Arunachalam vs Valliyappan

G. Rajasuria, J.—This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 25.08.2011 passed in I.A.

No. 307 of 2011 in O.S. No. 66 of 2007 by the learned Additional District Munsif, Karaikudi. Heard both sides.

The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:

The revision petitioner being the plaintiff filed the suit in O.S. No. 66 of 2007 for mandatory injunction and perpetual injunction. The written

statement was filed resisting the suit. Whereupon, the issues were framed. On the side of the plaintiff, the evidence was adduced and the plaintiff''s

witnesses were cross-examined by the defendant. However, when the matter was posted for the defendant''s side, no evidence was let in and for

that matter, neither the Advocate for the defendant nor the party appeared. Thereafter, the lower Court proceeded to decide the matter Order

XVII Rule 2 of the Code of Civil Procedure. Whereupon the defendant filed the application u/s 5 of the Limitation Act to get the delay condoned

in filing an application under Order IX Rule 13 of the Code of Civil Procedure, The counter affidavit was also filed resisting the application filed u/s

5 of the Limitation Act. Whereupon the lower Court condoned the delay.

Being aggrieved by and dissatisfied with the order passed by the lower Court, this Civil Revision Petition has been focussed on various grounds.

The learned Counsel for the revision petitioner/plaintiff placing reliance on the grounds of the revision, would pyramid his argument to the effect

that the lower Court having invoked Order XVII Rule 2 of the CPC and rendered a judgment on merits, the question of approaching the same

Court for getting the delay condoned in filing the application to get set aside the exparte decree, was a well-neigh impossibility; if at all the

defendant had been aggrieved, the appeal alone should have been filed and not the application u/s 5 of the Limitation Act and also an application

under Order IX Rule 13 of the Code of Civil Procedure.

In support of his submissions, the learned Counsel for the revision petitioner/plaintiff would cite the following decisions:

(i) Narayana Gounder Vs. Devaki Ammal and another,

(ii) Arumugha Gounder and Others Vs. Smt. Palaniammal and Others,

Whereas the learned Counsel for the respondent/defendant placing reliance on the decision of the Honourable Apex Court in B. Janakiramaiah

Chetty Vs. A.K. Parthasarthi and Others, , would advance his argument to the effect that inasmuch as no evidence was adduced on the side of the

absentee defendant, so to say, neither the Advocate nor the defendant was present at the time of hearing, the question of treating the decree as a

decree passed on merits, would not arise and it is deemed to be an exparte decree only despite the Court having specified in the judgment that it

was passed under Order XVII Rule 2 of the Code of Civil Procedure. Accordingly, he would pray for the dismissal of this Civil Revision Petition.

The points for consideration are:

(i) Whether the application filed u/s 5 of the Limitation Act itself was not tenable in view of the fact that the decree passed by the lower Court was

one allegedly on merits and that only appeal would lie as against such decree?

(ii) Whether there were sufficient grounds for condoning the delay?

(iii) Whether the lower Court correctly exercised its discretion or not?

All the above three points are taken up for discussion together as they arc inter-linked and interwoven with one other.

Point Nos. (i) to (iii)

At the outset itself, I would like to refer to the decisions relied on by the learned Counsel for the revision petitioner/plaintiff thus:

(i) Narayana Gounder v. Devaki Ammal and another reported in 1999

(II) CTC 439. (ii) Arumugha Gounder and Others Vs. Smt. Palaniammal and Others,

Per contra, the learned Counsel for the respondent/defendant would hit the right note by citing the decision of the Honourable Apex Court in

B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and Others, Certain excerpts from it, would run thus:

The Explanation permits the court in its discretion to proceed with a case where substantial portion of evidence of any party has already been

recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power

given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that: (a) substantial

portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the

hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit

when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an

exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence

or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit

has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the

court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other

provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words

in the Explanation are ""proceed with the case"". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by

the court or not.

In Rule 2, the expression used is ""make such order as it thinks fit"", as an alternative to adopting one of the modes directed in that behalf by

Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto

gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party

has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules

2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any

special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While

Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction

between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has

committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been

conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under

given circumstances, the absentee party is deemed to be present.

The aforecited precedent of the Honourable Apex Court is the recent decision governing the field. A mere running of the eye over it would

clearly indicate and exemplify that if a decree is passed without recording evidence at least partly, of the absentee party, the question of treating it

as the one passed under Order XVII Rule 2 of the Code of Civil Procedure, does not arise and it is deemed to be an exparte decree only and

such a decree can be got set aside on petitioning the same trial Court.

As such, in view of the settled position of law, I would proceed to consider the question of condoning the delay of 220 days in filing the

application to get set aside the exparte decree, which resulted in view of an accident. The medical certificate was also filed on the side of the

defendant. Whereupon the lower Court thought it fit to give an opportunity to the defendant subject to payment of costs.

I would like to refer to the following decisions of the Honourable Apex Court:

(i) Improvement Trust, Ludhiana Vs. Ujagar Singh and Others, Certain excerpts from it, would run thus:

The property was put to an auction-sale on 12-8-1992. Respondent 5 herein M/s. Jagan Singh and Company (hereinafter shall be referred to

as ""the Company"") offered Rs. 22,65,000, and thus was declared as the highest bidder. Sale was knocked down in its favour, and later confirmed

in its favour.

The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. The executing court

then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of

the judgment-debtor on 19-3-1993, 17-4-1993, 8-5-1993 and 29-5-1993. However, on the aforesaid dates none appeared on behalf of the

appellant. Consequently, the evidence of the appellant judgment-debtor was closed. As a necessary consequence thereof the appellant''s

objections came to be dismissed in default due to non-appearance.

* * *

Be that as it may, we are of the opinion that the delay in filing the first appeal before the District Judge, Ludhiana, for setting aside the sale has

not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, the appellant had taken all possible steps to

prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile advocate, and if even thereafter

the appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner

the appellant came to know about the dismissal of its objection filed before the executing court, under Order 21 Rule 90 CPC it mode enquiries

and filed the appeal.

While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good

grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From

the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter.

* * *

Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It

is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or

prejudice. It is the duty of the court to see to it that justice should be done between the parties.

For the aforesaid reasons the impugned orders passed by the appellate court, and the order passed by the High Court, are hereby set aside

and quashed. As a consequence, the matter stands remitted to the executing court for deciding the appellant''s application filed under Order 21

Rule 90 CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and Respondent 5,

both would appear before the executing court on 20-7-2010. Being an old case an endeavour would be made by the executing court to take up

the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have

expressed no opinion on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits.

A plain reading of the aforesaid decision would exemplify and demonstrate that the delay could be condoned on sound reasons. The factual matrix

involved in the cited precedent was that the application under Order 21 Rule 90 of the Code of Civil Procedure, filed by the judgment debtor for

getting the Court auction sale set aside, was dismissed, as against which appeal was filed with the delay. At that time, the delay was not condoned

by the Court concerned, relating to which the Honourable Supreme Court pointed out that the case was such that the delay ought to have been

condoned.

(ii) Balwant Singh (Dead) Vs. Jagdish Singh and Others, Certain excerpts from it, would run thus:

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

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 right that has accrued to it in law as a result of

his acting vigilantly.

In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd.,

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of

limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In

other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the

decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed.

The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone

delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf

should be exercised to advance substantial justice, As has been observed by the Madras High Court in 4 I.D (N.S.) 899 :

***

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in

question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the

court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that

ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the

matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for

consideration;

The expression ""sufficient cause"" implies the presence of legal and adequate reasons. The word ""sufficient"" means adequate enough, as much

as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to

accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious

men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one.

These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting

such a law does not stand frustrated.

We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides

acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test

is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced

Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)

14 As such, I am of the view that since the lower Court itself exercised its discretion in condoning the delay on the ground of ill-health of the

defendant which resulted due to the accident, I am of the view that no interference in revision is warranted. Point Nos. (i) to (iii) are answered

accordingly. In the result, this Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.