Yanaimal Thottam Trust vs B. Jayaraman

S. Palanivelu, J.—The petitioner filed Suit in O.S. No. 372 of 1996 on the file of the District Munsif, Mannargudi for recovery of the

possession of the property from the respondent. After making appearance, the respondent filed a petition in C.T.O.P. No. 11 of 2006 u/s 9 of the

City Tenant Protection Act, for necessary relief. On 3.12.2001 the suit was decreed ex-parte on account of the absence of the defendant.

The respondent filed Interlocutory Application in I.A. No. 393 of 2004 u/s 5 of the Limitation Act to condone the delay of 945 days in filing the

application under Order 9 Rule 13 of C.P.C. Conditional Order was passed allowing the application on payment of cost of Rs. 3,000/- by the

respondent and on compliance of the condition, the petition was allowed.

Consequently, the petition to set aside Ex-parte Decree was taken on file in I.A. No. 577 of 2004 and after enquiry, the trial Court allowed the

application on payment of cost of Rs. 2,000/- by the respondent.

This petitioner in his affidavit filed along with application u/s 5 of the Limitation Act to condone the delay of 2028 days in filing the petition to

restore C.T.O.P. No. 11 of 1996 which was dismissed for default on 3.12.2001, has averred that along with the petition to set aside the exparte

decree, he filed a memo requesting the Court to restore the C.T.O.P. No. 11 of 1996 to file was kept, without passing any order by the Court,

while the petition in I.A. No. 577 of 2004 was disposed of and hence the delay in filing the present application for restoration may be condoned.

The said application filed u/s 5 of the Limitation Act was numbered as I.A. No. 4 of 2007.

In the Counter filed by the petitioner, the claim of the respondent was controverted by stating that no sufficient cause has been pleaded in the

affidavit which is absent on the part of the respondent and that he had not approached the Court with clean hands. It is further stated that the

respondent is in the habit of keeping himself absent and filing applications u/s 5 of the Limitation Act one by one. The petition is devoid of merits.

Learned District Munsif has condoned the delay by observing that in the decisions of this Court, it has been held that liberal approach has to be

adopted in the matter of condoning the delay, considering the relative hardship of the parties and the loss of time. A conditional order was passed

allowing the petition on payment of Rs. 1,500/- by the Respondent. That is the Order, being challenged before this Court.

Mr.G. Vivekanand, learned Counsel for the petitioner would vehemently contend that there could be no justification on the part of the Court

below to allow the application without any sufficient cause being pleaded in the affidavit and that the plea of inadvertence on the part of the

respondent in not filing petition to restore the C.T.O.P. No. 11 of 1996 which was dismissed for default and that the respondent cannot blame the

trial Court by stating that no order was passed on his memo for such restoration.

Conversely, Mr. V. Bharathidasan, learned Counsel for the respondent would submit that inasmuch as the respondent had already filed a memo

for restoration of C.T.O.P. No. 11 of 1996, which had been among the records and in the absence of pending any orders being passed on the

memo, the rights of the respondent are not affected and that by inadvertence no petition was filed before the Court in time to restore the C.T.O.P.

Learned Counsel for the petitioner, in support of his contention placed much reliance upon the decision of Supreme Court reported in Ramlal,

Motilal and Chhotelal Vs. Rewa Coalfields Ltd., wherein their Lordships have observed as follows:

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of

limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In

other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the

decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed.

The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone

delay and admit the appeal.

In Muthusamy Vs. Indian Overseas Bank, this Court has followed the decision of the Supreme Court in Binod Bihari Singh Vs. Union of India,

, in which the Apex Court held that when the party has come with a false plea to get rid of the bar of limitation, the Court should not encourage

such person by condoning the delay.

The very same decision has been referred and followed by the subsequent decision of the Division Bench of this Court in Gulf Air Company

Vs. V.M. Rajalingam, Sole Proprietor `Bharathi Knitting Company'', .

While the principles laid down by the Supreme Court are followed, it has to be observed that if under the guise of seeking relief for excusing

delay on flimsy grounds, the other party should not be deprived of his right which he accrues by passage of time. In other words, if a party to the

proceedings got benefited by means of a valid order of the Court, he cannot be stripped-off his right which accrued to him by the existing statues

or legislations, the request of the other party cannot be heeded to.

Learned Counsel for the respondent would garner support from the decision of the Supreme Court reported in N. Balakrishnan Vs. M.

Krishnamurthy, in which it is held that with the delay is properly explained, then the length of delay is immaterial and the term ""sufficient cause

should receive liberal construction to advance substantial justice and explanation for delay should receive utmost consideration if such explanation

does not smack of mala fides or is not part of dilatory tactics and that delay occasioned by the party deliberately to gain time should not be

accepted by Court.

In T. Alamelu Ammal Vs. Mangalakshmi, this Court has held that inasmuch as the Court below has exercised its discretion, normally the

revision Court should not disturb such finding unless the exercise of discretion was on wholly untenable grounds, arbitrary and frivolous. Inasmuch

as the delay has been sufficiently explained and rightly condoned, even on merits, there is no case of interference. The same view has been echoed

by this Court in 2006 (3) CTC 484 [Danial Textiles v. State Bank of Travancore, Palliyadi Branch].

In order to take recourse to the benefit of the above said principles, the party who seeks the relief of condonation of delay should show that he

has assigned sufficient cause in his affidavit which shall be satisfactorily explained before the Court and that the exercise of discretion by the Court

below is not on untenable grounds. As far as the first part of the above said principle is concerned, significantly the affidavit does not contain any

sufficient reason for the delay in filing the application. It has been merely mentioned that a memo of restoration was filed but it was kept among the

records without passing any order and it is described that inadvertently petition for restoration was not filed. Copy of the restoration application

has not been produced by the respondent before this Court and the contents in the said memo could not have been solemn statements.

In these circumstances, it has to be necessarily observed that the affidavit is bereft of any reason or any explanation for the delay. There is no

opportunity for the Court to apply its mind as to the fact whether the delay has been sufficiently and satisfactorily explained before it.

The next question is with reference to the exercise of jurisdiction by the Court below. As for this aspect, the order impugned is silent in the

matter of recording of its satisfaction as to the reason assigned in the affidavit. The reasons adduced by the Court below for allowing the

application are not at all sustainable for the reason that they are not based on reasonings. In other words, it could be held that allowing an

application, which did not contain any reason or explanation for the delay, could not get the seal of approval by the Court. In such view of this

matter, this Court could not justify the order challenged.

For the foregoing reasons, the respondent cannot take umbrage under the decisions of this Court aforesaid. There is no doubt true that this

Court under the revisional jurisdiction, should not disturb the finding. However, the order impugned shall itself get qualified to pass the test that is to

say, the discretion was not exercised by the Court below on untenable ground. In the case on hand, in view of the absence of any sufficient cause

in the affidavit, the petition cannot be allowed.

Following the principles laid down by the Supreme Court, it is held that the order of the Court below suffers from infirmity which deserves to

be set aside and accordingly, it is set aside.

In fine, the Civil Revision Petition is allowed. No costs. Connected Miscellaneous Petition is closed.