K.V. Lakshmipathy (Deceased) vs J. Senthamizh Selvi

T. Mathivanan, J.—This Memorandum of Civil Revision has been directed against the fair and decretal Order, dated 22.11.2002 and made in I.A. No.15576 of 2011 in O.S. No.6871 of 1990 on the file of the learned VII Assistant Judge, City Civil Court, Chennai.

The facts which are absolutely necessary for the disposal of this Civil Revision are as under:

a. The First Respondent Mrs. J. Senthamil Selvi seems to have filed a Suit in O.S. No.6871 of 1990 as against the Revision Petitioners 1 to 7 being the Defendants 1 to 7 as well as the Second Respondent being the 8th Defendant seeking the following reliefs:

aa. To declare that the Plaintiff has got the right of having access through the Suit road marked in red in the sketch to her site from inner ring road through the three roads situated on the northern side of 30 feet road;

b. For permanent injunction restraining the Defendants from putting up any construction and committing trespass into the 30 feet road, the suit property;

c. For mandatory injunction directing the Defendants 1 to 7 to remove the illegal construction put up in the Suit property marked in blue in the sketch;

and for costs.

The above Suit stood posted to 16.12.1991 for filing the Written Statement of the Revision Petitioners/Defendants 1 to 7. But the Revision Petitioners/Defendants 1 to 7 had not filed their Written Statement on the above said date and therefore, the Suit was adjourned to 3.1.1992. Even on that date also, the Revision Petitioners/Defendants 1 to 7 had not filed their Written Statement and therefore, they were called absent and set ex parte. Then an ex parte decree was passed on 13.1.1992.

In order to set aside the ex parte decree, dated 13.1.1992, the Revision Petitioners/Defendants 1 to 7 had filed an Application in I.A. No.1981 of 1992 under Order 9, Rule 13 of C.P.C. Thereafter, that Application was dismissed for non prosecution on 30.10.1996.

Then another Application in I.A. No.15576 of 2011 under Section 5 of the Limitation Act was filed by the Revision Petitioners/Defendants 1 to 7 for condoning the delay of 5231 days in filing an Application to restore the Petition in I.A. No.1981 of 1992. That Application was contested by the First Respondent/Plaintiff by filing his Counter Statement and after hearing both sides and also on considering the related facts and circumstances of the case, the learned VII Assistant Judge had proceeded to dismiss the said Application in I.A. No.15576 of 2011 on 22.11.2012 on the ground that the delay was inordinate and that the contention of the Revision Petitioners/ Defendants 1 to 7 that they had no knowledge about the passing of the ex parte decree for all these days could not be accepted and the learned Judge has also found that there were no merits in the Petition in I.A. No.15576 of 2011 and therefore, it was dismissed.

Being aggrieved by the impugned Order, dated 22.11.2012 and made in I.A. No.15576 of 2011, the present Revision has been preferred before this Court.

When the Petition was taken up for hearing Mr. M. Balasubramanian, learned Counsel for the Petitioners has advocated that the Revision Petitioners/Defendants 1 to 7 had engaged their Counsel to make his presence on their behalf to defend the Suit. He had also entered appearance. However, the Petitioners were not properly instructed by their then Counsel to file their Written Statement and on account of this reason, the learned Trial Judge had proceeded to pass an ex parte Decree against the Petitioners on 13.1.1992 and since, it was a non-speaking Order, it had got to be set aside.

He has also submitted that on 1.2.1992, the Petitioners/Defendants 1 to 7 had filed the Petition under Order 9, Rule 13 of C.P.C., to set aside the ex parte decree, dated 13.1.1992, but it was returned on several occasions by the office of the Trial Court and finally, it was numbered as I.A. No.1981 of 1992.

He has also argued that the said Petition was posted for awaiting records and for enquiry. But subsequently, the earlier Counsel did not inform the Revision Petitioners about the further developments and therefore, the said Petition was dismissed for non-prosecution on 30.10.1996. Thereafter, the Application in I.A. No.15576 of 2011 was filed under Order 9, Rule 13 of C.P.C. to set aside the order of dismissal, dated 30.10.1996.

In this connection, Mr. Balasubramanian, has argued that because of the mistake committed by the then Counsel, the valuable right of the Petitioners should not be allowed to be affected.

In order to substantiate his contention, he has placed reliance upon the following three decisions:

a. The Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987 (2) SWCC 107.

b. N. Balakrishnan v. M. Krishnamurthy, 1998 (2) CTC 533 (SC) : 1998 (7) SCC 123.

c. C. Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, 2002 (1) CTC 769 (SC) : AIR 2002 SC 1201.

Based on the provisions of Section 5 of the Limitation Act, 1963, the Division Bench of the Hon''ble Apex Court, in The Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987 (2) SWCC 107, in Paragraph 3, has observed that:

"3. The legislature has conferred the power to condone delay by enacting Section 5 (Any Appeal or any Application, other than an Application under any of the provisions of Order 21 of the C.P.C., 1908, may be admitted after the prescribed period if the Appellant or the Applicant satisfies the Court that he had sufficient cause for not preferring the Appeal or making the Application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice - that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

Ordinarily a litigant does not stand.

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 grasped 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."

In N. Balakrishnan''s case, cited second supra, while speaking on behalf of the Division Bench of the Hon''ble Apex Court, His Lordship Justice K.T. Thomas has observed as under:

"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public polity. It is enshrined in the maxim interest reipublicae up sit finis latium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation there is satisfactory. In every cased of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. 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. The words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice."

In C. Ram Nath Sao''s case, cited third supra, while penning down the Judgement on behalf of the Division Bench of the Hon''ble Apex Court, His Lordship, Mr. Justice B.N. Agrawal, has observed as under:

"The expression ''sufficient cause'' within the meaning of Section 5 of the Act or Order 22, Rue 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party. In a particular case whether explanation furnished would constitute ''sufficient cause'' or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Court should not proceed with the tendency of finding fault with the cause shown and reject the Petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps with the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, the Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

On the other hand, Mr. B.L. Jayakandan, has argued that the Suit in O.S. No.6871 of 1990 was filed for declaration and permanent injunction as well as for the relief of mandatory injunction as against the Revision Petitioners/Defendants 1 to 7 and for the past 23 years, the above Suit has been pending for extraneous reasons. The Revision Petitioners/Defendants 1 to 7 had deliberately and with an oblique motive to protract the proceedings had not filed their Written Statement and therefore, they were called absent and set ex parte on 3.1.1992. Thereafter, the Suit was posted for the examination of the First Respondent herein/Plaintiff as PW1. On that day, he was examined as PW1 and necessary documents were marked on his side and based on the evidence adduced, an ex parte Decree was passed on 13.1.1992.

He has also argued that though the Revision Petitioners/Defendants 1 to 7 had claimed that they had filed an Application in I.A. No.1981 of 1992 under Order 9, Rule 13 of C.P.C., to set aside the ex parte Decree on 13.2.1992, even that Application was not pursued by them and therefore, it was dismissed for non-prosecution on 30.10.1996. He has also made a stress on the point that the said Application in I.A. No.1981 of 1992 was filed on 13.2.1992. But that Application was kept pending successfully for about four years without any progress and ultimately, the said Application was dismissed for non-prosecution on 30.10.1996. Thereafter, the Revision Petitioners/Defendants 1 to 7 had not taken any steps to restore the said Application and therefore, they had kept quiet for about 15 years and then only they had come forward with the Application in I.A. No.15576 of 2011 to condone the delay of 5231 days.

He has submitted that since there was inordinate delay and the Revision Petitioners/Defendants 1 to 7 had miserably failed to show sufficient cause for condoning the delay and equally, there was also no explanation as required under Section 5 of the Limitation Act, the learned Trial Judge had rightly dismissed that Application and therefore, the order, dated 22.11.2012 did not require the interference of this Court and he has also submitted that the provisions of Section 5 of the Limitation Act have been enacted to enable the Courts to do substantial justice to parties by disposing of the matters on merits and that the Court cannot exercise its discretionary power in applying the Doctrine of Liberal Approach, when the sufficient cause to condone the delay is not shown.

Therefore, the principles laid down in The Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987 (2) SWCC 107, do not mean that an inordinate and abnormal delay of 15 years could be condoned applying the doctrine of liberal approach.

He has also argued that the rights and interests of either sides to be balanced and also to be taken into account while applying the liberal approach. He has further maintained that the Suit in O.S. No.6871 of 1990 had been pending for the past 23 years and if the Application in I.A. No.15576 of 2011 was allowed and the delay of 15 years was condoned, then the interest of the First Respondent/Plaintiff would gravely be affected and therefore, he has urged to dismiss the Revision Petition filed by the Revision Petitioners.

In order to support his contention, he has placed reliance upon the following decisions:

a. V.T. Sundaramani v. V.G. Kuppuswamy and anr., 2010 (2) CLT. 182.

b. M. Paul Babuta v. Union of India and another, 1999 AIHC 495.

c. Gloria Chemicals v. RK. Cables and others, AIR 1988 Del. 213.

In M. Paul Babuta''s case, cited second supra, the Applicant had entered into a contract with the Respondents for the construction of two tier rack system for Publication Godown, Department of Publications, Government of India. Consequent upon certain disputes having arisen between the parties matter was referred to the sole Arbitrator for adjudication. On 27.12.1989, the Arbitrator published his Award. Thereafter, the Respondents/Petitioners filed an Application for a direction to the Arbitrator to file his Award. In the meanwhile, the Arbitrator himself filed the Award in the Court. There was no appearance on behalf of the Applicant and Court''s Notice was ordered to be issued to the Standing Counsel for the Applicant. Despite service of Notice, the Standing Counsel did not appear on the date of hearing. Under these circumstances, on 27.9.1996 an ex parte Decree in terms of the Award was passed. The Applicant''s objections were dismissed as none appeared on behalf of the Applicant and an ex parte Decree in terms of the Award was passed.

On 12.12.1996 the Applicant filed the present Application under Order 9, Rule 13, C.P.C. for setting aside the ex parte Decree on the ground that the Applicant''s Counsel Ms. Savita Sharma, did not appear before the Court on 27.9.1996 as she had ceased to be Applicant''s Counsel and she also did not inform the Applicant about the said date.

In this connection, the Delhi High Court has stated that needless to say that the present Application under Order 9, Rule 13, C.P.C. is governed by Article 123 of the Limitation Act. Under the said Article, time runs from the date of the Decree, or where the summons was not duly served, from the date when the Applicant has knowledge of the decree.

It was contended that the Applicant got the knowledge of the ex parte Decree on 27.11.1996 from the Respondents Letter, dated 26.11.1996 and as such the present Application is within the time.

But having considered all the relevant facts and circumstances and also after having referred to a decision in Bhagwan Dass Bros. v. Ghulam Ahmad Dar, AIR 1992 Del 22, the Delhi High Court has observed that the present Application has been filed after 30 days from the date of the Decree. The Applicant has not filed any Application under Section 5 of the Limitation Act seeking condonation of delay in filing the Application under Order 9, Rule 13, C.P.C. Thus the conclusion is inescapable that the present Application is barred by time.

In V.T. Sundaramani v. V.G. Kuppuswamy and another, 2010 (2) C.L.T. 182, cited first supra, the Division Bench of this Court held that the fact of participation of Appellant in other proceedings of the Suit and that he was examined as PW1 therein and that he had engaged a Counsel showed that the cause was not sufficient and therefore, the Application filed by the Appellant under Section 5 of the Limitation Act to condone the delay of 522 days in setting aside the ex parte Order passed for non-filing of the Written Statement, was dismissed.

In Gloria Chemicals v. RK. Cables and others, AIR 1988 Del. 213, the Delhi High Court has held that where in an Application for setting aside the ex parte Decree, the Applicants placed entire blame on their Advocate, for ex parte proceedings, Judgment and Decree and also for dismissal in default of the earlier Application to set aside the ex parte Decree, it was held that although mistake of Counsel in certain circumstances could be taken into account yet the negligence of advocate itself was not sufficient to allow their Application. The words "sufficient cause" for non-appearance should receive liberal construction, so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.

On coming to the instant case on hand, it is obvious to note here that the ex parte Decree in the Suit in O.S. No.6871 of 1990 was passed on 13.1.1992 as the Defendants 1 to 7 & 8 remained absent and set ex parte. Thereafter, it appears that the Application in I.A. No.1981 of 1992 has been filed to set aside the ex parte Decree, dated 13.1.1992. That Application was dismissed for non-prosecution on 30.10.1996. Thereafter, the Application in I.A. No.15576 of 2011 to restore the said Application in I.A. No.1981 of 1992 was filed with a delay of 5231 days.

The learned Counsel for the Petitioners has submitted that the earlier Application was returned on several occasions and that Application was posted finally for enquiry on 11.8.1994 by Order, dated 14.6.1994. It was not duly informed to the Revision Petitioners by their former Counsel and also about the further developments.

On a perusal of the Affidavit filed in support of the Petition, this Court is able to understand that according to the Petitioners, by the reason of the continued legal battle before the High Court and Debt Recovery Tribunal, they could not take further steps in this matter and hence, the deponent, who has filed the Affidavit on behalf of the other Petitioners, had understood that the said Petition to set aside the ex parte Decree came to be dismissed for default. However, only after the filing of the Execution Petition in E.P. No.7 of 2011 by the Respondent, they came to know about the dismissal of the Application to set aside the ex parte Decree and he has also stated that the above Execution Petition was filed for the arrest of all the Petitioners including the women.

On a careful perusal, this Court is not able to discern the reasons assigned by the Petitioners. Section 5 of the Limitation Act envisages that any Appeal or any Application, other than an Application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the Appellant or the Applicant satisfies the Court that he had sufficient cause for not preferring the Appeal or making the Application within such period.

This Court has also concluded that there is no merit in the Application filed by the Revision Petitioners to condone the delay of 5231 days in filing the Petition for restoring the Petition in I.A. No.1981 of 1992, which was dismissed for default on 30.10.1996.

Apart from this, the Suit appears to have been filed in the year 1990 and as rightly argued by the learned Counsel for the First Respondent/Plaintiff it has been successfully protracted for the period of 23 years without any progress.

On a perusal of the records, it is revealed that the Court below had given reasonable opportunity to file the Written Statement. But the Petitioners had never evinced any interest to utilise the opportunity given by the Court below to file their respective Written Statements. Only under that circumstances, the Suit was decreed ex parte on 13.1.1992. The reason that their Counsel did not inform about the further developments is not sufficient to condone the delay of 5231 days.

It is also revealed from the Counter Statement filed by the First Respondent that the Revision Petitioners knew the status of the case and moreover they had filed another Suit against the First Respondent/Plaintiff for permanent injunction on the file of the learned II Assistant Judge, City Civil Court, Chennai in O.S. No.4003 of 1993, which was dismissed on 19.3.2001 on merits. When the Petitioners were able to file the Suit in O.S. No.4003 of 1993 as against the First Respondent/Plaintiff, seeking the relief of permanent injunction in respect of the very same property and when they were able to pursue the said Suit, which was ultimately dismissed on merits, it is surprised to note as to how the Revision Petitioners were very reluctant and negligent on their part in filing an Application to set aside the Order of Dismissal, dated 30.10.1996 and made in I.A. No.1981 of 1992 and kept quiet for about 5231 days. They have not come forward with any adequate and sufficient reasons to condone such inordinate delay.

In these circumstances, this Court fmds it appropriate to quote the decision in D. Gopinathan Pillai v. State of Kerala and another, C.A. No.220 of 2007, decided by the Division Bench of the Hon''ble Supreme Court of India on 15.1.2007. The Principal Subordinate Judge, Thiruvananthapuram, had an occasion to consider the question as to whether the delay of 3320 days in filing the Petition to set aside Award can be condoned.

In these circumstances, while penning down the Judgment by Dr. AR. Lakshmanan, J., on behalf of the Division Bench has observed that when a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay, only on the sympathetic ground.

The learned Single Judge of this Court, after having referred to catena of decisions, has also observed in A. Muthusamy v. Muniammal and others, 2006 (1) CTC 187, that on a conspectus reading of the above principles set out in the various Judgments, it is well settled that a liberal approach should be extended while considering the Application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hoodwink by the part concerned who, has come forward with an implication for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words, when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably considered.

On coming to the instant case on hand, this Court finds that the delay of 5231 days has been occasioned due to the deliberate conduct of the Revision Petitioners and the delay has not been sufficiently explained and in the absence of sufficient cause, the unexplained, inordinate and abnormal delay of 5231 days cannot be condoned.

Having regard to the related facts and circumstances of the case and on considering the submissions made on behalf of both sides, this Court is of considered view that the grounds of the Memorandum of Civil Revision do not have any merit to allow the Petition in I.A. No.15576 of 2011 in. I.A. No.1981 of 1992 in O.S. No.6871 of 1990.

Keeping in view of the above facts, the Petition is dismissed with costs. Connected M.P. is also dismissed.