Radhika, Rajesh and Rajalekshmi vs Sreekumaran Nair

M. Venugopal, J.—The Revision Petitioners/Plaintiffs 2,3 and 4 have filed the present Civil Revision Petition before this Court aggrieved against the order passed in I.A. No. 1161 of 2002 in O.S. No 13 of 1997 dated 23.6.2003 passed by the learned Sub Judge, Padmanabhapuram.

The Civil Revision Petitioners/Plaintiffs 2 to 4 have been brought on record as legal heirs of the deceased first Plaintiff Ramesan Nair, who figured as the Plaintiff in O.S. No. 13 of 1997 filed for the relief of permanent injunction.

The trial court while passing orders in I.A. No. 1161 of 2002 dated 23.6.2003 in O.S. No. 13 of 1997 has, among other things, observed that "In the suit it is informed that one Petitioner has been suffering from illness and that for non-appearance of other Petitioners no specific reasons have been assigned and hence, each and ever day''s delay will have to be explained properly and since the reasons assigned by the Petitioners in regard to the restoration of the suit to file in I.A. No. 1161 of 2002 is not a acceptable one. The application has been resultantly dismissed with costs.

Being dissatisfied with the said order dated 23.6.2003 in I.A. No. 1161 of 2002 in O.S. No. 13 of 1997 passed by the learned Sub Judge, Padmanabhapuram, the Revision Petitioners have filed the present Civil Revision Petition before this Court. According to the learned Counsel for the Revision Petitioners/Plaintiffs 2 to 4, the impugned order of the trial court in I.A. No. 1161 of 2002 dated 23.6.2003 in O.S. No. 13 of 1997 is contrary to law and vitiated by the material irregularities and moreover, the trial court should have accepted the reasons mentioned by the Petitioners in the application to condone the delay in filing the application to restore the suit.

The learned Counsel for the Petitioners/Plaintiffs 2 to 4 urges before this Court that the Medical Certificate produced by the Petitioners ought to have been appreciated by the trial court, properly. But, the same has not been done, which has resulted in serious miscarriage of justice. The learned Counsel for the Petitioner takes a plea that the first Petitioner, (wife of deceased first Plaintiff) has been conducting the case after the demise of her husband and this aspect has not been looked into by the trial court in a real perspective. In any event, the trial court should have provided an opportunity to the Petitioners to have their cause being decided on merits.

Contending contra, it is the submission of the learned Counsel for the Respondent/Defendant that the trial court, while dismissing the I.A. No. 1161 of 2002, has taken into account all the relevant facts and circumstances of the case in an attendant fashion and that too, in an integral way and arrived at a conclusion that the Petitioners have not explained each and every day''s delay in their applications and also that no proper reasons have been assigned by the other Petitioners as to why they have not appeared when the matter has been posted for hearing because of the simple fact that the only one Petitioner has specified the reason of ill health. Lastly, it is contended that there is no infirmity in the conclusion arrived at by the trial court in dismissing I.A. No. 1161 of 2002 and the same need not be interfered with by the Court sitting in the revision jurisdiction at this distance of time.

This Court has heard the learned Counsel appearing for the Petitioner and the learned Counsel appearing for the Respondent/Defendant and noticed their contentions.

Admittedly, the main suit in O.S. No. 13 of 1997 has been dismissed for default on 26.6.2001. The Second Plaintiff/First Petitioner in I.A. No. 1161 of 2002 has not been keeping well from 10.6.2001 to 02.10.2001 and she has produced the Medical Certificate and further more, she has not been in a position to travel till 3.10.2001 and on 4.10.2001, she has come to Thukkalai and on an enquiry, she has come to know through her Lawyer on 5.10.2001 that to restore the suit to file she has made arrangement to file an application and on 6.10.2001, 7.10.2001 respectively after the Court Holidays she has prepared the application and filed the same on 11.10.2001.

In short, it is quite evident from the contents of the affidavit filed in I.A. No. 1161 of 2002 by the Petitioners that she has not come to know about the main suit being dismissed for default on 26.6.2001 and in this regard, there has occasioned a delay of 77 days.

When a Court of Law deals with an application to condone the delay filed u/s 5 of the Limitation Act, such application will have to be generally viewed in a liberal and lenient way to do substantial justice between the parties. By projecting an application to condone the delay as per Section 5 of the Limitation Act, belatedly no party will file the same with a mala fide intention. If a party files a delay condonation application belatedly, he or she runs a serious risk.

However, if the Section 5 condonation application filed u/s 5 of the Limitation Act is allowed by this Court, to advance the cause of substantial justice, then the maximum that can happen is that a party will be allowed to partake in the main arena of legal proceedings and the main cause can be decided on merits. Per contra, if a meritorious matter is thrown out at the threshold or at early stage the cause of justice will be certainly defeated. In a condonation of delay application filed u/s 5 of the Limitation Act, 1963 the length and breadth of the delay is not a material/relevant factor.

It is to be borne in mind that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

As far as the present case is concerned the first Revision Petitioner''s husband has expired. In the affidavit in I.A. No. 1161 of 2002 in paragraph Nos. 5 it is averred that from 10.6.2001 till 2.10.2001 the Petitioner viz. the wife of the deceased Ramesan Nair has not been keeping good health only on 5.10.2001, she has come to know about the main suit and has seen her Advocate and made arrangements to file necessary application and has projected the application on 11.10.2001. At this stage, this Court aptly point out even though the first Petitioner in I.A. No. 1161 of 2002 in paragraph No. 5 has averred that she has produced the Medical Certificate for herself is not keeping good health for a period from 10.6.2001 to 2.10.2001 for non-filing of the suit Medical Certificate is not a palatable one in the considered opinion of this Court.

One cannot ignore a important fact that when technical considerations will have to be overridden by means of deliverance of substantial justice and the cause of advancing of justice which deserves that the ends of justice will have to be taken into account as a primordial factor.

Be that as it may, on a careful consideration of respective contentions and in view of the fact that the first Petitioner''s husband has expired and moreover, since the first Petitioner has not been keeping good health from 10.6.2001 till 02.10.2001 etc, this Court by taking a Lenient, Liberal, Pragmatic, Rational and a Common Sense Approach allows this Civil Revision Petition in the interest of justice. Further, this Court opines that the view taken by the trial court that each and every day''s delay has not been explained by the Petitioners in I.A. No. 1161 of 2002 and also to the reference made by the trial court that only one Petitioner has not been good health as informed in the case and that in respect of other Petitioners, no proper reasons have been assigned as to the non-appearance before the trial court on the date of hearing are not a correct and valid one in the eye of law. Accordingly, this Court sets aside the order passed in I.A. No. 1161 of 202 in furtherance of substantial cause of justice and allows the Civil Revision Petition to promote substantial cause of justice.

In the result, the Civil Revision Petition is allowed. The order passed in I.A. No. 1161 of 2002 in 23.6.2003 sets aside by this Court for the reasons assigned in this Civil Revision Petition. No costs.