V. Amudha vs S. A. Arumugham and Others

S. S. Subramani, J.—First plaintiff in O.S.No. 552 of 1989 on the file of the I Additional District Munsif, Erode is the revision petitioner.

The above suit was filed to declare that the plaintiffs are the absolute owners of the suit properties and the defendants do not have any right to

create encumbrance over the same.

I do not want to go into the merits of the case, since the revision petition is against an order condoning the delay of 2569 days in I.A.No. 1470

of 1997. The above suit filed by the plaintiffs was decreed and the defendants were set ex parte and an application was filed to have the ex parte

decree set aside. There is a delay of nearly 2600 days and the same was sought to be explained by filing the said application. In the affidavit filed in

support of the said application, it is stated that the first respondent herein engaged the counsel on 14.6.1989, but thereafter, he met with an

accident and fell ill and continued to be bed ridden till 5.9.1997. He further averred that he was under medical advice and under complete rest and

not to move about of his residence. It is further averred that the plaintiffs approached an Ex.M.L.A to settle the matter and through him, he came to

know that the ex parte decree was passed on 27.7.1990. It is only because of his illness, he could not file an application earlier and also he did not

have the knowledge of the ex parte decree. A detailed counter has been filed on behalf of the petitioners herein. For the purpose of the said

application, the petitioners as well as respondents were examined. After considering the evidence, the lower court held that interests of justice

require that the ex parte decree should be set aside. For the said purpose, the lower court had also taken note of the statement of the plaintiffs

wherein the first plaintiff said that she has no objection in setting aside the ex parte decree. The lower court awarded costs of Rs. 1,000 to the

plaintiffs, while allowing the said application with a further direction that if the said sum is not paid on or before 15.10.1998, the said application

shall stand dismissed. The said order is challenged in this revision petition.

Heard both sides.

In a recent decision of the Supreme Court reported in the case of Mahabir Prasad Singh Vs. M/s. Jacks Aviation Private Ltd., , in paragraph 11

of the judgment, their Lordships held that even if an order passed by the subordinate court has any illegality or is affected by material irregularity,

the High Court will not interfere unless the said order, if allowed to stand, would occasion a failure of justice or its effect would be infliction of

irreparable injury to any party.

In N. Balakrishnan Vs. M. Krishnamurthy, , their Lordships considered this question in detail. In paragraph 13 of the judgment, it was held thus:

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 the 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 large litigation expenses. It would be

a salutary guideline that when courts condone the delay due to laches on the part of the part of the applicant, the court shall compensate the

opposite party for his loss.

In the earlier portion of the judgment, their Lordships held that the condonation of delay is a matter of discretion of the court and Section 5 of the

Limitation Act does not say that such discretion can be exercised only if the delay is within the certain limit. It has been further held thus:

Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due

to want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is

satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court

should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or

perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, 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.

Thereafter, their Lordships summarized the principles, which read thus:

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for

approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of

limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy

promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for

such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time,

newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each

remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus

founded on public policy. It is enshrined in the maxim interest republicate up sit finis litium (it is for the general welfare that a period be put to

litigation) Rules of limitation are not meant to destroy tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive

for a legislatively fixed period of time.

A court knows that refusal to condone 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. This Court has held that the words ''sufficient cause'' u/s 5 of the Limitation Act should receive a liberal

construction so as to advance substantial justice vide: Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and State of W.B. v. Administrator,

Howrach Municipality.

While exercising the discretion, the lower court held that the petitioner herein, while she was examined, has said that she has no objection in

setting aside the ex parte decree. I wanted a copy of the deposition to produce before court and the petitioner produced it. In the cross

examination, on 14.9.1998, the first plaintiff has stated thus:

Apart from this, the lower court also has taken into consideration that the interests of justice require that the delay must be condoned. A

discretion was exercised by the lower court on application of mind. Unless the petitioner shows that they are put to manifest injustice or hardship,

the discretion exercised by the lower court is not liable to be revised by this Court. When the petitioner herself has no objection in restoring the

suit, she cannot even complain that a wrongful order was passed by the lower court. In spite, of the said statement by the first plaintiff, the lower

court ordered a cost of Rs. 1,000 to her. The lower court has taken into consideration the interests of justice and the rights of the parties were also

protected.

In the result, I do not find any in this revision petition and accordingly, the same is dismissed. No costs.