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Judgment
First defendant in O.S.No.265 of 1977 on the file of Principal District Munsif Court. Ambasamudram is the revision petitioner.
Plaintiff herein filed a suit for declaration that the scheduled property belongs to first plaintiff temple and for consequential injunction restraining
defendant, and his agents from in any way interfering with his possession and for mandatory injunction.
Even though suit was filed in 1977, it came for trial only in the year 1984. On 23.1.1984, the suit was dismissed for default on the ground that
Plaintiffs'' counsel represented that he has no instructions. Within 30 days plaintiff filed I.A.No.771 of 1984 to have the same restored. The
application was filed on 20.2.1984. For years together application was not taken up by court below even though an objection was filed by
petitioner as early as on 25.7.1985. Eleven years thereafter, since no action was taken on the restoration application, another restoration
application was filed as I.A. No.482 of 1995 by plaintiffs. Subsequently, I.A.771 of 1984 filed earlier came to the notice of the Court. At that time
petitioner''s counsel endorsed that in view of the pendency of earlier application, present application I.A.No.482 of 1995 is not pressed and the
same was dismissed in view of that endorsement.
Evidence was taken in I.A.No. 771 of 1984. After considering the same, trial court dismissed that application on the ground that no sufficient
cause is made out. Plaintiff preferred C.M.A.No.7 of 1996 on the file of Subordinate Court. Ambasamudram, By the impugned order lower court
allowed it and held that sufficient cause is made out for restoring the plaint. The same is challenged in this revision.
After hearing counsel for petitioner, I do not mink that any ground is made out for interference in this revision u/s 115 of CPC.
Learned counsel for petitioner submitted that the reasons mentioned in I.A.771 of 1984 and I.A.No. 482 of 1995 which was dismissed as not
pressed two inconsistent versions are made and consequently the discretion exercised by lower court is not correct. The restoration application
ought to have been dismissed.
While exercising discretion if lower court expressed opinion on the same that also will have to be taken into consideration by this Court. Lower
court has held that only because of fault of the court, earlier restoration application could not be posted and for more than 11 years plaintiffs were
put to great agony. Only because of that agony, they have filed I.A.No.482 of 1995 and especially when the same has not been pressed, it follows
that plaintiffs are not pursuing the same. In I.A.No.771 of 1984, the reason stated is - that the deponent a wife was laid up in the hospital between
20.1.1984 till 17.2.1984 and he had to attend her. The case was posted on 23.1.1984 and he could not attend the court on that date. But when
I.A. 482 of 1995 was filed, the reason stated was entirely different. It is said that there is some inconsistency between two affidavits.
When lower court has considered both the affidavits and found that sufficient ground is made out for restoration, it cannot be said that the order
was passed by lower appellate court without considering the materials.
In the recent decision of Honourable Supreme Court reported in N.Balakrishanan v. M. Krishnamurthy, AIR 1998 SCW 3139, their Lordships
have considered now section 5 of the Limitation Act will have to be interpreted. In this case, respondents cannot be said as negligent. Restoration
application was filed within 30 days. But the Court misplaced the papers and only after 11 years the same has been traced out. Thereafter,
respondents had to file another application stating some reason for restoration. In fact that application itself was not necessary. Merely because
some statement is made in that application that cannot be a ground to disbelieve the statement in the earlier affidavit. Merely because another
statement is made in the subsequent affidavit, it also cannot be found that cause made out in the earlier affidavits are false. In fact there is no
reference to the ailment at all in the subsequent affidavit. The Honourable Supreme Court while considering the same in para 13 of the Judgment
held thus,
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to
turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory
strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the
party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget
the opposite party altogether it must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would
be a salutary guideline that 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 earlier portion of the Judgment i.e, in para 11 and 12 of the Judgment, it is held thus,
Rules 8 of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but see
their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of Limitation fixes a
life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux
of time newer causes would sprout up necessiating newer persons to seek legal remedy by approaching the courts, So a life span must be fixed for
each remedy. Unending period for launching the remedy may lead to unending uncertainty and con sequential anarchy. Law of limitation is thus
founded on public policy. It is enshrined in the Maxim Interest reinpublicae 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 right of 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 legisaltively fixed period of time.
A court knows that refusal to condone delay would result In foreclosing a suitor from putting forth his cause. There is no presumption that
delay in approaching the court is always deliberate. This Court has held that the words ""sufficient cause"" u/s 5 of the Limitation Act should receive
a liberal construction so as to advance substantial Justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and The State of West Bengal
Vs. The Administrator, Howrah Municipality and Others, .
Lower appellate court was entitled to reconsider the entire question since it is an appeal against the order passed by trial court. On
appreciation of facts it held that sufficient cause is made out for restoration. So long as there is no finding that application is filed with mala fides or
as dilatory tactics, Court should also be lenient in favour of litigant. In this case there is no question of limitation since restoration application itself
was filed within one month. Lower appellate Court believed the evidence of witness. Minor contradictions regarding non-mention of name of
hospital or Doctor are all held to be not matters since the evidence was taken about 12 years after the filing of original application.
In the result, I do not find any ground to interfere in the order of lower appellate court u/s 115 of CPC and consequently the revision petition is
dismissed. No costs. Consequently, CMP. No. 20403 of 1999 is also dismissed.