A. Mary and A. David vs A. Fathima and Mariya Vaanmathi

S. Tamilvanan, J.—Heard both the learned Counsel appearing for the Petitioners as well as the Respondents.

This Civil Revision Petition has been filed u/s 115 Code of Civil Procedure, challenging the order, dated 05.10.2010 made in I.A. No. 1970 of

2009 in O.S. No. 271 of 2008 on the file of the Principal District Judge, Coimbatore.

It is seen that the Interlocutory Application in I.A. No. 1970 of 2009 was filed u/s 5 of Limitation Act to condone the delay of 247 days in filing

a petition to set aside the ex-party preliminary decree, passed on 19.01.2009 in the aforesaid suit. The Interlocutory Application was dismissed by

the Court below, as per the impugned order, dated 05.10.2010, aggrieved by which, this revision has been preferred.

The Petitioners herein are the Defendants in the suit that was filed by the Respondents herein, seeking partition and separate possession of 1/4th

share in the plaint schedule property, apart from other consequential relief''s.

It is seen that the Petitioners herein have stated that the ex-party preliminary decree was passed in the suit on 19.01.2009, when the second

Petitioner and his mother, the first Petitioner were affected by chickenkunya and unable to file a petition to set aside the ex-party decree and

subsequently, received notice on 22.10.2009 in I.A. No. 247 of 2009, that was relating to the final decree application, filed by the Respondents

herein.

Learned Counsel appearing for the Petitioners submitted that while deciding the application filed u/s 5 of Limitation Act, the Court has to take

liberal approach in condoning the delay. In support of his contention, the learned Counsel appearing for the Petitioners relied on the following

decisions:

Ram Nath Sao v. Gobardhan Sao, 2002 (2) M.L.J 85 (S.C.)

Balakrishnan v. Krishnamurthy, 1999 (1) MLJ 114 (S.C.)

Rukmani Vs. Ranganayaki,

In Ram Nath Sao v. Gobardhan Sao, reported in 2002 (2) M.L.J 85 (S.C.), the Hon''ble Supreme Court has held as follows:

Thus it becomes plain that the expression ""sufficient cause"" within the meaning of Section 5 of the Act or Order 22, Rule 9 of the Code or any

other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafides

is imputable to a party. In a particular case whether explanation furnished would constitute whether explanation furnished would constitute

sufficient cause"" or not will be dependent upon facts of each case. There cannot be a strait-jacket formula for accepting or rejecting explanation

furnished for the delay caused in taking steps. But one thing is clear that the Courts 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.

The Hon''ble Apex Court has held in the aforesaid decision, that while considering a petition to condone the delay, Court should not lose right of

the fact that by not taking steps within the time prescribed, valuable right that has accrued to the other party should not be defeated by condoning

delay in a routine manner. However, by taking a pedantic and hyper-technical view of the matter, the explanation furnished u/s 5 of the Limitation

Act should not be rejected when stakes are high and there are arguable points relating to facts and law are involved in the case causing erroneous

loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to

have a decision on merit. While considering the matter, the Courts have to strike a balance, considering the resultant effect of the order it is going

to pass upon the parties either way.

In Balakrishnan v. Krishnamurthy, reported in 1999 (1) MLJ 114 (S.C.), the Hon''ble Apex Court has held that condo nation of delay is a

matter of discretion of the Court u/s 5 of Limitation Act, which does not say that such discretion can be exercised only if the delay is within certain

limits. If the explanation does not smack of maladies, the Court should show utmost consideration to the suitor. But, it would be a salutary

guideline, hence when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his

loss. In the aforesaid decision, the Hon''ble Supreme Court has held as follows:

The Appellant''s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not

very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at

short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an

omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with

drastic consequences.

In Rukmani Vs. Ranganayaki, , this Court has held that reason given for condoning delay is the only criterion and the length of delay is not the

criterion to decide the same and accordingly, inordinate delay of 1590 days in filing a petition to condone the delay was allowed, on the ground of

substantial justice without giving importance to the length of delay.

Mr. N. Manokaran, learned Counsel appearing for the Respondents submitted that even as per the additional typed set filed by the revision

Petitioner, it has been stated that pursuant to the settlement deeds, dated 21.09.1988 and 13.06.2002, the Petitioners herein sold the property on

26.01.2007, as per Document Nos. 751/07 and 752/07. In the aforesaid circumstances, it is clear that even according to the Petitioners, they have

no subsisting right in the property, after selling the property in favor of third parties. As the Petitioners have no subsisting right in the property, they

have no locus stand to maintain the Civil Revision Petition. Further, the learned Counsel appearing for the Respondents submitted that in the

Interlocutory Application in I.A. No. 247 of 2009, seeking final decree, notice were served on the Petitioners and that was acknowledged on

22.06.2009 itself by them. Similarly, notices in I.A. No. 269 of 2009 were served on the Petitioners, for which acknowledgement cards were

produced before the Court below. Having knowledge about the final decree application on 22.06.2009, the Petitioners herein came forward with

a petition to condone the delay u/s 5 of Limitation Act, only on 03.11.2009, nearly five months after the notice served on them. Therefore, the

delay caused by the Petitioners was deliberate, which cannot be condoned by taking a liberal view.

According to the learned Counsel appearing for the Respondents, the delay has not been satisfactorily explained, as contemplated u/s 5 of

Limitation Act, since the Petitioners were put on notice even on 22.06.2009 itself about the filing of the final decree application and they came

forward with a petition to condone the delay only on 03.11.2009 and further, as per the documents produced by the Petitioners, they executed

sale deed, even prior to the filing of the suit and therefore, they have no substantial right in the property to maintain this revision, if at all the

subsequent purchaser could have imp leaded themselves as parties.

Learned Counsel appearing for the Respondent, in support of his contention relied on the following decisions:

Murugan and Anr. v. K. Elumalai and Anr., 2010 4 LW 180

Sundar Gnanaolivu v. Rajendran Gnanavolivu, 2003 1 LW 585

In Ram Nath Sao v. Gobardhan Sao, reported in 2002 (2) M.L.J 85 (S.C.), the Hon''ble Apex Court has held that u/s 5 of Limitation Act,

sufficient cause"" has received the liberal construction, so as to advance substantial justice when no negligence or inaction or want of bonafide is

imputable to the parties, seeking condo nation of delay.

In the instant case, the Petitioners have stated that they were suffering from Chickengunia and therefore, they could not approach the Court

below on time with a petition to set aside the ex-party preliminary decree. However, as pointed out by the learned Counsel appearing for the

Respondents, it is seen that the Petitioners were put on notice on 22.06.2009 itself in the final decree application filed by the Respondents before

the Court below. However, they have filed a petition to condone the delay only on 03.11.2009 for the reasons best known to them. Having

knowledge about the filing of the final decree petition by the Respondents before the Court below, the Petitioners cannot raise a plea that there

should be liberal approach in allowing the petition to condone the delay, as the delay has to be construed as deliberate. As rightly contended by the

learned Counsel appearing for the Petitioners, the Court has to consider the bonafide reason, based on the conduct of the parties, to meet the ends

of justice and to prevent abuse of process of Court. Nearly five months after receiving the notice, relating to final decree application, the Petitioners

have come forward with this petition, seeking an order to condone the delay, stating that they were suffering from chickengunia, without any

supporting material.

As per the documents produced and the claim of the Petitioners, they had already sold the property on 23.01.2007 itself to the third parties. In

such circumstances, the Petitioners have no subsisting right in the property. Merely because they are Defendants, they cannot prefer the revision,

challenging the ex-party order of preliminary decree, that was passed by the Court below, without any subsisting right in the property. Having

received notice on final decree petition filed by the Respondents and when the same is pending before the Court below, without any subsisting right

in the property, the Petitioners cannot raise a plea that the dismissal of the petition by the Court below would lead to failure of substantial justice.

The Petitioners have not satisfactorily explained the delay caused by them. Similarly, the dismissal of the petition, on the facts and circumstances of

the case would not lead to failure in rendering substantial justice and further, there is no illegality or material irregularity in the impugned order

passed by the Court below, so as to warrant any interference of this Court under the Provisional jurisdiction and accordingly, this Civil Revision

Petition is liable to be dismissed.

In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No order as to costs.