S. Murugan vs Malaichamy

K.K. Sasidharan, J.—This Civil Revision Petition is directed against the Order dated 15th April 2010 in I.A. No.65 of 2010 in O.S. No. 177 of 2008, whereby and where under, the learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai, was pleased to dismiss the Application filed by the Petitioners to condone the delay in filing the Application to set aside the ex parte Decree.

The Respondents filed a Suit against the Petitioners before the Additional District Munsif-cum-Judicial Magistrate Court, Manamadurai. The Suit was filed for a Decree of declaration and Permanent Injunction. The Petitioners appeared before the Trial Court and contested the matter.

The Petitioners were earlier set ex parte by the Trial Court. The Petitioners filed an Application to set aside the said Order. The Application was allowed, subject to payment of Cost. Since Cost was not paid, the Application was dismissed. Thereafter, the Petitioners failed to appear before the Trial Court and the same resulted in passing an ex parte Decree on 20th November, 2009.

The Petitioners filed the Application in I.A. No. 65 of 2010 to set aside the ex parte Decree, after condoning the delay. The learned Trial Judge dismissed the said Application primarily on the ground that the earlier Application in I.A No.92 of 2009 was dismissed on account of their failure to pay the Cost. The Order dated 15th April, 2010, is under challenge in this Civil Revision Petition.

Heard the learned Counsel for the Petitioners and the learned Counsel appearing on behalf of Respondents.

The only question that arises for consideration is as to whether the learned Trial Judge was justified in dismissing the Application to condone the delay solely on account of the dismissal of the earlier Application in I.A. No.92 of 2009 for default.

The Petitioners earlier filed an Application in I.A. No.92 of 2009 under order 9, Rule 13 of Code of Civil Procedure, to set aside the ex parte Order. The Petitioners were Defendants 1 & 2 in the said Suit. The learned Trial Judge allowed the Application with cost. The Petitioners were directed to pay the cost on or before 10th November 2009. Since the Petitioners failed to pay cost, within the time permitted by the Court, the Application in I.A. No. 92 of 2009 was dismissed for default.

The Trial Court, after dismissing the Application in I.A. No.92 of 2009, passed an ex parte Decree. It was only to set aside the said ex parte Decree, after condoning the delay, the Petitioners filed the Application in I.A. No.65 of 2010.

The Order passed by the learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai clearly shows that only on account of the dismissal of the earlier Application in I.A. No.92 of 2009, the subsequent Application in I.A. No.65 of 2010, was dismissed.

The Application in I.A. No.65 of 2010 has nothing to do with the earlier Application in I.A. No. 92 of 2009. The Application filed under Order 9, Rule 13, was with a specific purpose. The fact that the said Application was dismissed, on account of the failure on the part of the Petitioners to pay the cost would not deprive them from filing an Application subsequently, to set aside the ex parte Decree.

The ex parte Decree passed by the Trial Court has given a fresh cause of action to the Petitioners to file an Application to set it aside after condoning the delay. The learned Trial Judge appears to be under the impression that the earlier Order would operate as res judicata and the same would debar the Petitioners from filing Applications during the later stage of the proceedings.

The Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, considered an identical question and observed thus:

"16. In the circumstances we consider that a decision or direction in an Interlocutory proceeding of the type provided for by Order 9, Rule 7, is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an Application under Order 11, Rule 13. The latter is a specific statutory remedy provided by the Code for the setting aside of ex parte Decrees.................... "

The Petitioners filed the Application to condone the delay of 49 days. The Petitions have given their own reasons for the delay. The learned Trial Judge failed to consider as to whether the reasons given by the Petitioners would constitute sufficient cause, for the purpose of invoking Section 5 of the Limitation Act.

The Supreme Court in Parimal v. Veena, 2011 (2) CTC 329 (SC) : 2011 (2) Scale 302,explained the concept of "sufficient cause". The Supreme Court said:

"9. "Sufficient Cause" is an expression winch has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.

While deciding whether there is a sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the Judgment impugned before it."

The Supreme Court in S. Ganesharaju v. Narasamma, 2012 (4) Scale 152, observed that matters should be heard on merits rather than shutting the doors at the threshold. The relevant observation reads thus:

"15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act 1963, has to be given a liberal construction so as to advance substantial justice.

Unless Respondents are able to show mala fide in not approaching the Court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.

Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.

We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth has cause. There is no presumption that delay in approaching the Court is always deliberate.

In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the Courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter."

In view of the background facts, the Petitioners must succeed.

In the result, the order dated 15th April 2010 is set aside. The Application in I.A. No.65 of 2010 is allowed.

In the upshot, I allow the Civil Revision Petition. No costs.