Venkatesa Chettiar vs Valli Ammal

K. Kalyanasundaram, J.—Challenging the order passed by the Principal District Judge, Villupuram, in I.A.No. 569 of 2010 in I.A.No. 25 of 2004 in O.S.No. 42 of 2004, dated 7.11.2012, this revision has been filed.

Brief facts of the case would run thus:

(a) The respondent had filed the suit in O.S.No. 42 of 2004 for partition and separate possession of her share in the suit properties. Admittedly the petitioner did not choose to contest the suit and a preliminary decree was passed on 24.1.2002. The plaintiff filed I.A.No. 701 of 2003 for passing the final decree. The petitioner was the fifth respondent in the final decree application. The District Judge, Villupuram, after hearing the counsel on both sides, appointed an Advocate Commissioner to divide the properties as per the preliminary decree. On 7.9.2009, the Advocate Commissioner has filed his report with a plan. On the basis of the Commissioner''s report, the learned Principal District Judge, Villupuram, passed the final decree on 9.6.2009.

(b) The respondent filed E.P.No. 7 of 2010 for delivery of possession. The petitioner, who was arrayed as 5th respondent in the Execution Petition, received notice in the Execution proceedings and entered appearance through his counsel Mr.R.Seshadri on 20.7.2010. On 27.7.2010, the Executing Court heard the arguments of the counsel on either side and passed orders on 9.08.2010. On the basis of the order, the respondent has taken possession of her property on 14.8.2010.

(c) Subsequently, on 13.9.2010 the petitioner filed I.A.No. 569 of 2010 to condone the delay of 453 days in filing the application to set side the final decree. The petitioner has alleged that he received notice in the final decree application and also engaged a counsel, but thereafter, owing to circumstances beyond his control, he could not meet his counsel to instruct him to defend the case. It is further alleged that he was suffering from illness and was taking treatment; his wife had hyper tension and blood pressure, for which she was also taking treatment. The petitioner sought condonation of delay on the above grounds. The application was resisted by the respondent by filing detailed counter. The Executing Court dismissed the application. Aggrieved by the order, the present revision is filed.

Heard Mrs.Hema Sampath, learned Senior counsel for the petitioner and Mr.N.R.Chandran, learned Senior counsel appearing for the respondent and perused the records.

Learned Senior counsel for the petitioner submitted that while considering the application for condonation of delay, the Court has to adopt a liberal approach. The learned Senior counsel has relied upon the judgments of the Hon''ble Apex Court reported in (i) State of Haryana Vs. Chandra Mani and others, and (ii) M.K. Prasad Vs. P. Arumogam, .

Learned Senior counsel for the respondent made his submissions supporting the order passed by the lower Court. He would reply upon the judgment of the Honourable Apex reported in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, .

It is seen from the records that in the affidavit filed in support of the condone delay application, the petitioner had admitted that he did not contest the suit and an ex-parte decree was passed, which has become final. It is further admitted by the petitioner that in the final decree application also he received notice and also engaged an advocate. It is further noted that the Advocate Commissioner was appointed on 7.1.2009 and on the basis of his report, final decree was passed on 9.6.2009. The petitioner filed counter in the Execution Petition on 20.07.2010. The learned counsel for the petitioner has also argued the case on 27.7.2010. The learned Principal District Judge, Villupuram, after hearing the counsel for the petitioner has passed order in the Execution Petition on 9.8.2010 and physical possession was delivered to the respondent on 14.08.2010. The petitioner, who was aware of the entire proceedings had chosen to file this application only on 13.09.2010. The petitioner, who was actively participating in the final decree proceedings and in the Execution Proceedings, cannot be permitted to contend that due to his illness there was a delay in filing the application. On the other hand, the records would show that the petitioner has pleaded falsehood in the affidavit.

In Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, , the Honourable Apex Court has laid down the principles while considering the application for condonation of delay as under:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms ''sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The Concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of Prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and he said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of Law of Limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

In the above judgment, the Hon''ble Supreme Court has held that while considering the petition for condonation of delay, the conduct of the party and the length of delay have also to be taken into consideration, in the case of inordinate delay.

In the case on hand, the learned Principal District Judge, Villupuram, has considered the oral evidence of P.Ws 1 and 2 and the documents marked on behalf of the petitioner and dismissed the application holding that due to the conduct of the petitioner, the respondent has been made to suffer and imposed a cost of Rs.5000/-. The conduct of the petitioner shows that he has filed an application to drag on the proceedings and he has not shown sufficient cause for condoning the delay. I do not find any illegality or irregularity in the order under challenge.

In the result, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.