Rajalingam and Others vs Maariyaayi

G. Chockalingam, J.—1. This civil revision petition is filed against the fair and decretal order, dated 30.09.2003 and made in I.A. No. 760 of 2002 in O.S. No. 192 of 2000 on the file of the District Munsif, Manapparai, dismissing the application to condone the delay of 186 days to set aside the ex-parte.

Heard the learned counsel appearing for the petitioner. There is no representation for the respondent.

The learned counsel appearing for the petitioner has contended that the trial court erred in dismissing the condone delay petition filed by the petitioner, even though convincing reasons were stated therein and that the trial court has failed to consider the evidence of P.W.1 and 2, who have clearly stated the illness of the first petitioner. Further, the learned counsel would contend that the said suit in O.S. No. 192 of 2000 was filed by the respondent/plaintiff before the District Munsif Court, Manapparai. When the said suit was posted on 15.02.2002 for filing written statement, the petitioners/defendants have not appeared and that the trial Court has passed the ex-parte decree against them and that since the first petitioner, who has been followed the case, has affected with Jaundice and continuously taking treatment, he could not filed the petition to set aside the ex-parte decree in time. Therefore, they had filed an application in I.A. No. 760 of 2002 in O.S. No. 192 of 2002 before the learned District Munsif, Manapparai to condone the delay of 186 days in filing the petition to set aside the ex-parte decree passed on 15.02.2002. The trial court, without considering the above reasons, has simply dismissed the petition filed by the petitioners for condonation of delay. Hence, he prayed that the impugned order passed by the trial court has to be set aside and the civil revision petition has to be allowed.

The learned counsel has further contended that the delay caused in filing the application to set aside the ex-parte decree is neither willful nor wanton. The learned counsel has also contended that the petitioners are ready to compensate the respondent/plaintiff by way of cost. In support of his contention, he has relied upon the following two decisions:-

(a)., (1998)7 SCC 123 [N.Balakrishnan Vs. M.Krishnamurthy], wherein the Hon''ble Apex Court has held as follows:-

"11. In this case, it is true that there has been a delay of 185 days in filing the application in I.A. No. 632 of 2005 in filing the application to set aside the ex-parte decree. In the light of the aforesaid decisions as well as the law laid down by the apex court in its various decisions relating to condonation of delay, the words ''''Sufficient Cause'''' found in section 5 of the Limitation Act, 1963, should receive a liberal construction so as to advance substantial justice and while giving opportunity to the revision petitioner, the right accrued to the respondent is also to be kept in view and balance has to be struck and has to be applied. In the present case, it is found that consequent to the order passed in the Execution Petition, the respondents had taken delivery of the suit property on 06.01.2006.

In view of the above circumstances, this court finds it appropriate to pass an order directing the learned Principal District Munsif court, Coimbatore to allow I.A. No. 632 of 2005 filed by the petitioner to condone the delay of 185 days in filing the application to set aside the ex-parte decree, dated 13.04.2005, on the petitioners making a payment of Rs.5000 to the respondents as costs within two weeks from the date of receipt of a copy of this order. On such proof being shown to the satisfaction of this court, the suit in O.S. No. 2209 of 1993 may be taken on file and decided on merits, in accordance with law, within a period of four months thereafter."

(b). 2006(2) CTC [Syed Nusarathulla Vs. Natarajan and others], wherein the Hon''ble Apex court has held as follows:-

"10. 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. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut 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 rights 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.

This court has carefully perused the submission made on behalf of the petitioners and also perused the entire materials available on record.

It is seen from the records that originally, the suit was filed before the District Munsif Court, Manapparai. When the said suit was posted on 15.02.2002 for filing written statement, the petitioners/defendants have not appeared. Hence, the trial Court has passed the ex-parte decree against them. As the first petitioner, who has been followed the case, has affected with Jaundice and he has been continuously taking treatment, he could not filed the restoration petition in time. Therefore, they had filed an application in I.A. No. 760 of 2002 in O.S. No. 192 of 2002 before the learned District Munsif, Manapparai to condone the delay of 186 days in filing the petition to set aside the ex-parte decree passed on 15.02.2002. The trial court, without considering the above reasons, has simply dismissed the petition filed by the petitioners for condonation of delay in restoring the suit. Hence, this civil revision is preferred.

In this case, in order to prove the case on the side of the petitioners, the petitioners 1 and 2 have examined themselves as PW1 and PW2. In their chief examination, they have deposed that the first petitioner has affected with Jaundice, hence, he could not attend the court. But on the side of the respondent, the respondent herself has examined as R.W.1 and he has opposed the contention put forth on the side of the petitioners.

Keeping in view of the above facts, this Court is of considered view that even though, there was a delay of 186 days in filing the application to set aside the ex-part decree, the delay has to be condoned on terms. In view of above facts and the law laid down in the decisions relied upon by the learned counsel for the petitioners, this Court finds that the impugned order, dated 30.09.2003 is liable to be set aside and the civil revision has to be allowed on payment of cost.

In the result, this revision is allowed on payment of cost of Rs.2,000/- [Rupees Two thousand only] to be deposited by the revision petitioners before this court on or before................. failing which CRP shall stand dismissed. Consequently, connected Miscellaneous Petition is closed. The succeeding party is entitled to get the said amount so deposited.

Post the matter on for reporting compliance.