Chinnathayee Ammal vs Mottaya Gounder

N.V. Balasubramanian, J.—This civil revision petition is against an order of th6 learned District Munsif, Tiruvannamali passed in I.A.No.

1086 of 1995 in O.S.No. 1253 of 1990, dated 24.9.1996 condoning the delay of 526 days in filing the petition to set aside the ex pane decree

dated 11.2.1994 passed in the above suit.

The plaintiff is the petitioner herein and the second defendant is the respondent herein. The parties are referred to as described in the suit. The

plaintiff filed a suit for maintenance against her husband, the first defendant and she also prayed for a charge over the suit properties standing in the

name of the second defendant for due payment of maintenance amount. According to the plaintiff, the suit properties were alienated by her

husband in favour of the second defendant with a view to defeat her maintenance claim in the suit. There is no dispute that summons in the suit

were served on both the defendants and the second defendant was not present in the court on 11.2.1994 on which date the suit was posted for

trial. Since the second defendant failed to appear before the court on that date, he was set exparte and the suit was decreed. Hence, the second

defendant, therefore, filed the petition on 29.8.1995 to condone the delay of 526 days in filing the petition to set aside the ex parte decree dated

11.2.1994 passed in the above suit on the ground that he was suffering from acute jaundice for twenty months, viz., January, 1994 to August,

1995 and he was confined to bed and he was taking native treatment in his village. The second defendant also stated that after slight recovery in

the month of August, 1995. He was away from his village and later he found the court notice affixed in his house and when he contacted his

counsel, he was informed that he was set ex parte on 11.2.1994 and hence, he filed the petition to condone the delay of 526 days in filing the

petition to set aside the exparte decree dated 11.2.1994.

The plaintiff has filed a counter-affidavit wherein she has stated that the second defendant engaged a counsel who filed his vakalath on

14.12.1990. She has stated that the second defendant was set exparte on 16.11.1991 for not filing the written statement, but that ex parte order

was set aside on a petition filed by the second defendant along with his written statement. The case of the plaintiff was that the case was posted in

the list on 11.2.1994 and in spite of his knowledge about that, the second defendant deliberately abstained from the court and he was set exparte.

The plaintiff has stoutly denied the averments made on behalf of the second defendant that he could not attend the court because of jaundice. She

has also stated that the averment that the second defendant was suffering from jaundice for a period of 20 months is totally false, and the second

defendant has not made out any case for condoning the delay of 526 days in filing the petition to set aside the exparte decree dated 11.2.1994.

The petitioner/second defendant has examined himself as P.W.1 and the respondent was examined as R.W.1 and no document was marked on

behalf of both the sides.

Learned District Munsif, Tiruvannamalai accepted the evidence of the second defendant and she was of the view that the second defendant was

suffering from jaundice and that there was every possibility of the second defendant being bedridden unable to move about. Learned District

Munsif also accepted the evidence of the second defendant that he was in some other town at the material time. After taking note of an earlier

decision of this Court (as mentioned in the order of the learned District Munsif) to the effect that mere fact that there is a delay of 730 days does

not mean that the delay cannot be condoned, learned District Munsif was of the view that though it was not acceptable that the second defendant

was suffering from jaundice for nearly 526 days, yet to some extent the explanation offered by him was believable and in the interest of justice the

District Munsif condoned the delay on payment of costs of Rs. 200 to other side. It is this order which is the subject matter of the present civil

revision petition.

Mrs. N. Krishnaveni, learned Counsel for the petitioner in her very strenuous argument submitted that the second defendant has not given any

reason for the inordinate delay of nearly 526 days in filing the petition to set aside the exparte decree and when the trial court itself found that the

explanation offered by the second defendant that he was bedridden for nearly 526 days was not acceptable, the trial court without any reliable

evidence should not have condoned the long delay of nearly 526 days in filing the petition to set aside the exparte decree. Learned Counsel relied

upon a decision of the Supreme Court in the case of P.K. Ramachandran Vs. State of Kerala and Another, and submitted that the delay cannot be

condoned unless the court records satisfaction that the explanation for delay was reasonable or satisfactory and it is not permissible to condone the

delay on equitable grounds. She also placed reliance on a decision of this Court in the case of United India Insurance Company Ltd. Vs. Umar

Rep. by his father guardian and Another, and submitted that the petition has not given particulars and in the absence of any relevant particulars,

sufficient cause for condonation of the long delay cannot be considered to be made out. Learned Counsel for the petitioner also relied upon a

decision of M.N. Chandurkar, C.J. in the case of Arukkani Ammal Vs. Guruswamy, and submitted that the vague allegation that the second

defendant was suffering from jaundice for about 526 days is not a ground to set aside the ex parte decree. She also placed reliance on the decision

of a Division Bench of this Court in the case of P.R. Sundaravadanam and Others Vs. P.R. Vimala and Another, and submitted that the discretion

u/s 5 of the Limitation Act to condone the delay has to be exercised judicially and cannot be exercised in arbitrary manner.

Learned Counsel for the respondent, on the other hand, submitted that the trial court has exercised its discretion in condoning the delay and

when the trial court found on the basis of evidence given by the second defendant that he was suffering from jaundice and when the trial court has

exercised its discretion on the basis of that evidence, this Court sitting in revisional jurisdiction should not interfere with that discretion exercised by

the trial court. Learned Counsel for the respondent relied upon a decision of this Court in the case of Shaba Viswanathan v. D.P. Kingsley

(1996)1 L. W. 88 and submitted that in the interest of justice the court has the power to condone the delay in filing the petition to set aside the ex

parte decree.

I have carefully considered the submissions of the learned Counsel for the parties. There is no dispute that a liberal and pragmatic approach

should be adopted in considering the petition to condone the delay in filing the petition to set aside the ex parte decree (vide: State of Haryana Vs.

Chandra Mani and others, . There is also no dispute over the proposition of law laid down by this Court in Arukkani Ammal Vs. Guruswamy, ,

that the vague allegation that parties were ill without any justifiable reason to set aside the ex parte decree, would not amount to proof of sufficient

cause. The same view was rendered by this Court in United India Insurance Company Ltd. Vs. Umar Rep. by his father guardian and Another, ,

wherein a learned Judge of this Court held that the parties are bound to produce relevant particulars and when relevant particulars are not given,

mere mention of ''administrative delay'' cannot constitute sufficient cause to condone the delay. A Bench of this Court in P.R. Sundaravadanam and

Others Vs. P.R. Vimala and Another, , held that the discretion u/s 5 of the Limitation Act should be exercised judicially and not arbitrarily and

when there is a long delay of nearly 3670 days, unless the delay is properly explained, the parties are not entitled for condonation of such delay

even though a liberal approach is adopted. In P.K. Ramachandran Vs. State of Kerala and Another, . The Supreme Court held as under;

Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have

no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor

judicious. The order condoning the delay cannot be sustained.

In the case of Shoba Viswanathan v. D.P. Kingsley (1996)1 L. W. 88, a Division Bench of this Court found that there was sufficient cause to

condone the delay in the interest of justice. Applying the law laid down by the Apex Court as well as by this Court it is clear that when there is a

competition between rendering substantial justice and bar of limitation imposed by the Limitation Act, the court should always keep in mind that it

should approach the matter of condonation of delay with a view to rendering substantial justice to the parties. Learned Counsel for the petitioner

argued that the second defendant has deliberately delayed the proceedings and hence, he is not entitled to any indulgence of the court in the matter

of condonation of delay. But, in my view, when the delay is not deliberate, but due to the circumstances beyond his control which were explained

properly either by oral or by documentary evidence before the trial court and when the trial court accepted the evidence, the delay however long it

may be, can be condoned, if the trial court has exercised its discretion properly, judicially and not arbitrarily and in the interest of justice.

In Rama Kishen v. U.P.S.R.T.C. the Supreme Court held that although the explanation put forward by the applicant for not filing the

application for compensation under the Motor Vehicles Act within the period of limitation was not found convincing, but keeping in view the facts

and circumstances of the case and cause of justice, the Apex Court condoned the delay. In Warlu v. Gangotribai (1995)(Supp.) 1 S.C.R. 37, the

Supreme Court condoned the delay of eleven years in filing the special leave petition.

I am of the view, on the facts of the case, the trial court had the opportunity of seeing the second defendant in person during the course of his

examination and found that the explanation offered by him was to some extent believable that he was suffering from jaundice and considering the

circumstances of the case and in the interest of justice, the trial court has condoned the delay. It is not a case where there was no evidence before

the trial court, but it is a case where the trial court had material in the form of oral evidence of the second defendant. Therefore, it cannot be stated

that the trial court has exercised its discretion without any evidence on record. In my view, a rigid and mechanistic approach is neither warranted,

nor would be appropriate. The learned trial Judge had in her mind the salutary principle that justice must be done and where in that view of the

matter. The learned trial Judge condoned the delay, this Court, in my view, should be very slow to interfere with the discretion exercised by the

trial Judge, Unless it is established that the discretion was exercised arbitrarily or without evidence. Though there is an inordinate delay of nearly

526 days, yet the trial court was of the view that it was not deliberate. Once the trial court has come to such conclusion that the delay was not

deliberate, but because of jaundice suffered by the second defendant and he was not in the village, this Court would not interfere with the

discretion exercised by the trial court in condoning the long delay of 526 days in filing the petition to set aside the ex parte decree. The trial court

before condoning the delay has taken into account the sickness of the second defendant and the circumstances of the case and the interest of

justice and it cannot be stated that the view of the trial court was based on any irrelevant consideration. I am, therefore, not inclined to interfere

with the discretion exercised by the trial court.

I hold that each case has to be decided on the facts of the case and though the decisions relied upon by the learned Counsel for the petitioner

held that the delay long or short, cannot be condoned on basis of mere allegation or without furnishing any particulars or where the delay was not

properly explained, the decisions have no application to the situation where the trial court has exercised its discretion properly on the facts and

circumstances of the case and where the finding was arrived at on the basis of materials on record. This Court is not concerned with the sufficiency

of the material or with the long delay, but this Court has to examine whether there were materials for the trial court to exercise its discretion. As I

find that the discretion has been exercised by the trial court on material, I am not inclined to interfere with the discretion exercised by the trial court

u/s 115 of the Code of Civil Procedure. Accordingly, the civil revision petition is dismissed. No costs.

It is not clear whether the trial court after condoning the delay, had passed any order to set aside the ex parte decree passed against the

second defendant and if that has not been passed, the trial court is directed to pass its order on the application on merits and dispose of the suit

also within a period of six months from the date of receipt of this order if the application is allowed and report compliance of this order.