K. Madhavan vs K.N. Sekar

K. Ravichandrabaabu, J.—The petitioner is the defendant in a suit for specific performance filed by the respondent herein. He is aggrieved

against the order of the court below in rejecting his application filed u/s 5 of the Limitation Act, seeking to condone the delay of 369 days in filing a

petition to set aside the exparte decree passed in the said suit on 16.06.2010. Short facts for consideration in this civil revision petition are as

follows:

The plaintiff/respondent herein filed O.S. No. 187/2009 on the file of the District Court, Thiruvallur against the petitioner for a specific performance

of an agreement of sale dated 28.07.2005. It is his case that the petitioner agreed to sell vacant land measuring an extent of 50 cents and

comprised in Survey No. 1460/2 situated at Lakshmipuram Madura, Mahavaram Village, Ambattur Taluk, Thiruvallur District for a total sum of

Rs. 60,00,000/- by receiving an advance amount of Rs. 50,000/-. It is his further case that on 31.10.2005, a further sum of Rs. 10,00,000/- was

paid by cash to the defendant. Thereafter, the defendant failed to produce the documents such as Patta, Chitta and Adangal as well as the Death

Certificate of one Muniyammal. Even though the plaintiff was willing to perform his part of contract, the defendant avoided the completion of sale.

Therefore, the plaintiff issued a legal notice on 18.03.2007. In the meantime, when the defendant was trying to alter the nature of the suit property,

he filed one more suit in O.S. No. 167/2007 on the file of the District Munsif Court, Thiruvotriyur for permanent injunction and also for mandatory

injunction against the defendant. As the defendant/petitioner failed to execute the sale deed, the plaintiff filed the above said suit for specific

performance as well. In the said suit, an exparte decree came to be passed on 16.06.2010. Consequent upon such exparte decree, the plaintiff

filed E.P. No. 144/2010 for execution of the said decree. On 14.12.2010, notice in the E.P. was served on the petitioner/defendant. Thereafter,

he filed an application u/s 5 of the Limitation Act on 21.07.2011, seeking to condone the delay of 369 days in filing the set aside application. The

court below rejected the said application and aggrieved against the same, the present civil revision petition is filed by the petitioner.

Heard Mr. K. Balaji, learned counsel appearing for the petitioner and Mr. T.V. Ramanujam, learned senior counsel appearing for the

respondent.

It is contended by the learned counsel for the petitioner that the petitioner had given instruction to his counsel at lower court only to file set aside

petition in the suit. However, the said counsel instead of filing a petition to set aside the exparte decree, filed his vakalat in the E.P. and contested

the same. When the respondent/plaintiff had already filed a suit in O.S. No. 166/2007 for permanent injunction, the present suit filed by him for

specific performance is barred under Order 2 Rule 2 C.P.C., apart from the fact that it is also barred by limitation. In support of his submission,

the learned counsel for the petitioner relied on the following decisions, (i) Shoba Viswanathan Vs. D.P. Kingsley, (ii) Arun Alexander Lakshman,

Proprietor Alraj Builders and V.E. Arun Vs. A.P. Vedavalli, (iii State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Others,

Per contra, the learned senior counsel appearing for the respondent submitted as follows:

The reasons assigned by the petitioner before the court below in the petition to condone the delay, are found false and once it is found so, the court

cannot condone the delay as has been rightly done in this case. The suit filed in O.S. No. 166/2007 by the respondent/plaintiff was already

decreed on 14.12.2007 and the petitioner had suppressed this fact while filing the present application before the court below. Mere making an

allegation against a counsel cannot be a ground for condoning the delay. The petitioner had not proved with material evidence with regard to his

illness. He entered appearance in the suit by receiving suit summon. He has not made an allegation against his counsel in his affidavit filed in support

of the Section 5 application. The petitioner was set exparte in the execution proceedings and such exparte order was challenged in C.R.P. No.

3089/2012 by the petitioner. However, he has withdrawn the same subsequently and thus, the order passed in the Execution Petition has become

final, conclusive and binding on the parties. In support of his contention, the learned senior counsel for the respondent relied on the following

decisions:

(i) Union Bank of India, Oppanakara Street, Coimbatore-641 001 Vs. K.R. Jewellers, KRS Suresh and KRSA Sundari

(ii) Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another,

(iii) Sundar Gnanaolivu rep. by his Power of Attorney Agent Mr. Rukmini Vs. Rajendran Gnanavolivu Rep. By its Power of Attorney Agent Veina

Gnanavolivu

(iv) R. Jagadeesan (died), Sakunthala, Magendran and Parthipan Vs. Santhakumari,

(v) G. Jayaraman Mudaliar Vs. Devarajan

(vi) Shanmugam Vs. Chokkalingam,

(vii) Kaliammal, Ardhanari, Valliammal and Kottathooran Vs. Sundharammal and Ramalingam,

(viii) 2008 (5) CTC 628, Ranganatha Iyer v. Thangarasu;

(ix) 2004 (3) MLJ 36, Rathinathammal v. Muthusamy and others;

(x) Rajammal Vs. Rajagopal and Others,

(xi) 2009 (7) MLJ 746, Muthusamy v. Subramanian;

(xii) K.S. Rajendhiran Vs. Dr. M.R. Muralikrishnan and M. Arthi,

(xiii) 100 LW 666, Srinivasalu, E v. Krishnammal and others;

The point for consideration in this civil revision petition is as to whether the order passed by the court below in rejecting the application filed by

the petitioner seeking to condone the delay of 369 days is sustainable, based on the facts and circumstances of the present case.

The defendant/petitioner herein seeks to condone the delay of 369 days. Needless to say that a party who files an application u/s 5 of the

Limitation Act has to plead and prove the sufficient cause for his non appearance on the day, when the matter was decided exparte. The reasons

stated in the petition should be genuine, true and acceptable by the court as a reasonable cause for such non appearance on the particular day.

Length of the delay cannot be the sole criteria for rejecting or allowing the application. Equally, it is not necessary to explain each and every day''s

delay, however, that does not mean that there need not be any explanation with cogent and convincing reasons. Once the court finds that the

reasons given are genuine and sufficient one to condone the delay, then by exercising its discretionary power, the court may condone the delay. If

the reasons stated are found to be false, untrue, or not a sufficient and reasonable cause, then the court has to reject the application. Otherwise, the

scope and ambit of Section 5 of the Limitation Act would be defeated and parties will file such applications before the courts casually at their will

and pleasure by taking the court for granted that their applications will be allowed automatically. Keeping the said principle in mind, let me consider

the present case.

The petitioner filed a supporting affidavit before the court below. It is stated therein that the petitioner received the suit notice and entered

appearance through his counsel. When the matter was posted for filing written statement, he could not instruct his counsel to prepare the same and

file it in time as he was suffering from jaundice. Therefore, the suit came to be decreed exparte on 16.06.2010. Pursuant to the decree, the

respondent filed E.P. No. 144/2010 and though the petitioner received the notice in the E.P., as he was taking treatment for jaundice regularly in

Kerala from May 2010, he could not appear before the court and file his written statement. After receipt of the notice in E.P., he requested his

counsel to get time so as to enable him to file the petition to set aside the exparte decree. However, on 18.04.2011, he was set exparte in the E.P.

also. He was suffering due to jaundice from June 2010 to June 2011 and recovered from such illness only during June 2011. Immediately, he

instructed his counsel to file a petition to set aside the exparte decree. The suit filed for specific performance is barred under Order 2 Rule 2

C.P.C. since the plaintiff had already filed a suit in O.S. No. 166/2007 for permanent injunction only. The suit is also barred by limitation as the

plaintiff filed the same only on 06.11.2009 for enforcing the agreement dated 28.07.2005.

The said application was resisted by the respondent by contending that the same was filed six months later after filing vakalat in the execution

proceedings. Thus, there is no bonafide. Even along with the application u/s 5 of the Limitation Act, the petitioner had not filed any written

statement. It is also denied by the respondent that the petitioner was taking any treatment at Kerala during the relevant period.

A perusal of the order passed by the court below would show that the petitioner received the summons in the suit and entered appearance

through his counsel on 25.01.2010. The case was adjourned from time to time by filing written statement. As the written statement was not filed

inspite of granting time on several occasions, the petitioner was set exparte on 28.04.2010. Thereafter, the suit also came to be decreed exparte

on 16.06.2010. The respondent/plaintiff filed execution petition in E.P. No. 144/2010 and in the said execution proceedings, notice was served on

the petitioner on 14.12.2010 at his residence at No. 2, Gandhi Street, Lakshmipuram, Madras-99. Thus, it is manifestly clear that the petitioner is

fully aware of the pendency of the suit as he had admittedly entered appearance on 25.01.2010. It is his case that he was staying at Kerala and

taking natural treatment for one year continuously from the month of June 2010 to July 2011. If that is his case, he has not explained as to how he

came to receive the notice in the execution proceedings on 14.12.2010 in between at his Chennai residence. His presence at Chennai on

14.12.2010 is proved by the service of summons in the execution proceedings. On the other hand, the petitioner has not proved by letting in any

evidence that he was away from Chennai from the first week of June 2010 to the first week of July 2011. Therefore, it is crystal clear that the

petitioner had invented a story as if he was taking treatment for jaundice at Kerala at the relevant point of time. The petitioner had made a

falsehood and created false reasons to get over the period of limitation. When the petitioner was examined as P.W. 1, in the proof affidavit filed by

him, it is stated at paragraph No. 3 as follows:

Even during the cross-examination, he has deposed as follows:

However, he admits in the cross-examination that he had received the summon in the execution proceedings on 14.12.2010. Admittedly, the said

summon was issued to the petitioner''s address at Chennai, as found in his petition. Therefore, the fact remains that he was very much available on

14.12.2010 at Chennai, when the said summon was served on him. The petitioner has not examined anybody to prove his contention except his

interested testimony. He has also not filed any Medical Certificate in support of his contention.

The conduct of the petitioner would show that he was not interested in taking part in the proceedings and on the other hand, his intention is to

evade the same one way or other. Though admittedly the E.P. notice was served on him on 14.12.2010, he has chosen to file the application u/s 5

of the Limitation Act only on 21.07.2011. The petitioner has not examined his counsel to prove that he has instructed him only to file the set aside

petition and he, on the other hand, filed his vakalat in the execution petition. When an order for registration of sale deed was made in execution

proceedings, he filed a civil revision petition before this Court in C.R.P. No. 3089/2012 challenging the said order. Surprisingly, the said civil

revision petition also came to be withdrawn by the petitioner for the reasons best known to him. Thus, all these facts and circumstances would

show that there is no bonafide on the part of the petitioner. The court below has rightly exercised its discretion and rejected the application.

The learned counsel for the petitioner relied on Shoba Viswanathan Vs. D.P. Kingsley, wherein the Hon''ble Division Bench of this Court

condoned the delay of 135 days by taking note of the fact that the suit is one for specific performance involving a valuable property. A perusal of

the said decision would show that the Hon''ble Division Bench found the reasons stated in the affidavit as vague and found that the petitioner

therein was in the United States of America and he did not take any decision to file an appeal immediately even though she was made aware that

the copies were made ready.

In this case, the reasons stated by the petitioner were not found by the court below as vague and on the other hand as false statement. Both

vague and false statements are not standing on the same footing. A vague statement not found to be false, may be taken note of and considered for

condoning the delay, whereas a statement which is found to be false, cannot be taken note of or considered to condone the delay. Therefore, the

facts of that case are totally different and distinguishable from the facts of the present case.

The next decision relied on by the learned counsel for the petitioner is reported in Arun Alexander Lakshman, Proprietor Alraj Builders and

V.E. Arun Vs. A.P. Vedavalli, In the said decision, the Hon''ble Division Bench of this Court has observed at paragraph Nos. 17 and 18 as

follows:

It is settled law that Section 5 Application is to be construed liberally so as to do substantial justice to the parties. The provision contemplates

that the Court has to go into the position of the person concerned and find out if the delay can be said to have been resulted from the cause which

the petitioner had adduced and whether the cause stated in the circumstances of the case is sufficient. It is the condition precedent for the exercise

of discretion that the Court must satisfy itself as to whether there was sufficient cause for exercising such discretion and condoning the delay. The

expression ''sufficient cause'' should be considered with pragmatism with a justice oriented approach.

Court has to see whether sufficient cause is shown for the delay. What is or what is not ''sufficient cause'' would depend upon varied and

special circumstances of each case. To decide whether sufficient cause is shown or not, it is very undesirable to act upon precedents as every

Judge has to deal with particular facts of each case. In State of Kerala v. E.K. Kuriyipe and Ors. it was held that whether or not there is sufficient

cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case.

There is no quarrel about the said preposition of law reiterated by the Hon''ble Division Bench. Even in the said decision, the Hon''ble Division

Bench observed that the court has to go into the position of the person concerned and find out if the delay can be said to have been resulted from

the cause which the petitioner had adduced and whether the cause stated in the circumstances of the case is sufficient. Therefore, the facts and

circumstances of each case has to be considered on its own merits. When the court below has found that the reasons stated by the petitioner is

false, then there is no question of exercising any liberal approach while considering the application for condonation of delay.

The next decision relied on by him is reported in State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Others, . Here again, the

Hon''ble Supreme Court has observed that the expression ''sufficient cause'' must receive a liberal construction so as to advance substantial justice.

That is a case where the Apex Court has taken into consideration of the Governmental decision and its functioning. The appellant therein was State

of Karnataka. The Apex court has found that certain amount of latitude is not impermissible since the Governmental decisions are proverbially at

slow pace and encumbered process, as thereby considerable delay of procedural red-tape in the process of their decision making. In fact, in a

recent decision rendered by the Hon''ble Supreme Court reported in Amlendu Kumar Bera and Others Vs. The State of West Bengal, it has been

held that merely because the respondent is the State delay in filing the appeal or revision cannot and shall not be mechanically considered and in the

absence of ""sufficient cause"", delay shall not be condoned. In another decision reported in Office of The Chief Post Master General and Others

Vs. Living Media India Ltd. and Another, the Hon''ble Supreme Court has observed that in the absence of plausible and acceptable explanation,

the delay cannot be condoned mechanically merely because the Government or a wing of the Government is a party before the Court.

Though the learned senior counsel appearing for the respondent had relied on several decisions on the same issue, which I have listed supra, I

would like to refer only few decisions, in order to avoid multiplication of reference of case laws on the same point.

In Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, , the Hon''ble Supreme Court has held at paragraph

No. 11 as follows:

11...In our considered opinion incorrect statement made in the Application seeking condonation of delay itself is sufficient to reject the Application

without any further inquiry as to whether the averments made in the Application reveal sufficient cause to condone the delay. That a party taking a

false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay. (See:

Binod Bihari Singh Vs. Union of India,

(emphasis supplied)

Further at paragraph No. 12, it is observed as follows:

12..It is true that the power to condone the delay rests with the Court in which the Application was filed beyond time and decide whether there is

sufficient cause for condoning the delay and ordinarily the superior Court may not interfere with such discretion even if some error is to be found in

the discretion so exercised by the Court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of

discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court

having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference

Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we

cannot sustain the exercise of discretion in the manner done by the High Court.

In Union Bank of India, Oppanakara Street, Coimbatore-641 001 Vs. K.R. Jewellers, KRS Suresh and KRSA Sundari , the Hon''ble

Division Bench of this Court has observed that mere allegation of negligence levelled against the counsel is not a ground to condone the delay

because party has equal responsibility to follow up the matter. In the absence of any evidence in that regard, the delay cannot be condoned. The

relevant portion at paragraph No. 13 is extracted hereunder:

When there was no satisfactory explanation by the respondents for the inordinate delay of 1287 days, it was very unfair for the Debt Recovery

Appellate Tribunal to condone the delay. Mere allegation of negligence levelled against the counsel cannot be a sufficient reason to condone the

delay. Instead, the respondents have also equal responsibility as that of the counsel to follow up the matter. There is also no evidence to show that

the respondents were following up the matter with the counsel.

Going by these decisions, I find that the order passed by the court below in rejecting the application does not warrant any interference. When

the court has found that the reasons adduced are false and consequently exercised its discretion to reject the application, this Court while

exercising the revisional jurisdiction cannot reverse such factual finding especially in the absence of any contra materials placed before this Court.

Apart from that, it is also seen that in pursuant to the decree passed, the respondent/decree holder filed execution petition wherein an order came

to be passed on 08.08.2012 for registration of sale deed. Though the petitioner challenged the said order before this Court in C.R.P. No. 3089 of

2012, he had withdrawn the said civil revision petition subsequently. Thus, the order dated 28.08.2012 in the execution proceedings became final.

This conduct of the petitioner also shows that there is no bonafide on his part in seeking condonation of the delay to set aside the exparte decree. It

appears that the court below has also executed the sale deed and registered the same on 07.02.2013 on the file of S.R.O., Madhavaram.

K. Ravichandrabaabu , J.

VRI

Thus, by considering all the facts and circumstances of the case as discussed supra, I find no merits to interfere with the order passed by the court

below. Accordingly, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is dismissed.