R. Krsna Murtii vs K. Sridhar Rao

S. Palanivelu, J.—This Civil Revision Petition is directed against the order dated 23.2.2011 made in I.A. No. 327 of 2010 in O.S.S.R. No. 3224/2003 on the file of the learned Principal District Munsif, Tiruchirappalli.

The Petitioner posing himself as Plaintiff presented a Plaint against the Defendants before the Principal District Munsif Court, Trichy for the relief of restoration of the property. The Plaint was returned on 1.12.2003 at the first instance in order to make certain compliance. The learned Counsel for the Plaintiff/Petitioner re-presented the same after compliance. Again, it was returned by the Court. The learned Counsel for the Plaintiff/Petitioner re-presented the Plaint after compliance along with an Application to condone the delay of 2219 days in re-presentation.

In the Affidavit filed by the Petitioner, he has stated that he filed the Plaint before the Court on 28.11.2003 and the Court returned the same on 21.12.2003 for carrying out certain defects and to rectify the same, one month time was granted. The Plaint was received by the Counsel''s clerk and he had put it in the disposed case rack of the Counsel''s office absentmindedly. The Petitioner was residing in his village. The Petitioner and his family members were forced by the Defendants to live away for various reasons. Thereafter, the Petitioner moved to his Counsel''s Company address, which is in Mathoor and asked about the status of the Suit. The Petitioner was informed that the Plaint was returned. Thereafter, the Petitioner traced the papers and re-presented the same. In this process, there is a delay of 2219 days. Therefore, the delay is neither wilful nor wanton. Hence, the Petitioner prays to condone the delay.

The Respondent filed a counter stating that the Plaint is legally unsustainable and the Petitioner will not be entitled to the relief prayed for. There is no valid or sufficient ground to condone the delay of about 6� years. The allegations made by the Petitioner are false. The Petitioner has not properly explained the delay of 6� years. Hence, the Respondents prayed for dismissal of the Petition with costs.

After hearing the parties, the learned Principal District Munsif, Tiruchi dismissed the Application by observing that sufficient cause has not been shown for the condonation of delay of 2219 days. Hence, the Petitioner is before this Court with this Revision.

The point for consideration is, "whether sufficient cause has been shown for condonation of delay of 2219 days in re-presenting the Plaint?".

The Petitioner appearing in person would submit that there was no lapse on his part; that whenever he contacted his Advocate, he used to say that he would take care of the matter; that the bundle was misplaced with other disposed bundles by the Advocate Clerk in the office of the Advocate; that in the year 2003, the Defendants have taken the Petitioner''s possession forcibly, for which, the Petitioner laid a Complaint before the Police and a First Information Report was also registered and that he was forced to leave to his native place and live in some other place and hence, he could not pursue the matter with his Advocate; that he was under the impression that his Advocate would be concentrating on filing of the Suit and that the delay is neither wilful nor wanton.

The learned Counsel appearing for the First Respondent would submit that the allegations in the Affidavit did not show sufficient cause for condonation of delay; that there is an inordinate delay; that the Suit itself is not maintainable, since the Petitioner has not challenged the eviction order as confirmed by the Rent Control Authority by filing Revision before this Court and hence, the eviction order has become final; that filing of Application in Execution proceedings during the year 2005 by the Petitioner would candidly show that the Petitioner has been in continuous contact with his Advocate and in this regard, it could be seen that the reasons for the delay as contended by the Petitioner could not be true. Even in the Affidavit, the Petitioner has admitted that he did not ask his Counsel with regard to the presentation of the Plaint. Therefore, there is no perversity in the finding of the Court below and there is no valid ground to interfere with the order challenged before this Court.

The Petitioner has filed a Complaint on 1.6.2003 before the Deputy Commissioner of Police, Law and Order, Trichy. He has also produced a copy of the First Information Report to show that he was forced to leave the native place for some time.

The Petitioner has filed E.A. No. 1090 of 2005 before the District Munsif, Trichy praying to receive the accompanying documents in evidence. He has also filed another Application in E.A. No. 356 of 2007 in E.P. No. 681 of 2004 in R.C.O.P. No. 67 of 1997 on the file of the District Munsif Court, Tiruchirappalli, praying the Court to receive the documents, which are enlisted in the Petition. The Application was filed in the year 2007 and the Xerox copy of the Petition filed by the Petitioner shows the adjournment upto 4.12.2008. It is seen that the Application was pending for over two years.

The above said pendency of two Applications shows that the Petitioner has been continuously contacting the Advocate right from 2005 till the disposal of the Applications. In this context, it has to be observed that he was very much having contact with his Advocate to give proper instructions to him. As far as the filing of the First Information Report is concerned, it is not known how long he could not contact his lawyer, so as to follow the case proceedings.

The Petitioner appeared in person and placed reliance upon a decision of the Supreme Court in Royal Orchid Hotels Limited v. G. Jayarama Reddy, 2011 AIR SCW 6081. In that case, the Hon''ble Supreme Court has condoned the delay of 12 years, which had happened on account of the mistake of Counsel. There is a sufficient cause to condone the delay and it was held that the relief should not be refused on the ground that the Manager of the Company is not an illiterate or so ignorant person, who could not calculate the period of limitation. Further, the Supreme Court referred to various decisions and the following is one among the extraction of such decisions:

"20. In Shankara Co-operative Housing Society Limited v. M. Prabhakar, 2011 (5) SCC 607 : AIR 2011 SC 2161 : 2011 AIR SCW 3033, this Court considered the question whether the High Court should entertain Petition filed under Article 226 of the Constitution after long delay and laid down the following principles:

"(1) There is no inviolable Rules of law that whenever there is a delay, the Court must necessarily refuse to entertain the Petition; it is a Rule of practise based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the Petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners.

(3) The satisfactory way of explaining delay in making an Application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the Statutory Rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy.

(4) No hard-and-fast Rule, can be laid down in this regard. Every case shall have to be decided on its own facts.

(5) That representations would not be adequate explanation to take care of the delay."

In paragraph No. 20(2) of the said judgment, it is observed that the Court should not harm innocent parties, if their rights had emerged by the delay on the part of the Petitioners. But the facts of the present case on hand are distinguishable. Here, the Petitioner does not accuse the Advocate. It is his version that whenever he was enquiring his Advocate, he used to say that he is taking care of the case. But, it is not pleaded in the Affidavit. What is mentioned in the Affidavit is that he did not meet his Counsel. Hence, no lapse could be attributed to the Counsel.

He also relied upon a decision of Hon''ble Supreme Court in Rafiq v. Munshilal, AIR 1981 SC 1400, wherein it is observed 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."

He also cites a decision of mine in G. Krishnamoorthy v. Arulmighu Sri Pataleeswarar Devasthanam, 2010 (1) MWN (Civil) 837 : 2010 (1) MLJ 1090, wherein I have observed that an innocent party cannot suffer injustice because of the default of his Advocate. In this case, the Petitioner has not received any communication from his lawyer with regard to the date of hearing.

He also submitted a decision of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy, 1998 (2) CTC 533 (SC) : 1998 (7) SCC 123, in support of his contention. In that case, the Supreme Court observed that in the matter of condonation of delay, acceptability of the explanation for the delay is the sole criterion and length of delay is not relevant and in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, Court should normally condone the delay.

The above said decisions also show that when there is a default on the part of the Counsel of the party and the delay if caused, it could not be attributed to the negligence of the party and in such cases, it has to be taken that the delay has been sufficiently explained. But, in the present case on hand, in the Affidavit filed in support of I.A. No. 327 of 2010, he stated that he did not ask his counsel with regard to the status of the Suit. Hence, he did not blame his Counsel. However, he has stated that the Clerk of his Advocate misplaced the bundle with the other disposed cases in the office of the Advocate.

The learned Counsel for the First Respondent placed reliance upon a decision of the Supreme Court in Binod Bihari Singh v. Union of India, AIR 1993 SC 1245. In paragraph No. 10, it is observed that the Appellant, having taken a false stand on the question of receipt of the signed copy of the award to get rid of the bar of limitation, should not be encouraged to get any premium on the falsehood on his part by rejecting the plea of limitation raised by the Respondent. If the party shows any false reason, the Court should not encourage as per the said decision.

In Pundlik Jalam Patil (D) by L.Rs. v. Exe. Eng. Jalgaon Medium Project, 2008 (5) CTC 663 (SC), the Apex Court has held as follows:

"23. Statutes of limitation are sometimes described as ''statutes of peace''. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in Rajender Singh v. Santa Singh, 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 no restatement at our hands 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. They 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."

In Vellaithai v. V. Duraisami, 2010 (2) MWN (Civil) 688 : 2009 (5) LW 880, a learned Single Judge of this Court has observed that the explanation given by the Respondent that the papers have been mixed up with other bundles in their lawyer''s office and was traced out after three years cannot, at any stretch of imagination, be considered to be a sufficient cause.

In Lala Mata Din v. A. Narayanan, 1969 (2) SCC 770, the Supreme Court has held in paragraph No. 6 as follows:

"6. The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit or a wrong reading of the situation."

In R. Nagarajan v. Dr. D.S. Hariharan, 2009 (5) LW 552, I have refused to condone the delay for want of sufficient cause and after referring to a Full Bench decision of the Calcutta High Court in Nurnahar Bewa v. Rabindra Nath Dev, AIR 1988 Cal. 358, and extracting the operative portion of the said judgment, I have observed as follows:

"10. The learned Counsel for the Petitioner placed reliance upon a Full Bench decision of Calcutta High Court reported in Nurnahar Bewa v. Rabindra Nath Dev, AIR 1988 Cal. 358, in which it is held that the limitation for filing an Application under Order 9, for setting aside the order of dismissal of an Application made under Order 9, is three (3) years under Article 137 of the Limitation Act. However, it is observed that when the time prescribed for setting aside ex-parte decree under Order 9, Rule 13, C.P.C. is 30 days, it is quite inequitable to allow the period to take time for three years to file an Application to restore the Application which was filed under Order 9, which was dismissed for default. The relevant portion of the judgment goes thus:

"However, the High Court observed that when the period of limitation for making an Application under Order 9 for setting aside an ex-parte decree is only thirty days from the date of the impugned order, it is highly inequitable to allow a party to avail a long period of three years under Article 137 of the Limitation Act to make an Application under Order 9, for setting aside the order of dismissal of an Application made under Order 9, for setting aside ex parte decree. A party in whose favour an ex-parte decree has been made cannot but suffer serious prejudice if the fate of the ex-parte decree is allowed to hang indefinitely for three years by allowing the other party to make an Application for setting aside the order dismissing the Application for setting aside ex-parte decree at any time within three years. Therefore, Article, 122 of the Limitation Act requires a suitable amendment so as to bring the Application for setting aside the order of dismissal of the Application made under Order 9, for setting aside ex-parte decree within the scope and ambit of Article 122."

In yet another judgment in Padma v. Standard Literature Company (P) Ltd., 2010 (2) LW 363, I have referred to various decisions of the Supreme Court, wherein the principles have been laid down in the matter of condonation of delay. In paragraph Nos. 7 & 10, it was observed as follows:

Mr. B. Kumar, the learned Senior Counsel appearing for the Petitioners/Landlords would place reliance on the judgment of the Apex Court in Pundlik Jalam Patil (D) by Lrs. v. Exe.Eng.Jalgaon Medium Project, 2008 (5) CTC 663, 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.

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Statutes of limitation are sometimes described as ''statutes of peace''. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in Rajender Singh v. Santa Singh, 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. They 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."

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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, 1998-1999 (1) LW 739, 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 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 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."

The learned Counsel for the First Respondent would also urge that the delay in filing the Suit for delivery of possession has been caused by the Petitioner and hence, the rights of the Respondents have been prejudiced and the rights accrued to them by efflux of time may be considered and, therefore, such a right need not be divested.

In view of the above said decisions and the observations, this Court is of the considered view that the Petitioner has failed to show sufficient cause for the long delazxy of 2219 days. As far as the contention that no lapse could be attributed is concerned, it is his own statement that he did not ask his Advocate with regard to the stage of the case. The reason that his Advocate was at fault is not specifically pleaded in the Affidavit. He has also stated that he could not meet his Counsel, in view of the harassment perpetrated by the Respondents, which does not find place in the Affidavit. Under those circumstances, there is no valid ground or scope for condonation of delay and there is no circumstance to interfere with the order of the Court below, which deserves to be confirmed and it is, accordingly, confirmed. The Revision is devoid of merits, which deserves dismissal at the hands of this Court.

In the result, the Civil Revision Petition is dismissed. No costs.