Muniyan vs Eromia and Appavu

S. Manikumar, J.—Civil Revision Petition is directed against the order and decretal order made in I.A. No. 50 of 2012 dated 30.08.2012

in AS. No. 18 of 2009 on the file of the learned Principal District Judge, Villupuram, dismissing the application filed for restoration of an appeal.

Material on record discloses that a suit in O.S. No. 240 of 2003, has been filed by the respondents, for partition in respect of their 2/3 share in the

suit schedule properties, for mesne profits and for other reliefs. Upon contest, the learned Principal District Judge vide judgment and decree dated

24.06.2004, has granted the relief that the plaintiffs Eromia and Appavoo are entitled to 1/3 share each, in the suit schedule property. The trial

Court has not granted the relief of mesne profits. Being aggrieved by the same, the 1st defendant has filed an appeal on the file of the learned

Subordinate Judge, Villupuram in the year 2006. The seal affixed on the memorandum of grounds of appeal shows that the appeal papers were

received by the learned Subordinate Judge, Villupuram on 16.11.2004. The appeal seemed to have been numbered in the year 2006 as A.S. No.

109 of 2006. The appeal has not been disposed of for nearly three years till 2009 and that the same has been transmitted to the learned Principal

District Judge, Villupuram and renumbered as A.S. No. 18 of 2009. The said appeal has been posted in the list on 03.08.2009 and at the instance

of the appellant, it has been adjourned to 04.08.2009. There was no representation on 04.08.2009. Hence, it came to be dismissed for default on

04.08.2009, which constrained the revision petitioner/appellant to file an application to restore the appeal, which has been dismissed for default.

Accordingly, the revision petitioner/appellant has filed two applications, viz., I.A. No. 34 of 2011 to condone the delay of 222 days in filing an

application to set aside the order of dismissal and I.A. No. 109 of 2011, to restore the appeal, which was dismissed on 04.08.2009 for default.

Material on record discloses that by order dated 13.09.2011, the applications have been ordered on payment of cost of Rs. 1,000/-. Again

when the appeal was listed on 07.02.2012, the matter was not represented on 07.02.2012. Hence, the learned Principal District Judge,

Villupuram has dismissed the appeal for default. Therefore, the revision petitioner/appellant has filed another application u/s 41 Rule 19 of CPC to

restore the appeal, which was dismissed for default on 07.02.2012.

Material on record discloses that the reason assigned by the revision petitioner/appellant was that on 14.01.2012, when he was riding a

motorcycle, he met with an accident and that he was taking treatment in a private hospital at Thiruvananthapuram and that therefore, he could not

meet his counsel and instruct him to conduct the appeal. After recovery from illness, he was informed of the dismissal of the appeal for default. In

the above said circumstances, in the supporting affidavit filed for restoration of the appeal, which was dismissed for default on 07.02.2012, he has

submitted that his absence was neither wilful nor wanton, and hence sought for restoration.

Per contra, narrating the events stated supra, as to how the appeal was procrastinated, the respondents/decree holders, have submitted that the

reasons assigned for restoration are not bonafide. They have also submitted that in the absence of any medical record to prove that the revision

petitioner/appellant, met with an accident and took treatment in a private hospital, the reasons assigned, were only for the purpose of keeping the

litigation alive with an intention to harass them. According to the respondents, in a suit for partition between full blood brothers, the trial Court after

adjudication of the inter se rights has ordered the reliefs prayed for and after successful procrastination of the appeal for a long time, since the date

of filing of the suit, the revision petitioner/appellant has delayed the litigation with an intention to harass the decree holders.

Upon consideration of the sequence of events from the date of institution of the appeal, in the year 2004, numbering of the appeal, in the year

2006, dismissal for default in the year 2009, earlier order of restoration of the appeal, after considerable delay and the conduct of the appellant in

again allowing the appeal to be dismissed for default in the year 2012 and also of the fact that the appellate Court had already exercised its

discretion, the Court below has arrived at a conclusion that the revision petitioner/appellant, has successfully dragged on the appeal only for the

purpose of keeping the litigation alive and for the above reasons dismissed the petition for restoration, holding that the intention of the revision

petitioner/appellant was only to drag on the proceedings unmindful of the Court hours.

Though, Ms. N.K. Thiruveni, learned counsel for the revision petitioner/appellant assailed the correctness of the order and the decretal order

made in I.A. No. 50 of 2012, dated 30.08.2012, in A.S. No. 18 of 2009 on the file of the learned Principal District Judge, Villupuram, on the

grounds that the Court has failed to take note of the pleadings in the restoration application that the revision petitioner/appellant had the knowledge

of the dismissal of the appeal for default only on 01.03.2012 and reliance was also placed on the decision of the Supreme Court in Rafiq and

Another Vs. Munshilal and Another, (1), this Court is not inclined to accept the said submissions. Two reasons have been assigned in the

supporting affidavit of I.A. No. 50/12. (1) Blaming the advocate i.e., the revision petitioner/appellant, came to know about the order of dismissal

of the appeal for default, through his counsel only on 01.03.2012 and (2) that the revision petitioner/appellant met with an accident on 14.01.2012.

In Rayapprolu Viswanadham Vs. Rayaprolu Dakshinamurthy, this Court at Para No. 1, has held as follows:

If there is a valid excuse for the appellant''s absence on the date on which the appeal was dismissed for default, previous negligence or want of

diligence on his part to prosecute the appeal should not be made a ground disentitling him for restoration and have the appeal restored. Where,

therefore, an uncontradicted fact that the appellant was prevented from attending Court on the date of the hearing of his appeal by the death of his

sister within ten days of the date of appeal and that he was also ailing was pleaded as a cause for default, the appellate Court should have accepted

the application to restore his appeal and should not have rejected it on the ground that there was a prior default on the appellant''s part.

In Rafiq and Another Vs. Munshilal and Another, , the Supreme Court at paragraph No. 3, held as follows:

where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was

rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present

adversary legal system, has selected his advocate briefed him and paid his fee can remain supremely confident that his lawyer will look after his

interest and such a innocent party who has done everything in his power and expected of him should not suffer for the inaction, deliberate omission

or misdemeanour of his counsel.

Apparently, the 1st reason assigned by the revision petitioner/appellant is not substantiated. In so far as the 2nd reason assigned in the

supporting affidavit to I.A. 50 of 2012, is concerned, it could be seen from the material on record that when the application, I.A. No. 34 of 2011,

filed to condone the delay of 222 days, in filing the petition to restore the appeal, which was dismissed on 04.08.2009 and the other application

I.A. No. 109 of 2011, for restoration of the appeal, have been ordered, on payment of cost of Rs. 1,000/- on 13.09.2011, the revision

petitioner/appellant ought to have been diligent in prosecuting the appeal, which was listed on 07.02.2012. In Rafiq''s case, the appeal was pending

in the High Court and therefore, on the facts and circumstances, of the said case, the Supreme Court held that the party should not suffer for the

inaction, deliberate omission or misdemeanour of his counsel.

In the case on hand, the appeal has been filed in the year 2004. But it has been numbered only in the year 2006. After nearly three years, the

appeal has been transmitted to the learned Principal District Judge, Villupuram and renumbered as A.S. No. 18 of 2009. Thereafter, the appeal

has been listed on 03.08.2009, at the instance of Revision petitioner/appellant, it has been adjourned to 04.09.2009, on which date the appeal

came to be dismissed for default. Though this Court in Rayapprolu Viswanadham''s case has held that if there is a valid reason for the appellant''s

absence, on the date on which, the appeal was dismissed for default, previous negligence or want of diligence on his part to prosecute the appeal

should not be made a ground for disentitling him for restoration and to have the appeal restored, in the reported case, the reason assigned was that

on the date of hearing of the appeal, the appellant therein was prevented due to his sister''s death and that he was also ailing. On the abovesaid

uncontroverted facts, holding that the appellant therein, was prevented from attending the Court on the date of hearing of the appeal, the High

Court interfered with the application filed under Order 41 Rule 19 CPC filed to set aside the order of dismissal of the appeal for default.

Reverting back to the case on hand, the other reason assigned by the revision petitioner/appellant, is that on 14.01.2012, when he was riding a

motorcycle, he met with an accident and since he was taking treatment in a private hospital, at Thiruvananthapuram, he could not meet and instruct

his counsel to contest the appeal, is not substantiated by production of any medical records. The suit has been decreed and the appeal filed in the

year 2004 has been dragged on, for nearly 8 years, and came to be dismissed for default.

In Kaliammal, Ardhanari, Valliammal and Kottathooran Vs. Sundharammal and Ramalingam, , this Court has held that there must be a finality

to the proceedings. As rightly observed by the learned Principal District Judge Villupuram, when a decree for partition has been granted in the suit

in O.S. No. 240 of 2003, the revision petitioner, who is a full blood brother has dragged on the appeal, for nearly 8 years. Let me also consider

some of the decisions, of the apex Court dealing with the aspect of delay in filing the application or to set aside the exparte order/decrees, as the

case may be.

In G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, the Supreme Court has held that the expression

sufficient cause"" in Section 5 of the Limitation Act, 1963 must receive a liberal construction, so as to advance substantial justice, where no gross

negligence or deliberate inaction of lack of bonafide is imputable to the party seeking condonation of delay.

In N. Balakrishnan Vs. M. Krishnamurthy, the Supreme Court has set out certain parameters for condoning the delay. Paragraph Nos. 9 to 13

are extracted hereunder.

It is axiomatic that 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 want of acceptable explanation whereas in certain other cases delay of very

long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive

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

discretion was on whole 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.

The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance

substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would

transform into a good cause.

Rule of limitation are not meant to destroy the right 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. Law of limitation fixes a life-

span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of

time newer causes would sprout up necessitating 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. 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 right 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 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, and The State of West Bengal Vs. The

Administrator, Howrah Municipality and Others, .

It must be remembered that in every case 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. While condoning delay the Could should not forget

the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a 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 Kaliammal, Ardhanari, Valliammal and Kottathooran Vs. Sundharammal and Ramalingam, this Court has held as follows.

As noted earlier, final decree has been passed and in the E.P., delivery of possession was also ordered on 05.07.2002. If I.A. No. 11 of 1995

is to be allowed at this stage, it would unsettle the various proceedings of the Court. Interest of justice and enquiry requires that there must be an

end to the litigation. Or otherwise, the right accrued to the opposite party would be unsettled by the uncertainties of the litigation.

In Balwant Singh (Dead) Vs. Jagdish Singh and Others, the Supreme Court held as follows:

whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the

provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected

object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. The Court should not give such an

interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22,

with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these

provisions have to be given their true and correct meaning and must be applied wherever called for. If the Court should take a very liberal

approach and interpret these provisions in such a manner and so liberally, irrespective of the period of delay, it would amount to practically

rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.

Liberal construction of the expression ''sufficient cause'' is intended to advance substantial justice which itself presupposes no negligence or inaction

on the part of the applicant, to whom want of bona fide is imputable. The expression ''sufficient cause'' implies the presence of legal and adequate

reasons. The word ''sufficient'' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than

that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when

viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise

of its judicial discretion, to treat the delay as an excusable one. The party should show that besides acting bona fide, it had taken all possible steps

within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see

whether it could have been avoided by the party by the exercise of due care and attention.

In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, the Supreme Court held as follows:

Para 14: The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights

of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept

of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are

empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period

of limitation.

Para 15: The expression ""Sufficient cause"" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to

apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the

applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that

substantive rights of the parties are not defeated merely because of delay.

Para 20: A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the

former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.

Para 23: What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of

power u/s 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has

acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

Para 24: What colour the expression ""Sufficient cause"", would get in the factual matrix of a given case would largely depend on bona fide nature of

the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack

bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly

negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

Para 25: In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision

making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its

agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea

that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.

In the light of the decisions stated supra and having regard to the conduct of one of the full blood brothers, a party to the lis, in protracting the

litigation for nearly 8 years, this Court is not inclined to interfere with the order and decree made in I.A. No. 50 of 2012 dated 30.08.2012, on the

file of the learned Principal District Judge, Villupuram. Hence, the Civil Revision Petition is dismissed. No costs.