Lakshminarayanan vs Vaigundanamamani and another

First defendant in O.S.No.59 of 1992 on the file of Additional Subordinate Judge Tenkasi dismissing his I.A.No.174 of 1999 filed for

condoning the delay of 581 days in representing the petition to set aside the ex parte decree has filed the present revision.

According to the petitioner the respondents herein filed a suit in O.S.No.59 of 1992 on the file of the Additional Sub Judge, Tenkasi against the

petitioner for partition in the suit properties claiming 7/12rd shares in the first item and 2/3rd share in items 2 to 6. The petitioner has filed a written

statement denying the claim on the ground that his mother, one brother and four sisters have released their respective shares in his favour and

therefore, they are entitled to only 2/9th share. On 12.8.97 the petitioner was set ex parte and a preliminary decree was passed. As he was not

well, he could not attend Court on 12.8.97; accordingly he filed a petition to set aside the decree under Order 9, Rule 13, C.P.C. within the time

limit, subsequently during December, 1997, his advocate Mr. Kanagaraj Muthupandian died. Therefore the returned petition could not be

represented in time. The present counsel Mr.Ramachandran who was appearing along with Mr. Kanagaraj Muthupandian assured him that he will

find out the returned papers. He also shifted his office for 2 times and the papers were misplaced. Hence there is a delay of 581 days in

representing the set aside petition, its counsel has sworn the affidavit for condoning the delay in representation. The said petition was resisted by

the respondents by filing counter affidavit.

The Court below by the impugned order after holding that the petitioner herein is deliberately protracting the matter, dismissed the said petition.

Heard the learned counsel for the petitioner as well as respondents.

It is unnecessary to refer the claim of the parties in the suit, however, it is the definite case of the petitioner that in view of release by his mother,

one brother and 4 sisters in his favour, the plaintiffs are entitled only 2/9 the share. The fact remains that though he was set ex parte on 12.8.97 and

a preliminary decree was passed, the petitioner filed a petition to set aside the ex parte decree under Order 9, Rule 13, C.P.C. within the time

limit. The said petition was returned by the sub court for rectification of certain defects. Now we are concerned with the delay of 581 days in

representing the set aside petition. Before the Court below, the counsel, namely, S. Ramachandran has sworn an affidavit stating that the petition

filed to set aside the ex parte decree was returned by the sub court on 24.12.97 and the said petition ought to have been represented on or before

7.1.98. It is stated that in view of shifting their office. On two occasions, they misplaced their case bundle along with the other bundles. After

enquiry by the first defendant/petitioner herein, they searched the returned papers and represented the same after 581 days. Even though the

respondents have filed a detailed counter affidavit, it must be remembered that the petitioner has Filed a petition under Order 9, Rule 13, C.P.C. to

set aside the ex parte preliminary decree dated 12.3.97 within the prescribed time. Since there is certain defects in the said petition, the sub Court

returned the same with a direction to represent the said petition before 7.1.98. I have already stated that the counsel, namely, S.Ramachandran

aged about 53 years has filed an affidavit explaining the reason for the delay in representing the said petition. It is specifically stated that they have

shifted their office on two occasions and in doing so, the returned paper mingled with the other bundles and only after enquiry by the first

defendant, they were able to secure the said petition and represented the same immediately. I do not find any reason to reject the statement made

by a leading member of the Bar, Admittedly, the petitioner-first defendant was no where responsible for the delay. I have already stated that he has

filed an appropriate petition under Order 9 Rule 13, CPC to set aside the ex parte preliminary decree in time. Here, the mistake is only on the part

of the counsel who himself has filed an affidavit explaining the reason for the delay in representation. The said petition has been filed u/s 148 read

with Section 151, CPC. As per these sections, even after the prescribed period or time limit, it is open to the concerned Court to extend the time

and enlarge such period if sufficient cause is shown. Even though Mr.A.E.Chelliah, learned senior counsel has cited several decisions in support of

his contention to show that there is no bona fide in the claim of the petitioner and the court below is right in dismissing the petition, in view of the

fact that the petitioner was no where responsible for the delay in filing under Order 9, Rule 13, CPC to set aside the ex parte decree within the

time prescribed and in view of the reasons furnished in the affidavit filed by a responsible member of the Bar and in the light of the provisions,

namely, Sections 148 and 151, C.P.C., I am of the view that the petitioner should not be penalised for no fault of him and he may be given an

opportunity to contest the suit on merits.

No doubt, learned senior counsel for the respondents would point out that after passing a preliminary decree, the respondents-decree-holders

filed application for appointment of a Commissioner to pass final decree and in such circumstance, any order permitting the petitioner to pursue his

petition filed under Order 8, Rule 13 would cause inconvenience and loss to them. I am unable to accept the said contention. Even if it is so, as

observed by this Court and the Apex Court in many decisions, the affected party can be compensated by awarding reasonable cost. In the case of

N. Balakrishnan Vs. M. Krishnamurthy, , Their Lordships of the Supreme Court have held as follows:-

It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act docs 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 thereof is satisfactory. Once the court accepts the explanation as sufficients, it is the result of

positive exercise of discretion and normally the superior court should not disturb such finding much less; in revisional jurisdiction, unless the

exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone

the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to

come to its own finding even untrammeled by the conclusion of the lower court.

10......

Rules of limitation are not 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. Time is precious and wasted time would never revisit. During the efflux

of time, newer causes would sprout up necessiating newer persons to seek legal remedy by approaching the courts, so a life span must be fixed for

each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus

founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (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.

A court knows that refusal to condone delay would result in foreclosing a suit or 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 vice Shakuntala Devi Jain Vs. Kuntal Kumari and Others, ; and The State of West Bengal

Vs. The Administrator, Howrah Municipality and Others, .

It must be remembered that in every case of delay, mere 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. While condoning the delay, the court should

not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It

would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the

opposite party for his loss.

In the light of the law laid down by the Apex Court in the above referred case and in view of the explanation offered by the counsel by way of an

affidavit, I am inclined to accept the explanation of the counsel who has shown sufficient cause for the delay. It is worth-while to mention that her

there is no delay in filing the petition to set aside the ex parte decree, the delay has occasioned only in representing the said petition and sufficient

cause has been shown for the same. In similar circumstances a Division Bench of this Court in Y. Cusbar v. K.Subbarayan, 1994 M.L.J. 1 has

held thus:-

... If there is any undue delay in representing the papers the delay can be compensated by awarding costs. Therefore, the court is of the view that

when the appeal has been filed in time, but there is inordinate delay in representing the papers, returned for rectification of the defects, by the

appellate court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs.

After holding so, Their Lordships condoned the delay in representing the papers and awarded costs of Rs.1,000 to the other side.

7.As pointed out by the Division Bench in the above referred case, here also I am satisfied that the petitioner has shown sufficient cause. Inasmuch

as after getting a preliminary decree the respondents-decree holders have filed an application for appointment of Commissioner for division of the

properties, it is but proper the expenses spent by them for such recourse have to be compensated.

In the light of what is stated above, the impugned order of the Court below is set aside and the petition I.A.174 of 1999 filed by them for

condonation of delay of 581 days in representing the petition filed under Order 9, Rule 13, C.P.C, is allowed. The delay in representation is

condoned with costs of Rs.1000 payable by the petitioner to the respondents within a period of two weeks from the date of receipt of a copy of

this Order. Civil Revision Petition is allowed. No costs. Consequently, both the C.M.Ps. are closed.