Kalimuthu (died) and Others vs Muniakkannan Rep. through his Power Agent Latha

B. Rajendran, J.—This Civil Revision Petition is filed against the order of dismissal, dated 16.09.2013, passed in I.A. No. 330 of 2012 in

O.S. No. 38 of 2005 by the learned District Munsif, Thiruthuraipoondi, which was filed seeking to condone the delay of seven days in filing an

application to set aside the ex parte decree. The learned counsel for the revision petitioners would mainly contend that the delay of seven days has

to be very liberally construed as per the Limitation Act and as per the judicial pronouncement of the Supreme Court reported in Vedabai @

Vaijayanatabai Baburao Pateil Vs. Shantaram Baburao Patil and Others, . He would further submit that the delay of seven days ought to have

been condoned, especially, when the suit was filed by the respondent/plaintiff in O.S. No. 38 of 2005 on the file of the District Munsif Court,

Thiruthuraipoondi, for declaration and for recovery of possession, where the valuable right of the petitioners, who are defendants 2 to 5, are

involved and by dismissing the application seeking to condone the delay, their valuable rights are affected and hence, he would contend that the

order passed by the lower Court is wrong.

This Civil Revision Petition has come up today for admission. I have heard the learned counsel for the revision petitioners. By consent, this

revision is taken up for final disposal at the stage of admission itself. I have also perused the records carefully.

When this revision was taken up for admission, it is found that it is not the first application seeking to set aside the ex parte decree, but, it is the

third application filed by the petitioners/defendants to set aside the ex parte decree. Originally, one Mr. Kalimuthu, who was the husband of first

petitioner herein and father of petitioners 2 to 4 herein, has filed an Interlocutory Application in I.A. No. 33 of 2005, to set aside the ex parte

decree and the same was allowed on 22.09.2005. Again, the said Mr. Kalimuthu, remained ex parte for the second time and therefore, during his

life time, he again filed an application in I.A. No. 298/2008, to set aside the ex parte decree and the same was also allowed on 04.09.2008.

Subsequently, pending the Suit, Mr. Kalimuthu died and therefore, the petitioners herein, who are the Legal Representatives were impleaded as

defendants 2 to 5 in the Suit. Even thereafter, the petitioners/Legal Representatives have remained ex parte and an ex parte decree was passed

and admittedly, the ex parte decree was passed in this case for the third time. Presently, the wife, sons and daughter of deceased Kalimuthu have

come forward with the application to set aside the ex parte decree; that too, the said application was not filed within time and there was a delay of

seven days and therefore, he filed I.A. No. 330 of 2012 seeking to condone the delay of seven days.

In the affidavit filed in support of the application seeking to condone the delay, the third petitioner herein has stated that he was not able to

contact the Counsel in time, as he was suffering from jaundice and he was taking native treatment, for which, there is no evidence. It is a usual

routine reason stated in the application seeking to condone the delay. In my considered opinion, ""sufficient cause"" should be shown for the delay

and even the delay of large number of days could be condoned, provided, there is a sufficient cause. In this case, admittedly, there is no sufficient

cause shown for the delay.

Now, I would refer to the decision relied on by the learned counsel for the petitioners reported in 2001(3) CTC 763, Vedabai @

Vaijayanatabai Baburao Patil, wherein, the Hon''ble Supreme Court has specifically stated that there should be ""sufficient cause"" for condonation

of delay. In the said decision, the Hon''ble Supreme Court has further held that the Court should adopt pragmatic approach while dealing with

applications for condoning delay. But, in this case, there is no sufficient cause given for the delay, especially, when the third petitioner was suffering

from jaundice, he could not have proceeded to conduct the case, but, the other petitioners should have taken diligent steps, but, in each stage of

the proceedings the petitioners were negligent in prosecuting the case and they have continuously allowed the Suit to be decreed ex parte and for

two times, the lower Court has set aside the ex parte decree and thereafter also, they were not diligent enough in prosecuting the case and again,

they allowed the Suit to be decreed ex parte and now, for the third time, the petitioners have filed this application seeking to condone the delay. In

my considered opinion, the said decision relied on by the learned counsel for the petitioners only helps the case of the respondent as there is no

sufficient cause"" for the delay.

It is also relevant to refer to the decision of the Hon''ble Supreme Court reported in Esha Bhattacharjee Vs. Managing Committee of

Raghunathpur Nafar Academy and Others, . In the said decision, the Hon''ble Supreme Court has elucidated the governing principles in respect of

the application for condonation of delay. In paragraph No. 15, the Hon''ble Supreme Court has held as under:-

From the aforesaid authorities the principles that can broadly be culled out are:

(i)...

(ii)...

(iii)...

(iv)...

(v)...

(vi)...

(vii)...

(viii)...

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so

as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle

cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other

side unnecessarily to face such a litigation.

(xi)...

(xii)...

The Supreme Court added some more guidelines taking note of the present day scenario and has held in paragraph No. 16 as follows:-

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

(a) An Application for Condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the

Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(b)...

(c)...

(d)...

From a reading of the decision cited supra, it is crystal clear that the application seeking condonation of delay should be drafted with careful

concern. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. In

this case, though, the third petitioner herein claims that he was suffering from jaundice, the other petitioners, who are admittedly the family

members, ought to have been vigilant and should have proceeded with the case, but, they have not done so, and they have been negligent in

prosecuting the case. No explanation is given in the affidavit as to why they have not proceeded with the matter which is fatal.

This is the fittest case, where the lower Court has found that in each stage of the proceedings, the petitioners were not diligent in prosecuting the

case and they have continuously allowed the Suit to be decreed ex parte and for two times, the lower Court has set aside the ex parte decree and

thereafter also, they were not diligent enough in prosecuting the case and again, they allowed the Suit to be decreed ex parte and now, for the third

time, the petitioners have filed this application seeking to condone the delay. Therefore, in my considered opinion, the lower Court has correctly

held that there is no sufficient cause for condoning the delay. I do not find any reason to interfere with the reasoned order passed by the lower

Court. The order passed by the lower Court, dated 16.09.2013 is confirmed. For the foregoing reasons, this Civil Revision Petition is devoid of

merits and the same is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.