Kandasamy vs Muthammal

N. Kirubakaran, J.—The plaintiff/decree-holder in O.S. No. 3 of 2008 on the file of District Munsif Court, Dharapuram, is before this Court, challenging the allowing of the application filed by the respondents u/s 5 of the Limitation Act seeking condonation of delay of 221 days in filing the appeal as against the judgment and decree dated 06.08.2012 granted in favour of the petitioner/plaintiff in the said suit and rejection of the counter claim made by them by the Trial Court.

The petitioner filed the suit for permanent injunction and in the said suit, the respondents filed a counter claim. After contest, the suit was decreed on 06.08.2012. After the judgment, according to the respondents, there was a panchayat and in the said panchayat, the petitioner agreed not to interfere with the rights of the respondents and therefore, the appeal could not be filed in time. However, when the petitioner tried to interfere with the respondents'' possession, the respondents were compelled to file an appeal along with a petition to condone the delay of 221 days in filing the appeal. The Appellate Court, after hearing both the parties, came to the conclusion that, an opportunity should be given to the respondents to putforth their case and get a judgment on merits. The Appellate Court also accepted the reasons given by the respondents for condoning the delay and allowed the condone delay petition. Hence, the present revision.

First of all, before the Trial Court, the judgment was obtained on merits. When a contested decree is sought to be challenged, a lenient view has to be taken, especially, in case of condonation of delay and interest of justice requires that an opportunity should be given to the respondents, which was rightly given by the Appellate Court.

Eventhough the learned counsel for the petitioner relied upon the judgment of the Honourable Apex Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, , to contend that each day''s delay has to be explained, only one of the guidelines given in the said judgment has been quoted by the learned counsel for the petitioner. The principles to be adopted in case of condonation of delay have been elaborately given in paragraph Nos. 15 and 16 of the said judgment and they are extracted as hereunder:

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

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an Application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of Prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(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) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of Law of Limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

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) An Application for Condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non- challan manner requires to be curbed, of course, within legal parameters.

In the case on hand, the delay has been satisfactorily explained by the respondents. The factor which weighed in the mind of the Court is that the respondents hotly contested not only the claim of the petitioner, but also made a counter claim. When that has been the conduct of the respondents before the Trial Court, unless there is sufficient reason, the respondents would not have kept quiet without filing an appeal. Therefore, the condone delay petition was rightly ordered by the Appellate Court. There is no necessity to interfere with the same. Hence, the civil revision petition is dismissed. No costs.