A. Natesan vs P. Erulappan

R. Mala, J.—This Civil Revision Petition arise out of fair and decretal order dated 28.2.2007 passed in I A. No.437 of 2006 in O.S. No 236 of 1999 on the file of District Munsif Court, Tiruchengodu, for condonation of delay 2239 days in filling the Petition to set aside the ex parte decree.

The matrix of the case is as follows:

(i) The Revision Petitioners as the Plaintiffs filed a Suit in O.S. No .236 of 1999 for permanent injunction against the Defendant Respondent herein restraining him and his supporters from interfering or disturbing the Plaintiffs'' peaceful possession and enjoyment of the Suit property. In the Suit, the Defendant Respondent herein had entered appearance, but, he did not defend his case before the Court. Hence, the Suit was decreed as ex parte on 13.12.1999. Therefore, the Defendant Respondent herein came forward with the Application in I.A No. 437 of 2006 for condonation of delay of 2239 days in filling the Petition to set aside the ex parte.

(ii) The Respondent, in his Affidavit, had stated that he appeared before the Court through his Counsel. He further submitted that since he was suffering from ailment and old age, he was unable to walk. It was further stated that his Counsel had intimated him that after the receipt of a Letter, it is sufficient to him to appear before the Court. It was further stated that as he was suffering from Asthma, he was taking treatment from Dr. Jamuna Devi. Since he had not received any Letter from his Counsel, he sent his Sister''s husband Eswaran to meet the Counsel, but on that day, as the Counsel went to Namakkal, he was not available in town. After the receipt of a registered letter, he sent his sister''s husband Eswaran to meet the Counsel on 1.3.2006, than only, he came to know from him that the Suit was decreed on 13.12.1999. Hence, he has come forward with this Application to set aside the ex parte decree and also for condonation of delay of 2239 days in preferring this Petition to set aside ex parte decree.

(iii) Resisting the same, the Plaintiffs/Revision Petitioners herein filed a detailed Counter stating that the Defendant has not filed any document to substantiate his averments and he is hale and healthy. Further, the Defendant has not given the date on which his sister''s husband went to meet the Counsel at Tiruchengode. Furthermore, he has not filed a Letter, which was received from his Counsel. After being kept quiet for nearly 7 years, he come forward with this Application to condone the delay of 2239 days in preferring the Petition to set aside the ex parte decree with an ulterior motive. Hence, he prayed for dismissed of this Application.

(iv) The learned Trial Judge, after hearing both sides, allowed the Application on payment of cost of Rs. 1,000/- Aggrieved against the same, the present Revision Petition has been preferred by the Plaintiffs/Revision Petitioner.

The learned Counsel appealing for the Revision Petitioner/Plaintiffs has submitted that the learned Trial Judge has not considered the above aspects in Para 4 of its fair order and after considered the Petition, affidavit, document and also the Counter, accepted the averments made by the Defendant/Petitioner and directed him to pay a sum of Rs 1.000/- to the Respondent Revision Petitioner herein, failing which, the Petition shall stand dismissed, on 28.2.2007. He further submitted that the said order has been passed by the Trial Judge without giving any reason, therefore, it is a non-speaking order. To substantiate his arguments, the learned Counsel appearing for the revision Petitioner has relied upon the decision of the Honourable Apex Court in Balwant Singh (dead) v. Jagdish Singh and other, 2010 (8) SCC 685, and another decision of the Honourable Apex Court in Lanka Venkateswarlu (D) by LRs. v. State of A.P. and other, 2011 (5) MLJ 167, and prayed for setting aside the order of the Trial Judge.

Resisting the same, the learned Counsel appealing for the Defendant/Respondent has submitted that once the discretion has been exercised by the Trial Court, the Revision Court need not to interfere with the finding and discussion of the Trial Court and liberal approach will be followed while condoning the delay. To substantiate the same, the learned Counsel has relied upon the following decisions as follows:

(i) N. Balakrishnan v. M. Krishnamurthy, 1998 (2) CTC 533 (SC) : 1998 (7) SCC 123;

(ii) The decision of the Honourable Apex Court in Bhagmal v. M.P. Cooperative Marketing and Consumer Federation Ltd. and others, 2003 (11) SCC 727;

(iii) A decision in the case of S. Ganesharaju (D) there LRs. and another v. Narasamma (D) there L.Rs. and others, 2012 (4) Scale 152;

(iv) The decision of this Court in the case of A. Seyed Hakim and others v. K.S. Maideen and another, 2012 (1) CTC 801;

I have considered the rival submissions made on either side and perused the records.

The only point to be decided is as to whether the order passed by the learned Trial Judge for condonation of the delay of 2239 days is sustainable or not ?

A perusal of Affidavit filed by the Defendant/Respondent herein shows that after receiving the summons, the Defendant came to know about the Suit proceedings from his Counsel and since the Written Statement had not been filed by him, ex parte decree was passed against him on 13.2.1999. Therefore, he had filed the Application in I.A No. 437 of 2006 for condonation of delay of 2239 days in preferring the Petition to set aside the ex parte decree, on 3.3.2006 nearly 6 years. In the Affidavit of Defendant, it was stated that he was not doing well and he was suffering from Asthma, for which he was taking treatment from Dr. Jamuna Devi. It was further stated that he received a registered Letter only in the year 2006. But, to substantiate his claim, the Defendant has not examined Mr. Eswaran, who is none other than the brother-in-law, before the Court to show that on 1.3.2006. Mr. Eswaran met the Counsel, who appeared on behalf of the Respondent/Defendant in the Trial Court and then only, he came to know about the ex parte decree. A perusal of records also shows that no one was examined and no document has been filed on behalf of the Defendant before the Court to prove his averments Further, no scrap of papers have been filed by the Defendant with regard to the treatment taken by him from Dr Jamuna Devi.

At this juncture, it is appropriate to incorporate the Order passed in Para 4 of the Trial Court is as follows:

"Petition, Affidavit, Counter and others documents have carefully scnitinized. The averment in the Petition is accepted to avoid so many factors. This Petition is allowed. The Petitioner is directed to pay Rs. 1,000/- to the Respondent, failing which, the Petition shall stand dismissed."

The learned Trial Judge has not given any reason as to what prompted has to condone the delay. So, the order passed by the earned Trial Court is not a speaking order because, on perusal, Para 2 is the averments of the Affidavit, Para 3 is the averments of the Counter and Para 4 is the order. On perusal of order, it is seen that no reason has been assigned by the learned Trial Judge as to why he has accepted the Affidavit filed by the Defendant and allowed the Application. In such circumstances, it is appropriate to consider the decision relied upon by both sides Counsel.

The decision of the Honourable Apex Court m the case of N. Balakrishnan v. M. Krishnamurthy, 1995 (2) CTC 533 (SC) : 1998 (7) SCC 123, wherein, it was held that once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in Revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds oi arbitrary or perverse. But, it is a different matter, when the First Court refuses to condone the delay. It is appropriate to incorporate Paras 8 to 11 of the Judgment and the same are extracted hereunder:

"8 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.

It is axiomatic that condonation of delay is a matter of discretion of the Court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in Revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or Arbitrary or perverse. But it is a different matter when the First Court refuses to condone the delay. In such cases, the Superior Court would be free to consider the cause shown for the delay afresh and it is open to such Superior Court to come to its own finding even untrammelled by the conclusion of the Lower Court.

The leason for such a different stance is thus:

The Primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

Rules of Limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek then remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted tune would never revisit During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to destroy the lights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period or time."

Therefore, tins citation is not applicable to the facts of the present case

The decision of the Honourable Apex Court in the case of Bhagmal v. M.P Co-operative Marketing and Consumer Federation Ltd. and others, 2003 (11) SCC 727, wherein, it was held that normally the High Court would be wary interfering with an order passed in the exercise of a discretion conferred by law particularly when such discretion was exercised to enable a party to pursue his statutory remedy or Appeal. No doubt, the discretion has to be exercised judicially There is again no doubt that the delay in filing the Appeal was apparently very long. Hence, it is appropriate to incorporate Paras 3 and 5 of the said decision and the same are extracted here under:

"3 Normally the High Courts would be wary in interfering with an order passed in the exercise of a discretion conferred by law particularly when such discretion was exercised to enable a party to pursue his statutory remedy or Appeal No doubt the discretion has to be exercised judicially. There is again no doubt that the delay in tiling the Appeal was apparently very long. Nonetheless the High Court in exercising Writ jurisdiction should have been slow to upset a benefit granted to a party in having his statutory remedy to be pursued by condoning the delay albeit its length.

Whether those events were sufficient for condoning the delay or not was considered by the Appellate Authority in exercise of its discretion and it showed inclination to accept them for condoning the delay. As the Appellate Authority had done so in its discretion it is well within the jurisdiction vested under law. In such a situation it was not proper that the High Court in exercise of the extraordinary jurisdiction under Article 226 or 227 of the Constitution upset such a finding granted to the Appellant which only enabled him to have the statutory remedy or Appeal pursued further."

The decision of the Honourable Apex court in the case of S. Ganesharaju (d) their L.Rs. and another v. Narasamma (d) their L.Rs. and others, 2012 (4) Scale 152, wherein, it was held in Paras 15 to 19 as under:

"15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice.

Unless Respondents are able to show mala fide in not approaching the Court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has titled more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.

Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.

We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate.

In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the Courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that Appellants have shown sufficient cause seeking condonation of delay and same has been explained satisfactorily."

Another decision of this Court, which was rendered by me, in the case of A. Sayed Hakim and others v. K.S. Maideen and another, 2012 (1) CTC 801, wherein, it was held in Paras 18 and 20 as follows:

"18. For condonation of delay, the discretion has been deliberately conferred on Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice Sufficient cause for not making the Application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ''sufficient cause'' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellants.

As per the dictum laid down in N. Balakrishnan v. M. Krishnanmurthy, 1998 (2) CTC 533 (SC) : 1998 (7) SCC 123, in which, it is held as follows:

"It is axiomatic that condonation of delay is a matter of discretion of the Court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be un condonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the Superior Court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or Arbitrary or perverse. But it is a different matter when the First Court refuses to condone the delay. In such cases, the Superior Court would be free to consider the cause shown for the delay afresh and it is open to such Superior Court to come to its own finding even untrammeled by the conclusion of the Lower Court."

The decision of the Honourable Apex Court in the case of Balwant Singh (Dead) v. Jagdish Singh and others, 2010(8) SCC 685, wherein, it was held that even if "sufficient cause" has to receive liberal construction, it must squarely fall within concept of reasonable time and proper conduct of the party concerned Liberal construction cannot be equated with doing injustice to other party. Hence, it is appropriate to incorporate Paras 25 and 26 of the judgment and the same are extracted here under:

"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within tire concept or reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of on party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justices can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable light that has accrued to it in law as a result of his acting vigilantly."

The decision of the Apex Court in the case of Lanka Venkateswarlu (D) by LR.s. v. State of A.P. and others, 2011 (5) MLJ 167, wherein, various catens judgment have been considered and it was held that The concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay Whilst considering Applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers; especially judicial powers, have to lie exercised within reasonable bounds, known to the law. Hence, it is appropriate to incorporate Para 26 of the judgement and the same is extracted as under:

"26. We are at a loss of fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering Applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers."

Considering the decisions relied upon by the learned Counsel appearing for both sides along with the finding of the Trial Court in Para 4 of its judgment, I am of the view that the Trial Judge has not rendered any specific finding to condone the delay. Even though the Defendant/Respondent herein had filed the Petition to condone the delay of 2239 days, he ought to have given a reason as to why he has not filed the Written Statement and what is the reason for delay of 2239 days. Even he has mentioned in his Affidavit that he is an Asthma patient and he is not able to walk due to his old age, he has not filed any scrap of paper to show that he has taken treatment from 13.2.1999 onwards and he has not let in evidence to substantiate his averments made in the Affidavit.

As per the dictum of the Apex Court Lanka Venkateswarlu (D) by LR.s. v. State of A.P. and others, 2011 (5) MLJ 167, while considering Applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason.

Considering the same, I am of the view that the Respondent who is the Defendant/Petitioner in I.A. No. 437 of 2006 has not given any reason for his non-appearance before the Court on 13.12.1997 an also not given a specific reason for the delay of 2239 days in filing the Petition to set aside the ex parte decree.

It is also pertinent to note that as per the dictum of the Honourable Apex Court Lanka Venkateswarlu (D) by LR.s. v. State of A.P. and others, 2011 (5) MLJ 167, once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant particularly, when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable light that has accrued to it in law as a result of his acting vigilantly Considering the dictum laid down in the case of Balwant Singh (Dead) v. Jagdish Singh and others, 2010 (8) SCC 685, because of condonation of delay the right of the Petitioner/Plaintiff was affected. Applying the dictum of Balwant Singh''s case and also the Lanka Venkateswarlu''s case, I am of the view that the order of the Trial Court is unsustainable.

In such circumstances, I am of the view that the learned Trial Judge has not considered tins aspect in proper perspective. So, the fair and decreetal order passed by the learned Trial Judge is unsustainable and the same is liable to be set aside. Hence, the fair and decreetal order passed in I.A. No.437 of 2006 made on 28.2.2007 on the file of District Munsif Court, Tiruchengode is hereby set aside.

In view of the above, this Civil Revision Petition is allowed. The fair and decreetal order dated 28.2.2007 passed in I.A. No 437 of 2006 is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.