Mr. Sekar Reddy and Others vs Jayarama Reddy and Mani

M. Venugopal, J.—This civil revision petition has been projected by the revision petitioners/petitioners/defendants as against the order dated

05.12.2006 in I.A. No. 1229 of 2004 in O.S. No. 58 of 1987 passed by the learned District Munsif, Ponneri in rejecting the application filed for

condonation of delay of 357 days as per Section 5 of the Limitation Act.

The trial Court, while passing orders in I.A. No. 1229 of 2004, has inter alia opined that the contentions of the petitioners have been disproved

by the evidence of R.W.1 and even after the evidence of R.W.1, the petitioners have not made any endeavour to adduce any oral or documentary

evidence on their side and even by the averments in the petition only the fifth petitioner has gone to Nagpur and it is not the case of the fifth

petitioner that the other petitioners have been disabled on any account from continuing to defend the suit in the absence of the fifth petitioner and in

fact, there is also no evidence as to why the other petitioners have not appeared to contest the suit and has resultantly dismissed the petition with

costs.

According to the learned Counsel for the revision petitioners, the order of the trial Court in dismissing the application for condonation of delay of

357 days is an erroneous one and unsustainable in law and as a matter of fact, the trial Court has not exercised its discretion in condoning the delay

in filing an application to set aside the exparte decree and in fact, the trial Court should have seen that the rules of limitation are not meant to

destroy the rights of the parties, but they are meant to protect the rights of the parties and looking at from any angle, the order of the trial Court

needs to be set aside as it has resulted in miscarriage of justice and therefore, prays for allowing the civil revision petition in the interest of justice.

This Court has heard the contentions advanced on both sides and noticed the same.

Before the trial Court in I.A. No. 1229 of 2004 an affidavit has been filed by the fifth revision petitioner wherein it is inter alia mentioned that the

case has been posted in the list on 05.8.2003 and that he has been out of station for the past one year and he has been in the Nagpur to do the

cloth business and therefore, in his absence he has called absent and set exparte and further a decree has also been passed against the petitioners

and later on 10.4.2004 through an Advocate a legal notice has been issued by the respondents and only after receipt of the same he has come to

know that an exparte decree has been passed on 05.8.2003 and soon after he returned to his native place and when he has contacted his Counsel,

he has come to know of the facts of the case and therefore, he has filed an application to set aside the exparte decree and also an application to

condone the delay in filing an application.

In the counter affidavit filed by the second respondent, it is specifically mentioned that the averments in applications affidavit at para 3 are all

contrary to facts and that the fifth petitioner has been in the village and he is aware of the true details of the case and he is also known about the

exparte decree and it is incorrect to state that the fifth petitioner has gone to Nagpur and has stayed their for one year in connection with his cloth

business and even the other petitioners have been only in the suit village and when the petitioners have remained out side the presence of the Court,

they have not chosen to appear before the Court and that only after a legal notice sent on 10.04.2004 after receipt of the same by the some of the

petitioners, others have not received and returned back the same to the sender and this application has been filed after a copy of five months and

the notice dated 10.04.2004 has been sent to the fifth petitioner not to Nagpur address and the said notice has been sent to his address at the suit

village and that he has not gone to Nagpur and that he is in suit village and since the application lacks bona fide and further the other petitioners

have not appeared before the trial Court on the suit hearing date and they have not conducted the case and therefore, this application has to be

dismissed.

It is represented before this Court that P.W.1 is to be cross examined. Only at that juncture the suit has been decreed exparte in the absence of

the petitioners prosecuting the case diligently any further.

On the side of the revision petitioners, no one has entered into the witness box to let in evidence. Not even a document has been marked on

their side. Per contra, on the side of respondent, R.W.1 has been examined and cross examined also. R.W.1 in his cross examination has

specifically denied the averments of the fifth petitioners affidavit in I.A. No. 1229 of 2004 in toto.

A perusal of the plaint indicates that the suit has been filed by the plaintiffs as against the defendants praying for the relief of permanent injunction

in respect of suit item Nos. 3 and 4 and for recovery of damage of Rs. 100/- towards the unlawful cutting of trees etc.

The sum and substance of the evidence of R.W.1 is to the effect that the fifth petitioner has been only in the suit village and that he has not gone

to Nagpur and he remained their for one year in connection with his cloth business. In fact, according to the respondents, there is no impediment

for other petitioners to appear on the hearing date of the main case before the trial Court. But according to the revision petitioners, it is only the fifth

petitioner has been looking after the case and other petitioners are said to be ignorant. It is to be noted that ignorance of law is no excuse. When

the suit has remained in part heard stage, it is for the parties to take active and diligent part in prosecuting the matter further so that the issues

involved in the suit can be completely and comprehensively decided once for all. However, such a course has not been resorted to by the

petitioners in the instant case.

The Limitation Act enables the Court to do substantial Justice while disposing of the matters on merits. Preference can be given to do

evenhanded Justice on merits, rather than to give preference to an approach which scuttles a decision on merits.

By and large a litigant does not stand to gain by resorting to unnecessary delay or filing an application to condone the delay in a belated

fashion. In fact, he runs a serious risk in projecting an application with an inordinate delay. Refusing to set aside an application to condone the

delay will certainly result in a meritorious matter being thrown out at the threshold and the cause of justice being defeated. On the other hand, if the

litigants are allowed to take part in the main proceedings then the cause in the suit will be decided on merits of course after providing opportunity to

the parties. A Court of law is to deliver substantial justice overriding technicalities to secure the ends of justice. One cannot assume that delay has

occasioned deliberately or on account of malafides or on account of culpable negligence. Therefore, this Court is of the considered view that an

opportunity has to be given to the petitioners to prove their case and also instead of taking a pedantic approach but taking a liberal view in a

rational pragmatic common sense manner allows the civil revision petition of course with a condition that the petitioners shall pay a sum of Rs.

2000/- as penalty to the respondents Counsel directly on or before 07.8.2009 failing which the petition shall stand dismissed automatically without

any further reference.

In fine, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A. No. 1229 of 2004 is set aside. The petitioners are

directed to pay the cost of Rs. 2000/- by way of penalty to the respondents Counsel directly on or before 07.8.2009, failing which the petition

shall stand dismissed automatically without any further reference. Having regard to the facts and circumstances of the case, there shall be no order

as to costs. Consequently, connected miscellaneous petition is closed.