Pandiarajan vs R. Rajammal

Mr. S. Palanivelu, J.—The petitioners are defendants in O.S.No.213 of 2004. The suit is for partition filed by the respondent before the trial Court. On 26.04.2004, the suit was dismissed for default and hence, the respondent filed an application to restore the suit to file along with the application under Section 5 of the Limitation Act to condone the delay of 455 days. 2. In the affidavit, it is alleged that originally the suit was filed in Sub Court, Aruppukottai and on the point of pecuniary jurisdiction, the case was transmitted to the Court of District Munsif, Aruppukottai. The learned Counsel for the plaintiff filed a memo for appearance for his continuous appearance. The suit was dismissed for default on 26.04.2004 since fresh batta was not paid. On 21.08.2004 alone the plaintiff approached the Counsel and enquired about the case and has come to know about the dismissal of the suit. Since she was not in receipt of the letter sent by her Advocate, there was a delay of 455 days which is neither wilful nor wanton and the same occurred by act of God, hence, the delay of 455 days may be condoned. 3. In the counter filed by the defendants, it is averred that it is not correct to state that only when the plaintiff approached the Counsel on 21.08.2004, she came to know about the dismissal of the suit. There is no reason mentioned in the affidavit for long delay of 455 days. The petitioner being the plaintiff ought to have taken due care and is expected to have constant touch with the Counsel at least once in 30 days and that she has not given any reason for every day delay. Hence, the petition may be dismissed. 4. After hearing both parties, the learned District Munsif, Aruppukottai, has passed conditional order allowing the application on payment of cost of Rs.2,000/- after observing that even though the petitioner has not adduced any valid reasons, however, in view of the Court on imposition of heavy costs, the petition should be allowed. This is the order challenged by the defendants in the suit in this revision. 5. Point for consideration:

Whether the respondent has shown sufficient cause for the delay of 455 days in filing the petition for restoration of the suit? Point: 6. Mr. Parthasarathi, learned Counsel for the petitioners would submit that inasmuch as the trial Court has recorded the finding to the effect that the petitioner has not furnished any valid reason for the delay of 455 days, there is no justification on its part to allow the application on costs and it should have been dismissed the application. It is his further contention that when there is no sufficient cause shown by the respondent it is not for the Court to condone the delay which is inordinate. 7. Repelling the contentions, Mrs. Jessi Jeeva Priya, learned Counsel for the respondent would contend that even in the affidavit it is stated that only because of the default in payment of fresh batta, the suit came to be dismissed and in this regard the respondent could not be attributed with any lapse, that it is also pleaded that the letter posted by the Advocate was not received by her, and that there is nothing wrong on the part of the Court below to pass a conditional order. 8. In support of his contention the learned Counsel for the petitioners placed reliance upon a decision of the Hon''ble Supreme Court in the case of Lanka Venkateswarlu (D) By LRs. v. State of A.P. and others, reported in 2011 STPL (LE) 44856 SC : AIR 2011 SC 1199, wherein it is observed by Their Lordships that while considering the applications for condonation of delay under Section 5 of the Limitation Act, the Court does not enjoy unlimited and unbridled discretionary powers especially judicial powers have to be exercised within reasonable bounds, known to law and the discretion has to be exercised in a systematic manner informed by reason. He also cites a decision of mine reported in 2010 (2) L.W. 363 (Padma and 2 others v. Standard Literature Company (P) Ltd.) in which I have followed the decision of the Hon''ble Supreme Court for the proposition as regards reaching conclusion in an application filed under Section 5 of the Limitation Act. Following are the extractions of the Supreme Court decision in my judgment: "7. Mr. B. Kumar, the learned Senior Counsel appearing for the petitioners/landlords would place reliance on the judgment of the Apex Court in 2008 (5) CTC 663 Pundlik Jalam Patil (D) by Lrs. v. Exe. Eng. Jalgaon Medium Project and another, in which Their Lordships have held as follows: "12. ... ... ... It is true that the power to condone the delay rests with the Court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior Court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court. ... ... ... ... ... ... ... ... ... ... ... ... 23. Statutes of limitation are sometimes described as ''statutues of peace''. An unlimited and perpetual threat of limitation creates insecurity and uncertainity; some kind of limitation is essential for public order. This Court in Rajender Singh and others v. Santa Singh and others, 1973 (2) SCC 705, has observed: "the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party''s own inaction, negligence or laches." in Motichand v. Munshi, 1969(2) SCR 824, this Court observed that this principle is based on the maxim "interest republicae ut sit finis litum", that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression. It needs to restatement at our hand that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. The are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy." 10. In S.S. Jain Singh (Mambalam) Trust rep by its Secretary Mr. J. Kalyan Chand v. Arulmighu Bashyakar Adichenna, Kesava Perumal Thirukoil, rep by its Executive Officer, Arulmighu Kothandaramar Temple], this Court has extracted the ratio laid down by the Apex Court which is as follows: "3. The learned counsel for the revision petitioner would contend that the petitioner shall not be allowed to suffer for no fault on him. In support of this contention the learned counsel for the revision petitioner would rely on a decision of this Court in Adhikesavan v. Kalavathi. The learned counsel also relied on N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222, wherein the ratio decidendi laid down by the Honourable Apex Court in a case of similar nature, runs as follows: Rules of limitation are not meant to destroy the right 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 waited 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 Mum (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." 9. In para 12, I have observed that in view of the settled position, the party on whom the burden of explaining the delay rests, shall show sufficient cause for the delay to the satisfaction of the Court and if any right accrues to other party by lapse of time, the delay could not be condoned so as to defeat such rights. The discretion in the matter of condonation of delay must be exercised judicially as well as judiciously. In another decision reported in 2009 (1) CTC 319 (C. Raghupathy v. C.Govindan and others), this Court has observed that in the matter of explaining delay, putting the blame on the Counsel cannot be an excuse to the petitioner to establish sufficient cause for condonation of delay and that it is also well settled that the question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a victorious litigant cannot be expected to remain disgruntled indefinitely for a period to be determined at the whims and fancies of the opponent. 10. The learned Counsel for the respondent also placed reliance upon the decision of the Hon''ble Supreme Court in AIR 2011 SC 1199 (referred to supra) wherein Their Lordships have explained the terms in "liberal approach" etc. The following are the observations of the Apex Court on this point: "Whilst considering application for condonation of delay under Section 5 of the Limitation Act, the Court do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. The concepts such as "liberal approach", "justice-oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. Thus, where the High Court concluded that delay was caused by the inefficiency and ineptitude of the Government Pleaders, condonations of delay by High Court would be improper." 11. In para 19 of the decision, it is observed that at the out set, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. In M.Balakrishnan''s case (AIR 1998 SC 3222) (supra) (referred to in para 20) the Supreme Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties and they are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. 12. The learned Counsel for the petitioner laying stress on the principles laid down by the Hon''ble Supreme Court in Lanka Venkateswarlu case (supra) urged that when the Full Bench of the Andhra Pradesh High Court has recorded the finding that they were not satisfied by the reason adduced by the State of Andhra Pradesh is not satisfactory, it is not proper on their part to condone the delay. While the Supreme Court has taken up a discussion as regards condonation of delay in this circumstance, it is observed that it is not permissible. It is profitable to extract the observations recorded by the Full Bench of Andhra Pradesh High Court as well as the discussion taken up by the Supreme Court on the basis of the said observations and conclusions thereof, which go as under: "23. Let us now examine as to whether the High Court was justified in condoning the delay in the peculiar facts of the presence case. The High Court in its judgment records the following conclusions:- "(1) The Government Pleader having filed the appeal on 18.2.1983 has taken three long years to get the appeal numbered. (2) The sole respondent died in 1990. The learned counsel for the respondent submits that he served a letter on the learned Government Pleader bringing to his notice about the death of his client in 1990 itself. Since the letter is not traced we are not giving much importance to that fact. But at the same time this fact was brought to the notice of the Government Pleader on 24.2.1997 when the appeal was listed for hearing. (3) Even though the Court gave sufficient time the Government Pleader has not taken any steps to bring LRs. on record. (4) After one year the Court passed a Conditional Order on 6.2.1998 and the appeal was dismissed for not bringing the LRs. on record. (5) After two more years the concerned officials of the Government and the Government Pleader in office at the relevant point of time, filed some applications, which are not in order. (6) Even then they have not bestowed any attention either to comply with the defects in filing the application or in getting the orders are passed on these applications. But at the same time they went on taking time without knowing for what purpose they were taking time." In the result an appeal which would have been disposed of in 1997 remained pending all these years mainly due to the negligence on the part of the Government Pleader in office. Thereafter at the two stages, the High Court records that:- "In the normal course we would have thrown out these applications without having second thought in the matter.............." "We have already observed that in the normal course we would have dismissed the applications for severe latches on the part of the appellants and their counsel." 24. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 25. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders. The displeasure of the Court is patently apparent from the impugned order itself. In the opening paragraph of the impugned order the High Court has, rather sarcastically, dubbed the government pleaders as without merit and ability. Such an insinuation is clearly discernable from the observation that "This is a classic case, how the learned government pleaders appointed on the basis of merit and ability (emphasis supplied) are discharging their function protecting the interest of their clients". Having said so, the High Court, graphically narrated the clear dereliction of duty by the concerned government pleaders in not pursuing the appeal before the High Court diligently. The High Court has set out the different stages at which the government pleaders had exhibited almost culpable negligence in performance of their duties. The High Court found the justification given by the government pleaders to be unacceptable. Twice in the impugned order, it was recorded that in the normal course, the applications would have been thrown out without having a second thought in the matter. Having recorded such conclusions, inexplicably, the High Court proceeds to condone the unconscionable delay. 26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any his between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers." 13. The Supreme Court in the above said judgment has also held that in its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the "justice oriented approach", the bedrock of which is fairness and impartiality. Concluding the judgment, Their Lordships have stated that the caustic remarks made by the High Court against the Government Pleaders and the Court staff clearly exhibits a departure from the principles quoted in the judgment. 14. The learned Counsel for the respondent placed reliance upon a decision of the Supreme Court in 1998 (7) SCC 123 : AIR 1998 SC 3222. This decision has also been referred to in the case of Lanka Venkateswarlu. 15. The facts available in the present case on hand are not distinguishable. In this case also the learned District Judge has recorded that the petitioner has not shown any valid reason but he has proceeded to condone the delay and this attitude, in view of the Supreme Court, is not sustainable and judicial generosity cannot be extended in this way. There is no other reason for the Court below to condone the delay while recording the reason of absence of sufficient cause. Following the ratio and principles laid down in the case of Lanka Venkateswarlu, I am of the considered opinion that the order passed by the Court below allowing the application is not legally sustainable which has to be reversed and it is accordingly set aside. The Civil Revision Petition deserves to be allowed. In fine, the Civil Revision Petition is allowed setting aside the order challenged before this Court. Consequently, connected miscellaneous petition is closed. No costs. C.R.P. Allowed M.P. Closed - No Costs.