusing to condone the delay would result in non suiting the plaintiff even at the earliest stage. As against this, if

the delay is condoned, the highest thing that would happen is that the cause would be decided on merits after hearing the respective parties. The

term ""everyday''s delay should be explained"" should not be viewed in a pedantic way and the approach of the court must be in a pragmatic

manner.

Furthermore, when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be

preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.

In so far as the present case is concerned, the reasons assigned by the respondent that the counsel and his clerk failed to note down the date of

posting of the suit in the special list and thereafter, the bundle had got mixed up with the disposal bundles and it was traced out after coming to

know about the dismissal of the suit from the petitioner when they approached the petitioner demanding the arrears of lease amount does not

appear to be tainted with mala fide nor any gross negligence or want of bona fide could be inferred.

In the case of Ram Nath Sao @ Ram Nath Sahu and Ors. 2002-3-LW-417, the Honourable Supreme Court has held that the court should not

proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. It has

further held that acceptance of the explanation should be the rule, refusal an exception more so when no negligence or inaction or want of bona fide

can be imputed to the defaulting party.

In yet another decision of the Honourable Supreme Court rendered in the case of Davinder Pal Sehgal and Anr. v. Pratap Steel Rolling Mills

Pvt. Ltd. and Ors. 2002-3-LW-414, the order was passed by the trial court holding that sufficient cause was shown for restoration and allowed

the application and in revision, the High Court set aside the said order holding that there was no consideration by the trial court separately on the

point of limitation, the Honourable Supreme Court held that the trial court had not acted in exercise of its jurisdiction illegally or with material

irregularity and the High Court was not justified in interfering with its order in exercise of its revisional jurisdiction.

In the case of N. Balakrishnan Vs. M. Krishnamurthy, , it is held by the Honourable Supreme Court that if proper explanation for the delay is

shown to the court, then it is the duty of the court to condone the delay and it is immaterial how long the delay was and that the rule of limitation is

not meant to destroy the rights of the parties.

In the present case, though the respondent was not as vigilant as it ought to have been, but its conduct does not on the whole warrant it to

castigate it as an irresponsible litigant. It is held by the Honourable Supreme Court in the decisions cited supra that once the trial court accepts the

explanation as sufficient, it is the result of the positive exercise of discretion and normally the superior court should not disturb such a finding much

less in the revisional jurisdiction unless the exercise of discretion wholly on untenable grounds or arbitrary or perverse.

Applying the said dictum to the facts and circumstances of the present case, I am of the considered view that the trial court has not acted in

exericise of its jurisdiction illegally or with material irregularity and there is no warrant for interference with the impugned order of the court below.

In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.