Sarpudeen vs Pitchai, Muthukannu and Thangarasu

M. Venugopal, J.—The Civil Revision Petitioner/Respondent/Plaintiff has filed the present Civil 2 Revision Petition as against the order

dated 17.02.2003 in I.A. No. 90 of 2002 in O.S. No. 7 of 1998 passed by the learned District Munsif cum Judicial Magistrate, Keeranur.

The trial Court namely, the learned District Munsif cum Judicial Magistrate, Keeranur, while passing orders in I.A. No. 90 of 2002 in O.S. No.

7 of 1998, has among other things observed that the Respondents/Petitioners/ Defendants will have to pay a sum of Rs. 1,200/- (Rupees One

Thousand and Two Hundred only) to the revision Petitioner/Respondent/Plaintiff as costs on or before 27.02.2003, failing which the petition will

stand dismissed and passed the conditional order by allowing the said application with costs.

The learned Counsel for the revision Petitioner/ Respondent/Plaintiff submits that the order of the trial Court in I.A. No. 90 of 2002 in O.S. No.

7 of 1998 is contrary to law and that the trial Court has condoned the delay of 801 days in filing the application to set aside the ex-parte decree u/s

5 of the Limitation Act, in an arbitrary and illegal fashion.

The learned Counsel for the revision Petitioner contends that the main suit is of the year 1998 and that the suit has been posted to 20.09.1999

for filing of the written statement by the Defendants and since the Defendants have not filed their written statements, they have been set ex-parte on

20.09.1999 and an exporter decree has been passed on 08.10.1999. According to the learned Counsel for the Petitioner, the Defendants 2 and 3

are not sick and they are well and further, they have not taken any steps to set aside the ex-parte decree.

The plea of the revision Petitioner is that no proper reasons have been furnished by the Defendants in the affidavit in I.A. No. 90 of 2002 in

O.S. No. 7 of 1998 as to whether the first Defendant had jaundice attack and whether he had treatment etc., and indeed, the trial Court should

have dismissed the application filed u/s 5 of the Limitation Act. Further, the trial Court has lost sight of an important fact that the Respondents/

Petitioners/Defendants only with a view to drag on the proceedings and delay the due process of law has filed I.A. No. 90 of 2002 in O.S. No. 7

of 1998 to condone the delay of 801 days in filing the petition to set aside the ex-parte decree only on 17.01.2002 and therefore, he prays for

allowing the Civil Revision Petition in the interest of justice.

In I.A. No. 90 of 2002, the third Petitioner/third Defendant has filed an affidavit stating that the Respondent/Plaintiff has filed a suit against them

for the relief of permanent injunction and that the suit has been posted to 20.09.1999 for filing of the written statement and further that the first

Defendant on behalf of the Defendants 2 and 3 has been conducting the case in the forefront by meeting his Counsel quite often and has been

getting the details, but the first Defendant who has been looking after the case has been affected with jaundice and has been suffering from long

time and therefore, he has not been in a position to consult the Defendants 2 and 3 and also to meet his Counsel at the appropriate tie and he has

not filed the written statement by appearing before the Court on 20.09.1999 and as such, as against the Defendants, an ex-parte decree has been

passed on 08.10.1999 and to set aside the ex-parte decree dated 08.10.1999, there occurs a delay of 801 days which is not a wanton one and

therefore, he prays for condoning the same.

The revision Petitioner/Plaintiff in his counter to I.A. No. 90 of 2002, has among other things averred that in I.A. No. 90 of 2002 filed on behalf

of the Respondents/ Defendants, the first Defendant has not mentioned as to from what date to what date he has been affected with jaundice and

also the place as to where he has taken treatment and moreover, since it has not been mentioned at what point of time, he has come to know about

the ex-parte decree, all these things will indicate that the reason mentioned in the application is nothing but a concocted one and the disease of

jaundice is not an incurable disease for years together.

Also, it is stated by the revision Petitioner/Plaintiff in the counter that the Respondent/Plaintiff filed E.P. No. 12 of 2001 and that the

Petitioners/Defendants have received the notice from the Court on 12.04.2001 and on 23.04.2001, they have filed the vakalat and that the first

Petitioner/first Defendant who is reportedly affected with jaundice has filed his counter in E.P. No. 12 of 2001 on 04.06.2001 and when the

Respondent/Plaintiff filed E.A. No. 27 of 2001 seeking police aid, at that time only, the Respondents/Defendants have projected I.A. No. 90 of

2002 belatedly on false reasons.

Even in E.A. No. 27 of 2001, the Defendant has filed the counter. Each and every days'' delay as required u/s 5 of the Limitation Act, has to be

explained, but the reasons assigned by the Respondents/Defendants in I.A. No. 90 of 2002 are not to be accepted either on law or on justice.

It is to be noted that the law prescribes an obligation on the persons seeking resuscitation of their action after the lapse of the period of

limitation to furnish the grounds justifying the condonation of delay. It cannot be gainsaid that it is for the applicants to make out a cogent and

convincing reasons/circumstances justifying such conclusion. The burden cannot be shifted on the other side who gains a valuable advantage by the

expiry of the period of limitation to let in proof of facts and circumstances showing negligence or want of good faith on the part of the individual

concerned.

This Court worth recalls the guidelines for the condonation of delay as per the decision in Hansaben Girishkumar v. Girishkumar Babulal Raja

reported in 1984(1) CLJ 367, at page 369 (Guj), and they are as follows:

(a) Ordinarily a litigant does not stand to benefit by lodging an appeal.

(b) Refusing to condone delay can result in a meritious matter being thrown out at the very threshold and cause of justice being defeated. As

against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(c) ""Every days delay must be condoned"" does not mean that a pedantic unpragmatic approach should be made. Why not every hour''s delay

every second''s delay? The doctrine must be applied in a rational common sense pragmatic matter.

(d) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the

other side cannot claim to have a vested right in injustice being done because of non-deliberate delay.

(e) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of other way mala fides. The

presumption would be just the round.

(f) It is unreasonable to adopt the approach of a school master using his rod to discipline the student. One need not bend backwards in such

matters. The attitude must be one informed with greatest awareness for the cause of justice.

(g) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of

removing injustice and expected to do so.

This Court aptly points out the decision of the Honorable Supreme Court in N. Balakrishnan Vs. M. Krishnamurthy, , whereby and here

under, it is laid down as follows:

A. Limitation Act, 1963 - Section 5 - condonation of delay -Discretion of Court - How to exercise - Guidelines stated - Words ""sufficient cause

should be construed liberally - Acceptability of explanation for the delay is the sole criterion, length of delay not relevant - In absence of anything

showing mala fide or deliberate delay as a dilatory tactic, Court should normally condone the delay -However, while doing so Court should also

keep in mind the consequent litigation expenses to be incurred by the opposite party and should compensate him accordingly - Where a Court

condones delay in positive exercise of discretion, superior Court and more particularly the revisional Court should not normally disturb the same -

But where request for condonation of delay is refused, it would be open to the superior Court to come to its own finding on the basis of

explanation for the delay given by the party - delay on the part of Defendant -Appellant of 883 days in approaching the Court against dismissal of

his application to set aside ex parte decree passed against him - Non-action on the part of his advocate explained as cause for the delay -

Appellant also complaining about conduct of the advocate before Consumer Forum and getting Rs. 50,000/- as compensation - Appellant''s

explanation for the delay accepted and delay condoned by trial Court -But in revision High Court setting aside the order of trial Court on ground

that Appellant was negligent and was not careful enough to meet the advocate to verify the stage of the proceedings for a long time - Held, High

Court in revision erred in interfering with the exercise of jurisdiction by trial Court in condoning the delay when Appellant''s conduct did not as a

whole warrant castigating him as an irresponsible litigant having regard to present busy and preoccupied life.

In the aforesaid decision, it is further observed thus:

Rules of limitation are not meant to destroy the rights of the parties and they are meant to see that the parties did not resort to dilatory tactics, but

seek their remedy promptly and the object of providing a legal remedy is to repair the damage caused by reason of legal injury.

This Court further cites the decision in M. Padmavathi v. C. Senthilvelan reported in 2005(2) CTC 275, wherein it is observed as follows:

...In the affidavit it is stated that all along she had been attending the Court without fail. However, according to her, her husband suffered a

severe heart ailment and she had to be with him in the hospital. Because of the said reason both herself and her husband could not attend the Court

on the said date i.e., 18.11.2002 and her counsel was also not informed about the same. The Respondent herein filed a counter statement disputing

the claim made by the Petitioner therein. On going through the reasons stated in the affidavit we are of the view that, though the Petitioner therein

had not produced the medical certificate in support of her claim, in view of her assertion that herself and her husband were attending Court for all

the previous hearings, there is no reason to reject the same. We are also satisfied that her statement seems to be a bona fide one and there is no

mala fide intention in abstaining the Court on 18.11.2002. This material aspect has not been considered by the Court below. We are satisfied that

the Petitioner therein-Appellant has made out a case for setting aside the ex parte decree and we are also satisfied that there was sufficient cause

for not attending to the Court proceedings on 18.11.2002.

Also, this Court seeks in aid the decision of the Honourable Supreme Court in Bharat Singh and Ors. v. Narender Kumar and Ors. reported in

(2004) 13 SCC 691, wherein it is held thus:

An ex parte decree for specific performance of an agreement to sell was set aside by the trial court. A perusal of the order of the trial court

shows that all the factors relevant for exercising discretion in favour of the applicant in the matter of condoning the delay in moving the application

and finding out sufficient cause for setting aside the decree were kept in view. The High Court has, however, in exercise of revisional jurisdiction

interfered with the order of the trial court which, in our opinion, within the limited jurisdiction available under 115 CPC should not have been done.

Ordinarily, a litigant should not be denied the liberty of contesting the case on merits.

Indeed, the existence of ""sufficient cause"" to the satisfaction of Court is the condition set for the Court to exercise its discretion in the matter of

condoning delay as per the decision of the Honourable Supreme Court in Ramlal, etc. v. Rewa Coalfields Ltd., reported in (1961) 2 SCC 556.

In the present case on hand, this Court is of the considered view that the attitude of a Court of law must be one informed with utmost

awareness for deliverance of substantial justice overriding technicalities. One cannot deny that a Court of law refusing to condone the delay may

result in a meritious matter being ejected out at the early stage, thereby defeating the cause of justice. By allowing a party to take part in the main

stream of legal proceedings by condoning the delay, then the cause of the parties will be decided on merits, of course, after hearing the parties.

Notwithstanding the fact that the first Respondent/first Defendant has filed his counter in E.P. No. 12 of 2001 on 04.06.2001 and later in

''police aid application'' filed on behalf of the revision Petitioner/Plaintiff before the Executing Court in E.A. No. 27 of 2001, a counter has been

filed, in I.A. No. 90 of 2002, in the affidavit filed by the third Defendant of behalf of the Respondents/Petitioners/Defendants, it is averred that the

first Petitioner/first Defendant who has been conducting the case, has been affected with jaundice and therefore, the Defendants 2 and 3 have not

been in a position to consult and to meet the Counsel at the appropriate time and to appear before the trial Court to file the written statement and

hence, an ex-parte decree has been passed on 08.10.1999. Therefore, to deliver substantial justice overriding technicalities, this Court by adopting

common sense, rational, pragmatic approach, does not find any illegality or perversity in the order of the trial Court while allowing I.A. No. 90 of

2002 by imposing the cost of Rs. 1,200/- (Rupees One Thousand and Two Hundred only) to be paid by the Respondents/Defendants 1 to 3 to

the revision Petitioner/Respondent/Plaintiff and viewed in that perspective, this Civil Revision Petition is devoid of merits.

In the result, this Civil Revision Petition is dismissed leaving the parties to bear their own costs. The Respondents/Petitioners/Defendants are

directed to pay a sum of Rs. 1,200/- (Rupees One Thousand and Two Hundred only) towards costs to the revision Petitioner/

Respondent/Plaintiff within a period of two weeks from the date of receipt of a copy of this order (if not already paid). On such payment is being

made, the Respondents/Defendants are directed to file their written statement within a period of two weeks there from. Thereafter, the trial Court

is directed to frame necessary issues in the main suit and to proceed further and in any event, dispose of the main suit within a period of three

months from the date of filing of the written statement by the Respondents/Defendants in accordance with law. Consequently, the connected

Miscellaneous Petition is dismissed.