Karunakaran vs Santha

K. Gnanaprakasam, J.—The Revision petitioner is the first defendant in O.S.No.76 of 1999 on the file of Sub Court, Cheyyar who

challenges the order dated 20.9.2001 passed in I.A.No.235 of 2001 by the Sub Court, Cheyyar.

In the suit filed by the respondent/plaintiff, the petitioner/first defendant was set export on 19.9.2000 and the first defendant came to know of

the same only on 20.12.2000 and he has filed an application to set aside the ex parte decree dated 19.9.2000. As there was a delay of 93 days in

filing the petition under order 9 Rule 13 of Civil Procedure to set aside the ex parte decree, the defendant also filed an application to condone the

delay u/s 5 of the Limitation Act in I.A.No.49 of 2001. The said application was posted on 8.8.2001 and the defendant neither represented in

person nor through his advocate. Therefore, the petition filed by the defendant was dismissed on 8.8.2001.The first defendant filed another

application in I.A.NO.235 of 2001 to restore the order of dismissal dated 8.8.2001 and to restore the application inI.A.49 of 2001 and the same

came to be dismissed by order dated 20.9.2001 and the said order is being impugned in this civil Revision Petiton.

Learned advocate for the petitioner/first defendant has submitted that the petitioner was affected by Jaundice and he could not move about and

his advocate also misplaced the bundle on 8.8.2001 and only in those circumstances, neither the defendant nor his advocate appeared before the

Court, which resulted in the dismissal of I.A.No.49 of 2001. In fact, the very same reasons were set forth in the affidavit filed by the petitioner in

support of the petition filed to set aside the order of dismissal dated 8.8.2001.

Learned advocate for the respondent/plaintiff would submit that there was no truth in the averments stated in the affidavit filed by the defendant

and only with a view to drag on the proceedings, the defendant remained ex parte and then filed an application to set aside the order of dismissal.

The very same reasons were set out in the counter filed by the defendant before the trial Court also.

The Trial Court after taking into consideration the averments made in the affidavit and also in the counter filed by the plaintiff, came to the

conclusion that the reasons set out in the affidavit by the defendant are not sufficient for his absence and dismissed the petition. Aggrieved by the

same, the first defendant has filed the above Civil Revision Petition.

When the matter was taken up for enquiry, on a question by this Court whether the petitioner/defendant has filed his written statement, it was

stated ''no'' and there upon this Court directed the petitioner/defendant to file a written statement to find out whether the defendant has got any

statable defence. On such a direction, the defendant also filed a written statement and a copy of the same has been filed in the additional typed set

of papers by the petitoner/defendant.

The respondent/plaintiff filed the suit for specific performance of contract of sale agreement executed by the defendant in favour of the plaintiff.

The plaintiff has stated that several payments were made pursuant to the agreement but the defendant in the written statement would deny the

payments said to have been paid by the plaintiff and also disputes the time granted in the agreement. I am not, for a moment to give any opinion or

finding about the correctness of the payments said to have been made by the plaintiff or the denial made by the defendants. It is not for this Court

to consider all those aspects in this Civil Revision Petition. What I could see from the written statement is that the defendant has got a statable case

which he has to establish before the trial Court. But, however, the defendant remained ex parte and the application filed by him to set aside the ex

parte order of dismissal along with an application to condone the delay was dismissed and an application filed by the defendant to restore the said

application was also dismissed. Only in the said circumstances, We have to consider as to whether the application filed by the petitioner/defendant

has got to be allowed?

Learned advocate for the petitioner has submitted that the defendant has got valuable defence in the suit. If he is not permitted to contest the

suit, his right will be jeopardised and the same will be at stake. On the contrary, learned advocate for the respondent/plaintiff would contend that

the defendant has wantonly evaded from prosecuting the petition. The reasons set forth in the affidavit to set aside the order of dismissal are also

not sufficient and convincing.

I have carefully considered the rival submissions of both the learned advocate for the petitioner as well as the respondent.

Learned advocate for the petitioner/defendant has submitted that the Court may adopt a liberal approach to the petitions of this nature and the

defendant may be given an opportunity to set forth his valuable defence. Learned advocate for the petitioenr relied upon the decision in the case of

COLLECTOR, LAND ACQUISITON, ANANTNAG AND ANOTEHR (Appellants) VS MST. KATIJI AND OTHERS (Respondents)

reported in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, wherein the Apex Court has observed as follows:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As

against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

""Every day''s delay must be explained"" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s

delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the

other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does

not stand to benefit by resorting to delay. In fact, he runs a serious risk.

It must be grapsed that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of

removing injustice and is expected to do so.

He also relied upon the judgment rendered in the case of C.K.LOKESH VS. P.E.PANDURANGA NAIDU reported in 1997-2-Law

Weekly, 645. That is the case where there is a delay of 2015 days in filing an application to set aside the ex parte decree and an application u/s 5

of the Limitation Act was filed to condone the delay on the ground that the said application was filed within 30 days from the ''date of knowledge''.

It was also proved that there was no sufficient service and in this context, the Supreme Court held that the delay of 2015 days has got to be

condoned while accepting the reasons of the petitioner.

Learned counsel further relied upon the judgment rendered in the case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, . In that case, the

failure on the part of the petitioner to appear before the Court either in person or through his advocate, came up for consideration wherein the

Apex Court observed as hereunder:

The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. Both the trial Court as

also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of the appellant despite

the fact that he had put a reasonable defence and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory

period. Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex parte decree set aside on

such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and ''technical approach'' adopted by the

Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the

appellant/defendant is allowed opportunity to prove his case within a reasonable time.

On the contrary, the learned advocate for the respondent/plaintiff has submitted that the reasons stated in the petition are not sufficient and

relied upon the decision rendered in the case of P.K. Ramachandran Vs. State of Kerala and Another, to sustain his argument. In that case, the

petitioner has not given proper and valid reasons to condone the delay and the Court also did not record any satisfaction of reasonable or

satisfactory explanation for inordinate delay and on those grounds, the Apex Court came to the conclusion that"" We are not satisfied that in the

facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for

condonation of the inordinate delay of 565 days and dismissed the appeal.

In the case of N. Balakrishnan Vs. M. Krishnamurthy, the Supreme Court had an occasion to consider about the sufficient cause shown by the

party to condone the delay. In para 13, it had observed as follows:

A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in

approaching the Court is always deliberate. This Court has held that the words ""sufficient cause"" u/s 5 of the Limitation Act should receive a liberal

construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and Others, .

The only restriction made by the Supreme Court is the explanation should not smack of mala fides or it is put forth as part of dilatory strategy, the

Court must show the utmost consideration to the suitor.

On an analysis of the submissions made by the parties and in consideration of decisions cited by both the advocate for petitioner as well as the

respondent, it is clear that the uniform view taken by the Apex Court is, that the Court should not adopt unrealistic and technical approach while

dealing with this kind of application as all parties would be put to unnecessary hardship and inconvenience. The ends of justice would be met only if

the litigant is given an opportunity to prove his case within reasonable time. The Court should not refuse to condone the delay as it would result in

foreclosing a suitor from putting forth his case. (i.e) Nipping the case of the parties in the bud itself and the same is not approved and appreciated

by the Apex Court. This Court should not also more hyper technical in the petitions of this nature. Having this in mind, I feel that as the

petitioner/defendant has raised certain statable defence in the written statement, which is subject to proof he must be given an opportunity to

contest the matter on merits. I also feel that the petitioner/defendant can not be short circuited with the help of the ex parte order of dismissal of his

application. At the same time, the petitioner /defendant also should be made to feel that he should be diligent in prosecuting the case.

In the said view of the matter, I am inclined to allow the Civil Revision Petition on payment of cost of Rs.5,000/- by the petitioner on or before

10.6.2002 failing which the order passed today shall stand cancelled automatically. That out of Rs.5,000/- a sum of Rs.2,500/- shall be paid to the

respondent/plaintiff and the balance of Rs.2,500/- shall be paid by the petitioner/defendant to the Free Legal Aid Authority at Cheyyar.

In the result, the Civil Revision Petition is allowed. Consequently, C.M.P.No.16300 of 2001 is closed.