A. Sadananda Bhat vs Manikya Vadiyar

R. Bhaskaran, J.—C.R.P. 1144 of 2001 is filed against an Order condoning the delay in filing an application to set aside an ex parte decree. C.R.P. 1148 of 2001 is filed against the Order setting aside the ex parte decree.

The suit was for specific performance of an agreement to sell. The agreement was dated 17th November 1995. The agreement was between the Petitioner and the Respondent who was the 1st Defendant in the suit. The agreement was in respect of the half share belonging to the 1st Defendant in the plaint schedule property which was subject-matter of partition in O.S. No. 98 of 1956 of the Sub Court, Ernakulam. Suit was filed on 9th April 1999. The interim application in the suit was posted to 20th May 1999. Defendants entered appearance on that day. It was adjourned to 17th July 1999 for written statement. Thereafter, it was adjourned to 6th September 1999 and to 8th September 1999 for written statement "finally". Again for written statement it was posted finally to 15th October 1999. On 15th October 1999, the Counsel for Defendants 2 to 7 reported no instructions. They were set ex parte and it was posted for Plaintiff''s evidence on 23rd October 1999. On 23rd October, 1999, the Respondent filed I.A. 1984 of 1999 seeking three months time for written statement. That was closed stating that the suit is posted to 15th November 1999 and if the first Defendant wanted to file written statement he could file it before that date with a petition to accept the same. On 15th November 1999 the case was adjourned to 26th November 1999 and then to 16th December 1999. On that day, first Defendant was also set ex parte. Plaintiff was examined and Exts. A-1 to A-4 were marked and the case was posted to 17th December 1999 for hearing. It was beard on 17th December 1999 and decreed on 22nd December 1999.

On 14th February 2000, I.A. 200 of 2000 was filed to get the sale deed executed. On 23rd February 2000 a draft sale deed was produced. On 28th May 2000 the court directed the filing of the original sale deed. It was produced on 3rd April 2000 and the document was registered on 6th April 2000 from the Mattancherry Sub Registry through court. The case was posted for symbolic delivery on 16th August 2000 as what was sold was only an undivided half right.

On 6th April 2000, the Petitioner had deposited the balance sale consideration of Rs. 1,13,000 and also Rs. 19,000 towards stamp duty and registration charges.

On 14th August 2000, i.e., two days before the date of delivery, the 1st Defendant filed L.A. No. 749 and 750 of 2000 to set aside the ex parte order and to condone the delay. Other Defendants also moved separate petitions for the same relief through another lawyer.

The reason stated was that the first Defendant did not get information about the posting of the case on 15th October 1999. In the objection, the revision Petitioner stated that the averments in the affidavit are false as on 23rd October 1999 he had sought three months time for written statement. In fact Defendants 2 to 6 had executed a separate vakalat to another Advocate on 14th October 1999 and the case had stood posted to 15th October 1999. The court below has however allowed the petitions filed by the first Defendant. Since Defendants 2 to 7 did not comply with the conditions, their application stands dismissed.

The trial court found that the reasons for the delay in filing the application to set aside the ex parte decree is not properly explained. However, taking into account the fact that the 1st Defendant is aged 70 and he was immobilised by a stroke the delay was condoned and the ex parte decree was set aside on payment of Rs. 2,000 as costs.

Shri K.V. Sadananda Prabhu, learned counsel for the Petitioner, argued the two cases in great detail. The learned counsel made the following submissions:

(1) There is no finding that the reasons set up by the first Defendant is sufficient to condone the delay. In fact after finding that he is guilty of laches the court cannot condone the delay.

(2) Even if the delay is condoned setting aside the ex parte decree is not automatic is done by the court below.

(3) When the statement by the first Defendant is seen to be false, the court cannot condone it.

(4) The Plaintiff has incurred huge lose in depositing the full consideration in the trial court and spending for the Registration expenses and stamp duty apart, from the litigation expenses.

On these aspects the learned counsel submits that the order of the trial court is without jurisdiction. The learned counsel stated that it was nothing but falsehood for the first Defendant to contend that he was aware of the ex parte decree only on 9th August 2000 when his son had met the Advocate''s clerk. It is because the first Defendant has sworn to an affidavit on 20th September 1999 praying for three months time to file the written statement. Therefore, the posting on 15th October 1999 must have been definitely known to the first Defendant. It is also stated that Defendants 1 to 7 are residing together and when separate vakalat was executed on 14th October 1999 for Defendants 2 to 7, they must have been very well aware of the posting on 15th October 1999. Moreover, there is nothing to show that the letter of the Advocate did not reach the first Defendant and no formal evidence adduced or affidavit is filed for this purpose.

The learned counsel for the Respondent did not attempt to establish that the is. Defendant was as a matter of fact not aware of the posting at all after 8th September 1999. He submitted that the revision Petitioner and first Defendant are first cousins, the revision Petitioner is an Advocate practising in the same court and the property is worth Rs. 15,00,000. The first Defendant apart from being aged 77 is bed ridden with paralytic stroke and high blood pressure. He cannot even move from his bed without other''s help and that he requires kind consideration especially when his valuable property is being taken away on the basis of an agreement which he disputes and without giving an opportunity to contest the suit.

It is in this context, that the question whether the order of the trial court is to be sustained or not arises. The learned counsel appearing for the Petitioner relied on the decision in Krisha Rao v. Trimbak AIR 1938 Nag 156, in which it was held that negligence on the part of the pleader''s clerk is negligence on the part of Appellant and the Appellant is not entitled to extension of time. It was also held in that decision that the court must be fully satisfied that Applicant was diligent and not negligent. Extension of time cannot be granted merely out of benevolence. In Special Tahsildar v. Madhavi and Anr. 1969 K.L.R. 676, a learned Single Judge of this Court held that a party before claiming indulgence u/s 5 of the Limitation Act has not only to prove sufficient cause but also that he was reasonably deligent in prosecuting the proceeding. However, a Division Bench of this Court has held in Plantation Corporation of Kerala Ltd. v. Hussain 1998 (1) KLT 1008, that while construing the provisions under Order IX Rule 9 when sufficient cause is shown, the reopening of the case is mandatory and when sufficient cause is not shown, it is discretionary. It is held that there may be cases where the Plaintiff could not. establish sufficient cause. Still the court should exercise its discretion depending upon facts of each case. Though that decision is under Order IX Rule 9, the same principal is applicable to petitions filed under Order IX Rule 13 also.

In N. Balakrishnan Vs. M. Krishnamurthy, , the Supreme Court has held that the words "sufficient cause" should be construed liberally. It is also stated that in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay. When the court condones the delay in exercise of its discretion, the revisional court should not normally disturb the same. But where the request for condonation of delay is refused, it would be open to the superior court to come to its own finding on the basis of explanation for the delay given by the party. In that case there was a delay of 883 days in filing the application to set aside the ex parte decree. The delay was attributed to the inaction on the part of the Advocate to whom the case was entrusted. The Supreme Court held that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation should not mean to destroy the rights of parties. They are meant to see that parties should not resort lo dilatory tactics, but seek their remedy promptly. The Supreme Court also held that condonation of delay is a matter of discretion of the Court.

The learned counsel for the Respondent also relied on various other decisions of this Court and the Supreme Court showing that the provision has to be construed liberally with a view to do justice between the parties. In this case, it is no doubt proved, that the Plaintiff has been made to spend large amounts for getting the document registered through court in execution of the ex parte decree. It is also true that there is no reason to think that the explanation offered for the delay is fully satisfactory: However, the trial court exercised the discretion by stating that the Defendant is a man of aged 70 (according to the Defendant he is aged 77) and he was immobilised by a stroke. His contention is that he has not executed any agreement for sale and the property which is alleged to have been agreed to be sold is worth Rs. 15,00,000 whereas the sale consideration shown in the agreement is only Rs. 1.25 lakhs. Since his case is that he cannot even move from his bed without the help of others, if he could not take prompt action as other ordinary people, it is not possible to take such a strict view of the matter as to deny him ah opportunity to contest the case in view of the fact that this Court and the Supreme Court have taken the view that even if the explanation for the delay is not fully satisfactory, if it is necessary in the interest of justice to exercise the discretion in favour of the Applicant and when that discretion is already exercised by the trial court, the revisional court should not interfere without sufficient reason, 1 am of the view that these revision petitions are liable to be dismissed.

It is pointed out by the learned counsel for the Petitioner that the Petitioner has spent more than 19,000 rupees towards stamp duty and registration fee for execution of the document. I make it clear that in case the Plaintiff succeeds in the suit, the document executed can be used as his title deed and no fresh execution is necessary. In other words, the enforcement of the document executed will be suspended till the disposal of the suit. Since what was agreed to be sold was an undivided right, the Plaintiff will have to file another suit to get partitioned and separate possession of half right in the property. However, if the suit is to be dismissed after trial, then I make it clear that in spite of the dismissal of the suit the Defendant will be liable to pay the Plaintiff the expenses met by him for the execution of the document since it was for no fault of the Plaintiff that he had to incur such expenses. Since the amount shown as consideration is already deposited by the Plaintiff in the court, the court may try and dispose of the suit within six months from today. If there will be delay, it is open to the Plaintiff to make necessary application before the trial court for a direction to deposit the amount in a Nationalised Bank so that the successful party will get the interest on the amount deposited. If an application is made in that respect, the trial court may consider the same and pass appropriate orders.

In the light of what is stated above, the C.R.Ps. are dismissed subject to the above observations made in this order.