Shanmuga Sadachara Servai vs Thirugnanam Servai and Another

M. Karpagavinayagam, J.—Shanmugha Sadachara Servai, the petitioner herein is the plaintiff in O.S. No. 31 of 1989 on the file of District

Munsif, Kovilpatti. He filed the suit for declaration of title and permanent injunction. After trial, the said suit was dismissed. Though he instructed

his lawyer to file an appeal after getting the copies of the judgment and decree, the copy application was not filed in time. Therefore, he engaged

some other Lawyer to whom he instructed to file an appeal. In the process of filing the appeal, there was a delay of 94 days. Therefore, the

petitioner filed an application in I.A. No. 530 of 1991 to condone the said delay u/s 5 of the Limitation Act. The petitioner examined himself as P.

W. 1 in the enquiry conducted on this application. The reasons for causing the delay of 94 days were given by P. W. 1 in the deposition. He was

also cross-examined. After consideration of the materials and submissions of the counsel for both the parties, the court of Subordinate Judge,

Tuticorin dismissed the petition on the ground that the details of the dates have not been clearly given either in the petition or in the deposition. This

order is being challenged in this revision.

According to the petitioner, after the judgment dated 31.1.1991 was passed by the trial court dismissing the suit, he instructed his erstwhile

counsel Mr. Umasankar to apply for the copies of the judgment and decree to file an appeal. But, he was advised to wait for two months so that

he could get the copies of the judgment and decree and file an appeal. When he met the Lawyer after two months, he informed that he did not file

the copy application in time. Therefore, he approached one Mr. Thangaraj, another lawyer, who in turn filed an application for copies and obtained

the same. Thereafter, the application to condone the delay was filed.

Mr. Hanumantha Rao, the counsel appearing for the respondents, in justification of the impugned order, would vehemently oppose this petition

by contending that the words ""sufficient cause"" would denote that the court concerned shall consider the sufficiency and reasonableness of the

grounds and in the name of liberal approach the real purport and meaning of the words ""sufficient cause"" cannot be diluted.

On perusal of the records, it is seen that though the details of the dates have not been given in the deposition given by P.W. 1, the petitioner, it is

mentioned in the petition that he waited for two months subsequent to the date of the decree and thereafter, when he was informed that no copy

application was filed, he instructed the counsel Mr. Thangaraj to file a copy application, who in turn filed on 29.4.1991 and obtained the copies on

3.5.1991. It is also mentioned in the petition that the court remained closed due to summer holidays from 4.5.1991 and was reopened only on

10.6.1991 on which date the application to condone delay was filed. Therefore, it cannot be said that the details regarding the dates have not been

given by the petitioner. Moreover, it is clearly stated that due to the fault of Advocate, the delay was caused. Therefore, as held by the Supreme

Court, the party should not suffer merely because of the Advoate''s default.

The following guidelines have been given by the Apex Court in the decision in Collector, Land Acquisition, Anantnag and Another Vs. Mst.

Katiji and Others, by stressing importance to adopt liberal approach in entertaining the application for condoning the delay u/s 5 of the Limitation

Act:

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

(2) Refusing to condone delay can result in a meritorious 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.

(3) ""Every day''s delay must be explained"" does not mean that a pedantic 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 manner.

(4) 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 vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does

not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) 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 is expected to do so.

It is settled law that the discretion vested in the court in the matter of dealing with the application filed u/s 5 of the Limitation Act is to be

exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood. The words ""sufficient

cause"" receives a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the

appellant.

So, in the light of the above principles as laid down in Shakuntala Devi Jain Vs. Kuntal Kumari and Others, , in the instant case, it cannot be said

that the delay was caused due to want of bona fides on the part of the applicant.

In the absence of any materials to hold that there was negligence or mala fide or deliberate intention, it cannot be presumed that the delay was

occasioned on account of negligence or mala fide. As pointed out by the Apex Court, the judicial forums are respected not on account of their

power to legalize injustice on technical grounds, but they are respected because they are capable of removing injustice without giving undue

importance to the proposition ""every day''s delay must be explained.

Therefore, in the facts and circumstances of the instant case, I am of the view that the delay has been properly explained by the petitioner not

only by filing an affidavit but also by examining himself as P.W.1, who subjected to cross-examination as well. Under these circumstances, the

petition has to be allowed.

However, in the circumstances of the case, the petition is allowed on terms, especially when it is brought to my notice that after a lapse of 9

years, the defendants/respondents herein have to face the appeal proceedings. Therefore, the petitioner is directed to pay costs of Rs. 1,000 to the

counsel appearing for the respondents within four weeks from today.