S. Ramalingam vs Subbulakshmi Ammal

A.C. Arumugaperumal Adityan, J.—Heard the learned Counsel appearing for the revision petitioner as well as the learned Counsel

appearing for the respondent.

This revision has been directed against the order passed in I.A. No. 18456 of 2007 in O.S. No. 7197 of 1999 on the file of II Assistant Judge,

City Civil Court, Chennai which was filed u/s 5 of the Limitation Act to condone the delay of 2210 days in filing a petition to set aside the exparte

decree passed in O.S. No. 7197 of 1999 dated 14.8.2001. The reasoning stated in the affidavit to the petition for condoning the delay of 2210

days is that the counsel who appeared for the petitioner in I.A. No. 18456 of 2007/defendant in O.S. No. 7197 of 1999 was hospitalised in the

month of August 2000 and subsequently died on 1.6.2001 but no one has informed the defendant/petitioner in I.A. No. 18456 of 2007 about the

death of his counsel which resulted in an exparte decee being passed in O.S. No. 7197 of 1999 on 14.8.2001 and that only through the notice

received in R.C.A. No. 346 of 1996 dated 4.10.2007, he came to know about the passing of an exparte decree against him in O.S. No. 7197 of

1999. Immediately, through the present counsel, he had filed the said application in I.A. No. 18456 of 2007 in O.S. No. 7197 of 1999 u/s 5 of

the Limitation Act to condone the delay of 2210 days.

The learned trial Judge, without taking into consideration that the petitioner had knowledge about the passing of an exparte decree in O.S. No.

7197 of 1999, only through the notice received in RCA No. 346 of 1996 on 4.10.2007 about the passing of an exparte decree in O.S. No. 7197

of 1999, had dismissed the said application holding that an inordinate delay of 2210 days in filing a petition to set aside the exparte decree cannot

be condoned.

The learned Counsel appearing for the revision petitioner would contend that O.S. No. 7197 of 1999 was filed by the respondent herein/plaintiff

for declaration that he is the owner of the superstructure in the plaint schedule property which admittedly belonged to Sri Karuneeswarar

Devasthanam, Saidapet and that simultaneous proceedings have been initiated for eviction under R.C.O.P. No. 1105 of 1992 filed by the

defendant in O.S. No. 7197 of 1999/petitioner in I.A. No. 18456 of 2007 in which an application u/s 11(4) of the Tamil Nadu Buildings( Lease

and Rent Control) Act was also filed wherein the present respondent/tenant/plaintiff in O.S. No. 7197 of 1999 had deposited the entire arrears of

rent.

The grievance of the learned Counsel appearing for the revision petitioner is that, who is the owner of the superstructure of the plaint schedule

property is the matter to be decided only in O.S. No. 7197 of 1999 and that the respondent herein/plaintiff in O.S. No. 7197 of 1999 has also

failed to implead the said temple viz., Sri Karuneeswarar Devasthanam who is admittedly the owner of the land as a party in the suit.

The learned Counsel appearing for the revision petitioner in support of his contention that in a petition u/s 5 of the Limitation Act, the length of

delay alone cannot be a criteria to dismiss the same, relied on a decision reported in Mangilal v. Sri Vengeeswarar Alagar Perumal and

Nagathamman Koil Devasthanam 2006(3) L.W. 348 wherein the learned single Judge of this Court following a Division Bench of this Court in

Mohammed Aslam and Others Vs. C.N.A. Gowdhaman, has held as follows:

Equally, we are conscious of the fact that the length of delay is no matter, and acceptability of the explanation is the only criteria. Some times, the

delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases, delay of a very long range can

be condoned as the explanation therefore is satisfactory. In every case of delay, there may be some lapse on the part of the litigant concerned.

That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack the mala fides or it is not put forth

as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay

was occasioned by the party deliberately to gain time, then the Court should not lean towards acceptance of the explanation. We are also aware

that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching

the Court is always deliberate. Now, even the higher Court of this land have interpreted that the words ""sufficient cause"" u/s 5 of the Limitation Act

should receive a liberal construction so as to advance substantial justice.

Now coming to the present facts of the case, there is no dispute that the counsel who has filed vakalat for the revision petitioner/defendant in

O.S. No. 7197 of 1999 expired on 1.6.2001 and before his demise, he was hospitalised from August 2000, even though another advocate''s

name also figures in the vakalath, only late P. Sampath Kumar had signed in the vakalat. There is no material placed before the Court to show that

the revision petitioner had knowledge about the passing of an exparte decree in O.S. No. 7197 of 1999 even before he received the notice in

RCA No. 346 of 1996. For no fault of the revision petitioner, the doors of the justice cannot be shut down on the ground of inordinate delay, I am

of the view that an opportunity must be given to the revision petitioner to put forth his defence in O.S. No. 7197 of 1999 but on payment of cost

which I fix as Rs. 4000/-(Rupees Four thousand) Only.

In fine, this civil revision petition is allowed on condition, the revision petitioner pays a cost of Rs. 4,000/-(Rupees Four thousand) Only to the

other side/respondent on or before 6.2.2009 failing which this civil revision petition shall deem to have been dismissed. On complying with the

condition, the learned trial Judge shall restore O.S. No. 7197 of 1999 on his file and after giving an opportunity to the defendant therein to file his

written statement and after following the formalities viz., framing of issues shall dispose of the suit within a period of two months thereafter in

accordance with law.