T.R. Thulkarunai vs Babiammal

S. Palanivelu, J.—The allegations contained in the affidavit filed in I.A. No. 18055 of 2007 by this petitioner are as follows:

The respondent filed suit for recovery of money against this petitioner and the suit is not maintainable. This petitioner filed application under Order

37 Rule 1 & 2 C.P.C. to permit him to defend the suit by granting unconditional leave for which the respondent also filed counter and the same

was pending for enquiry. During last week of January 2007, the re-elections for Chennai Corporation were announced. The petitioner belongs to

Congress Party and the party High Command instructed him to work for the candidates those who contested the elections. Hence he was unable

to contact and instruct his counsel to argue in I.A. No. 19796 of 2006. On 18.02.2007 election was held and results were announced on

20.02.2007. After the election, he was affected with some food poison and somehow he recovered and contacted his counsel and shocked to

hear the fact that on 28.02.2007 itself the petition was dismissed for default for his non-appearance. The said absence was neither willful nor

wanton. Hence, the delay of 191 days of filing the application to restore the I.A. No. 19796 of 2006 to file may be condoned.

In the counter filed by the respondent it is stated as follows:

In the I.A. No. 19796 of 2006, the respondent filed her counter on 19.12.2006 and the matter was posted for enquiry on 09.01.2007,

23.01.2007 and finally on 13.02.2007 for enquiry. Subsequently, the petitioner changed his counsel and filed change of vakalat on 22.02.2007.

The averments contained in the affidavit are not true. He has failed to explain each and every day delay. It is an attempt to influence fear in the mind

of the plaintiff, who is a helpless widow and Senior Citizen, to the effect that he is a politically powerful person. His intention is only to protract the

proceedings. He has no valid defence. The petition is not maintainable in law. Hence, it is to be dismissed.

Learned III Additional Judge, City Civil Court, Chennai, after the enquiry, dismissed the petition, refusing to condone the delay and the said

order is under challenge before this Court.

Learned Counsel for the petitioner would submit that inasmuch as the affidavit contains sufficient and convincing reasons for the delay, under the

settled principles of law, the Court below should have condoned the delay and the dismissal of the petition is not sustainable.

Conversely, learned Counsel for the respondent would contend that the petitioner has miserably failed to adduce any satisfactory cause in the

affidavit, that the allegations therein stand unestablished and there is nothing wrong in the order passed by the trial Court.

The respondent has filed suit in O.S. No. 3690 of 2006 for recovery of a sum of Rs. 5,16,000/- on the strength of promissory note executed by

this petitioner. This petitioner filed I.A. No. 19796 of 2006 under Order 37, Rule 1 & 2 of C.P.C for permission to defend the suit by grant of

unconditional leave. The said petition was being resisted by the respondent by filing her counter. While the petition was posted for enquiry on

28.02.2007, he was called absent and the petition was dismissed for default. The order on notes paper goes to the effect that ""Petitioner called

absent in the forenoon and afternoon. No representation for the petitioner in the forenoon and afternoon at 3.25 p.m. This petition is dismissed for

default.

The contention of the petition consists of two parts. Earlier, in view of Chennai Corporation re-elections for certain wards, he could not

concentrate on the Court proceedings since, being an important person in Congress party, the party High Command directed him to work for the

contesting candidates in the election and accordingly he attended the election works and secondly, after the elections were over, his health was

affected due to food poison and hence the delay. The Court below has observed that inspite of granting adjournments on various dates as per the

wishes of this petitioner, he did not come forward to be ready on 28.02.2007 and on that date his absent resulted in the dismissal of the petition. It

has also taken into consideration that there had been sufficient opportunities for him to contact his advocate over mobile phone and he has failed to

get information from his advocate as to the date of hearing. It is also observed that the respondent being an old lady, aged about 74 years, is being

harassed by this petitioner by delaying the proceedings and there is no possibility for such an aged person to kidnap this petitioner, aged about 44

years and to obtain signatures in pro-note by force.

Neither of the parties has entered into the witness box. The matter is governed by the averments in the affidavit and counter alone. As far as the

first part is concerned, the Court below obtained some satisfaction as to the attitude on the part of this petitioner. But as for the second part, i.e.,

the period after the elections, it was not convinced and of the opinion that the reasons furnished are not sufficient and satisfactory. It is the main

stress that the petitioner was affected by food poison that has obstructed him from contacting his advocate. In like cases, the Court is expected to

apply its mind as to the allegations in the affidavit and to see whether they contain proper explanation for delay and whether it would satisfy the

expectations of the Court.

In this context, learned Counsel for the petitioner draws attention of the Court to a decision reported in N. Balakrishnan Vs. M. Krishnamurthy,

, wherein Their Lordships have observed that it is axiomatic that condonation of delay is a matter of discretion of the Court, Section 5 of the

Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit, that length of delay is no matter,

acceptability of the explanation is the only criterion and when the court below has exercised his discretion in condoning the delay accepting the

explanation as sufficient, the superior Court should not disturb such finding, but when the court below refused to condone the delay, the superior

Court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even

untrammeled by the conclusion of the lower Court. The Apex Court has also held as follows:

It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to

turn down his plea and to shut the door against him. If the explanation does not smack of 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 lean against acceptance of the explanation. While condoning delay the Court should not

forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It

would be a salutary guideline that when Courts condone the delay due to latches on the part of the applicant, the Court shall compensate the

opposite party for his loss.

For the identical principle, learned Counsel for the petitioner also relies upon a decision of the Supreme Court in SLP (Crl.). No. 131 of 2006

dated 12.08.2008. State (NCT of Delhi) v. Ahmed Jaan.

Following the dictum laid down by the Supreme Court in the decisions aforestated, bearing the explanation in the affidavit in mind, this Court is

of the considered view that the delay has been properly explained before this Court satisfactorily. The petitioner has stated about his bad health

due to food poison and he did not assign any reason for the delay. It may also be observed that he might have furnished even some other reasons,

producing certain medical certificates, but he has not done so. In the considered view of this Court, the affidavit contains ""sufficient cause"" for the

Court to condone the delay and for the inconvenience caused to the other side it has to be adequately compensated in terms of money. This Court

quantifies such terms at Rs. 3,000/- (Rupees three thousand only) which is payable by the petitioner to the respondent.

In the result, the Civil Miscellaneous Appeal is allowed on payment of cost of Rs. 3,000/- (Rupees three thousand only) by the petitioner either

to the respondent or to the learned Counsel for the respondent before this Court of before the Court below on or before 09.03.2009, in default,

the petition shall stand automatically dismissed without further reference to the Court. The deposit of Rs. 3,31,627/- in pursuance of the order of

this Court dated 21.7.2008 shall be kept as such in the deposit until further orders.