Subramaniya Udayar vs Lakshmibai

Prabha Sridevan, J.—This revision has been filed by the first defendant against the order refusing to set aside the ex parte decree. The

respondent and another who died pending the suit filed O.S. No. 623 of 1986 before the District Munsif, Mettur for the relief of declaration and

recovery of possession. Though other defendants were made party to the suit, from the plaint averments it is seen that they are only proforma

parties ;the relief actually sought is against the petitioner herein. The suit was originally filed before the District Munsif, Mettur. It was subsequently

transferred to the District Munsif, Omalur where it was taken on file as O.S. No. 12 of 1996. The petitioner was set ex parte on 02.06.1998. He

filed an application with a delay of 97 days, but without an application u/s 5, Limitation Act. The learned District Munsif, Omalur refused to set

aside the ex parte decree and on appeal this order was confirmed by the learned Subordinate Judge, Mettur, against which this revision has been

filed. The learned Counsel for the petitioner is aggrieved on two counts. He would submit that one of the reasons for dismissing his application is

that the petition was not accompanied by an application u/s 5 of the Limitation Act. He would submit that the insistence of a formal application u/s

5 of the Limitation Act would be a over-pedantic, hyper-technical approach which would defeat the cause of justice and for this preposition, he

relied on the decisions reported in Meghraj v. Jesraj Kasturjee, AIR 1975 Mad. 137 = 87 L.W. 863 and T. Balasundaram v. R. Palaniswamy,

1996 T.L.N.J. 49, wherein this Court has held that a written application for condonation of delay is not necessary and the Court should adopt a

liberal approach and give reasonable opportunity to the party to mend matters in order to avoid miscarriage of justice. The other ground raised by

the learned Counsel for the petitioner is that the Courts below ought to have accepted the reason given by the petitioner for not being present on

the relevant dates of hearing and that ultimately the cause of justice should not suffer and for this he relied on Collector, Land Acquisition,

Anantnag v. Katiji, AIR 1987 S.C. 1353 = 100 L.W. 676, where again the Supreme Court stressed the necessity for Courts to adopt a liberal

approach which will be guided by the fact that normally a litigant would not stand to benefit by approaching the Court belatedly; refusing to

condone the delay may result in a meritorious matter thrown out at the threshold; and explanation of delay should be considered in a pragmatic

manner; and substantial justice and technical considerations when pitted against each other the former should be preferred; and ultimately Courts

should exercise their power not to legalize injustice but to remove injustice.

In the decisions relied on by the learned Counsel for the petitioner where this Court has considered whether a written application for

condonation of delay is necessary, it is clearly laid down that under explainable circumstances, appeal or application when filed in Court without a

formal petition for condoning the delay, the Court may entertain the same and give opportunity to the aggrieved party to mend matters. If this had

been the only ground for dismissing the petition, the petitioner may have had a stronger case in this revision. But a perusal of the orders of both the

Courts would show that while no(sic)ing the absence of a formal application they have also considered in detail the adequacy of the explanation

given by the petitioner for his absence on the relevant date and for his approach belatedly. In the affidavit filed in support of the petition this is what

the petitioner has stated:

Therefore, according to the petitioner he did not get any information properly after the suit had been transferred to the District Munsif, Omalur and

got a letter from his lawyer regarding the passing of the ex parte decree just two days prior to the filing of the application. The Appellate Court has

clearly considered this and has come to the conclusion that it is not as if the petitioner was not aware of the transfer to the Omalur Court. The

Courts below have not believed the petitioner''s case that while he did not receive earlier letters from his lawyer informing him of the progress of

the suit before the District Munsif, Omalur. He received just that letter which informed him of the passing of the ex parte decree. In fact, in the

affidavit, the petitioner does not even state that he did not receive any letter from his Counsel, while it was pending before the said Court. A vague

averment that the correspondence from the lawyer was not properly received is made and the petitioner expects the Court to allow him to mend

matters in the interest of justice. In the decision reported in 1996 T.L.N.J. 49 (cited supra) this Court has cited the reasons set down in the other

decision which is also been cited here and reported in AIR 1987 S.C. 1353 = 100 L.W. 676 (cited supra):

And such a liberal approach is adopted on principle as it is realized that:-

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

Refusing to condone delay can result in a meritorious matter being through 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.

Every day''s the 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.

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.

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 restoring to delay. In fact he runs a serious risk.

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.

The orders of the Courts below does not show that the Courts below have adopted a pedantic or technical approach. The Courts below have

clearly come to the conclusion that substantial cause has not been given by the petitioner for his absence and his belated approach and in fact, the

Court has not believed the case put forth by him that he did not have proper communication from the lawyer of the prior dates of hearing. The

Supreme Court has repeatedly held as in N. Balakrishnan v. M. Krishnamurthy, 1998 (7) S.C.C. 123, that it is not the length of delay which is the

criterion but the adequacy of explanation. The discretion exercised by the Courts below does not seem to be illegal or perverse. In these

circumstances, I do not want to interfere with the impugned order. The Civil Revision Petition is therefore dismissed. The connected C.M.P. is also

dismissed.