Velu Nambiar vs Muththammal

G. Chockalingam, J.—1. This civil revision is filed against the fair and decreetal order dated 08.11.2004 and made in I.A. No. 1472 of 2003 in O.S. No. 140 of 2001 on the file of the Principal District Munsif Court, Ambasamudram, dismissing the application filed by the petitioner under section 5 of the Limitation Act to condone the delay of 708 days in filing the petition to set aside the ex-parte decree, dated 12.10.2001.

Heard the learned counsel appearing for the petitioner and perused the materials available on record. On the side of the respondent, no body has been appeared, even though the respondent''s name is printed in the cause list.

The learned counsel appearing for the petitioner would contend that the suit in O.S. No. 140 of 2001 was filed by the respondent/plaintiff before the Principal District Munsif Court, Ambasamudram. The said suit was posted on 12.10.2001. Since, on 12.10.2001, the petitioner along with family members went to Chennai to attend the condolence of their relative, he was not able to attend the Court and met his counsel. Hence, the trial Court passed the ex-parte decree. Thereafter, the petitioner filed an application in I.A.1472 of 2003 in O.S. No. 140 of 2001 before the trial Court to condone the delay of 708 days in filing the application to set aside the ex-parte decree passed on 12.10.2001.

The learned counsel has further contended that the petitioner has affected with Typhoid and after his return from Chennai, he was bed ridden for 6 months. Hence, he was not able to appear before the Court concerned and that the delay caused in filing the application to set aside the ex-parte decree is neither wilful nor wanton. The learned counsel has also contended that the petitioner is ready to compensate the respondent/plaintiff by way of cost. In support of his contention, he has relied upon the following two decisions:-

(a)., (1998)7 SCC 123 [N.Balakrishnan Vs M.Krishnamurthy], wherein, the Honourable Apex Court has held as follows:-

"11. In this case, it is true that there has been a delay of 185 days in filing the application in I.A. No. 632 of 2005 in filing the application to set aside the ex-parte decree. In the light of the aforesaid decisions as well as the law laid down by the apex court in its various decisions relating to condonation of delay, the words ''''Sufficient Cause'''' found in section 5 of the Limitation Act, 1963, should receive a liberal construction so as to advance substantial justice and while giving opportunity to the revision petitioner, the right accrued to the respondent is also to be kept in view and balance has to be struck and has to be applied. In the present case, it is found that consequent to the order passed in the Execution Petition, the respondents had taken delivery of the suit property on 06.01.2006.

In view of the above circumstances, this court finds it appropriate to pass an order directing the learned Principal District Munsif court, Coimbatore to allow I.A. No. 632 of 2005 filed by the petitioner to condone the delay of 185 days in filing the application to set aside the ex-parte decree, dated 13.04.2005, on the petitioners making a payment of Rs.5000 to the respondents as costs within two weeks from the date of receipt of a copy of this order. On such proof being shown to the satisfaction of this court, the suit in O.S. No. 2209 of 1993 may be taken on file and decided on merits, in accordance with law, within a period of four months thereafter."

(b). 2006 (2) CTC [Syed Nusarathulla Vs Natarajan and others], wherein the Hon''ble Apex court has held as follows:-

"10. The reason for such a different stance is 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. The 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 reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

It is seen from the records that originally, the suit in O.S. No. 140 of 2001 was filed by the respondent/plaintiff before the Principal District Munsif, Ambasamudram for recovery of money against the defendant and an ex-parte decree was passed on 12.10.2001. Thereafter, the petitioner/defendant filed I.A. No. 1472 of 2003 in O.S. No. 140 of 2001 to condone the delay of 708 days in filing the petition to set aside the ex-parte decree passed on 12.10.2001, which was dismissed by the trial Court on 08.11.2004. Against which, this civil revision petition is filed.

In this case, in order to prove the case on the side of the petitioner, the petitioner/defendant has examined himself as PW1. In his chief examination, he has deposed that as he went to Chennai along with his family members to attend the condolence of his relative, he was not able to attend the Court on 12.10.2001. On that date, ex-parte decree has been passed. Thereafter, as he has affected with Typhoid decease, he was bed ridden for 6 months. He further deposed that he came to know about the dismissal of the suit only after receiving notice in the execution proceedings. But on the side of the respondent, no materials were produced to disbelieve the case of the petitioner.

Keeping in view of the above facts, this court is of considered view that even though, there was a delay of 708 days in filing the application to set aside the ex-part decree, the delay caused in filing section 5 application has to be condoned on payment of costs.

In view of above facts and the law laid down in the decisions relied upon by the learned counsel for the petitioner, this court finds that the impugned order, dated 12.10.2001 is liable to be set aside and the civil revision has to be allowed on payment of cost.

In the result, this civil revision petition is allowed on deposit of cost of Rs.5,000/- [Rupees Five thousand only] to be deposited by the revision petitioners before this court on or before 21.03.2016, failing which CRP shall stand dismissed. The successful party in the main suit is entitled to the said amount. Consequently, connected Miscellaneous Petition is closed.

Post the matter on 22.03.2016 for reporting compliance.