P. Subramanian Nadar vs John Raj

Honourable Mr. G. Rajasuria, J.—Heard both the sides. A resume of facts absolutely necessary for the disposal of this Civil Revision

Petition would run thus:

The respondent filed the suit for specific performance of the agreement to sell in respect of an immovable property belonging to the revision

petitioner herein. Vakalat was filed, however, written statement was not filed; whereupon, the defendant was set ex-parte and thereafter, E.P. was

filed. After receipt of E.P. notice, I.A. No. 220 of 2010 was filed to get the delay of 769 days condoned in filing the application under Order 9

Rule 13 of CPC to get set aside the ex-parte decree on the ground that he was not aware of the passing the ex-parte decree, because his wife

died on 26.02.2007 after prolonged medical treatment and the revision petitioner himself was aged 87 years. The petition was resisted. After

hearing both the sides, the Lower Court dismissed the application. Being aggrieved and dissatisfied with the same, the present Civil Revision

Petition is focused on various grounds.

The learned counsel for the revision petitioner would submit that the delay was not willful and it was only because the petitioner''s wife died after

prolonged treatment and he himself is an old man.

Per contra, the learned counsel for the respondent would submit that the reasons found set out in the affidavit for condoning the delay, are not at

all genuine as they constitute load of baloney, fraught with falsity and mendacity and there is no reason much less valid reason for condoning such

huge delay.

The point for consideration is whether the delay could be condoned for the reasons found set out in the affidavit.

At the outset, I would like to fumigate my mind with the following decisions:

1) Balwant Singh (Dead) Vs. Jagdish Singh and Others, . Certain excerpts from it, would run thus:

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should

be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of

one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to

take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that

party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in

implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of

his acting vigilantly.

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In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., , this Court took the view: (AIR pp. 363-65, paras 7 & amp; 12)

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of

limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In

other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the

decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed.

The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone

delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf

should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR (1890) 13

Mad 269:

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It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in

question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the

court by Section 5. If sufficient cause is not proved nothing further has to be done;

the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in

its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage

that diligence of the party or its bona fides may fall for consideration;

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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.

These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting

such a law does not stand frustrated.

We find it unnecessary to discuss the instances which would fall under either of these classes of cases. 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. (Advanced

Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)

2) Improvement Trust, Ludhiana Vs. Ujagar Singh and Others, . Certain excerpts from it, would run thus:

The property was put to an auction-sale on 12-8-1992. Respondent 5 herein M/s. Jagan Singh and Company (hereinafter shall be referred to

as ""the Company"") offered Rs. 22,65,000, and thus was declared as the highest bidder.

Sale was knocked down in its favour, and later confirmed in its favour.

The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. The executing court

then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of

the judgment-debtor on 19-3-1993, 17-4-1993, 8-5-1993 and 29-5-1993. However, on the aforesaid dates none appeared on behalf of the

appellant. Consequently, the evidence of the appellant judgment-debtor was closed. As a necessary consequence thereof the appellant''s

objections came to be dismissed in default due to non-appearance.

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Be that as it may, we are of the opinion that the delay in filing the first appeal before the District Judge, Ludhiana, for setting aside the sale has

not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, the appellant had taken all possible steps to

prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile advocate, and if even thereafter

the appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner

the appellant came to know about the dismissal of its objection filed before the executing court, under Order 21 Rule 90 CPC it made enquiries

and filed the appeal.

While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good

grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From

the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter.

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Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It

is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or

prejudice. It is the duty of the court to see to it that justice should be done between the parties.

For the aforesaid reasons the impugned orders passed by the appellate court, and the order passed by the High Court, are hereby set aside

and quashed.

As a consequence, the matter stands remitted to the executing court for deciding the appellant''s application filed under Order 21 Rule 90 CPC at

an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and Respondent 5, both would

appear before the executing court on 20-7-2010. Being an old case an endeavour would be made by the executing court to take up the case as far

as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no

opinion on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits.

A mere running of the eye over the above decisions would highlight and spotlight that huge delay should not be condoned as a matter of course.

However, in this case, one fact cannot be lost sight of. The petitioner is aged 87 years old and his wife died on 26.02.2007 after prolonged

medical treatment. These two factors looms large in the mind of this Court. But for his old age and death of his wife, he would have certainly

proceeded with the matter.

A cursory look at the ex-parte judgment passed by the Lower Court would show that a cryptic ex-parte judgment was passed without assigning

any reason, which in my opinion is antithetical to the well established principles. As such I would like to condone the delay subject to payment of a

sum of Rs. 6,000/- (Rupees Six Thousand Only) as cost payable by the petitioner to the respondent, within a period of fifteen days from the date

of receipt of a copy of this order. On such payment, the Lower Court shall take up the I.A. filed under Order 9 Rule 13 of CPC together with the

I.A. to be filed by the defendant seeking permission of the Court to file written statement. In the event of allowing all those petitions, the suit itself

shall be disposed of within a period of three months thereafter. The Civil Revision Petition is disposed of accordingly. Consequently, the connected

miscellaneous petition is closed. No costs.