Thangavel v. Subash

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.01.2008CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.R.P.(NPD).No.1810 of 2004andC.M.P.No.13645 of 2004Thangavel... Petitioner/DefendantVs.Subash... Respondent/PlaintiffPrayer: Petition filed under Section 115 of the Code of CivilProcedure, against the order and decreetal order dated24.11.2003 made in I.A.No.269 of 2003 in O.S.No.36 of 1999 onthe file of the Sub Court, Cheyyar, Thiruvannamalai District.For Petitioner: Mr.S.UmapathyFor Respondent: Mr.V.Meenakshi SundaramO R D E RThe civil revision petitioner is the defendant inO.S.No.36 of 1999 on the file of the Sub Court, Cheyyar,Thiruvannamalai District.2.The revision petitioner/applicant/defendant has filed anI.A.No.269 of 2003 in O.S.No.36 of 1999 under Section 5 of theLimitation Act praying to condone the delay of 460 days insetting aside the exparte decree dated 11.03.2002. In theapplication filed by the civil revision petitioner/applicant inI.A.No.269 of 2003, the applicant has inter alia averred that,during August Amin from Court giving summons directing him toappear in Court on 05.09.2002 and that the next day, he went toBangalore for eking his livelihood and he suffered jaundice andtook native treatment and that the said treatment continued andthat after meeting his counsel, he came to know that the matterwas posted to 11.02.2002 and thereafter, an exparte decree waspassed and therefore, he could not file an application in timeand there was a delay of 460 days in filing the application tocondone the delay. https://hcservices.ecourts.gov.in/hcservices/

3. The respondent/plaintiff in the counter has taken aspecific plea that on 11.03.2002, an exparte order was passedand till 05.09.2002, the petitioner was in station and there isno explanation on the side of the civil revision petitioner asto why he could not appear during the period from 11.03.2002till 05.09.2002 and therefore, the application is false and notmaintainable in law.4.The learned Subordinate Judge, Cheyyar has dismissedI.A.No.269 of 2003 without costs on 24.11.2003 inter aliaobserving for each and every days delay under Section 5 of theLimitation Act and explanation has to be furnished and that thereasons assigned by the revision petitioner/applicant in hisapplication are not acceptable etc.5.No doubt the revision petitioner/applicant has notproduced any evidence to show that he suffered from jaundice.It transpires that as against the revision petitioner/defendantin E.P.No.77 of 2002 an order of arrest was issued and the sameis pending for long time, as observed by the learned trialJudge in his order in I.A.No.269 of 2003 dated 24.11.2003.Furthermore, the learned trial Judge has observed that inI.A.No.269 of 2003 in O.S.No.36 of 1999 for the revisionpetitioner/applicant's Advocate Thiru.R.Manivannan has filedVakalat and appeared and before that for the civil revisionpetitioner/applicant already Thiru.P.Chandran appeared and thatthe revision petitioner has not obtained said Advocates'consent and filed new Vakalat and the revision petitioner forevery occasion is in the habit of engaging different counselswith a view to drag on the case. Earlier on 17.07.1996, anexparte decree was passed against the revisionpetitioner/applicant and an I.A.No.204 of 1996 was filed by therevision petitioner/applicant and by means of an order dated25.04.1997, the said exparte decree dated 17.07.1996 was setaside by the trial Court and again the case was taken up fortrial. Later on the revision petitioner/applicant did notappear on 11.03.2002 and onceagain an exparte decree was passedagainst him.6.It is to be pointed out that a party does not stand tobenefit by not appearing before the Court and refusing tocondone the delay can result in a good case being thrown out atthe earliest stage and cause of justice being defeated. Asagainst this, when delay is condoned, highest that can happenis that a cause would be decided on merits after hearing theparties. The term "Every days delay should be explained" shouldnot be viewed in a pedantic way, and the approach of the Courtmust be in a common pragmatic manner, in the considered opinionof this Court. https://hcservices.ecourts.gov.in/hcservices/

7.Furthermore, when substantial justice and technicalconsiderations are pitted against each other, cause ofsubstantial justice deserves to be preferred for the other sidecannot claimed to have vested right any injustice being donebecause of a non deliberate delay. As a matter of fact, alitigant does not stand to benefit by adopting dilatorytactics. On the contrary, he runs a serious risk it can be saidthat judiciary is respected not on account of its power tolegalize injustice on technical grounds, but because it iscapable of removing injustice and is expected to do so.8.As far as the present case is concerned, the reasonsassigned by the revision petitioner/applicant after receipt ofsummons from the Court Amin, he went to Bangalore for eking hislivelihood and there he suffered jaundice and took treatmentetc. Even though or not, satisfactory and cannot be accepted atthe face value yet the factum of non production of any evidencefor jaundice and not producing the certificate for medicaltreatment as to his said illness or treatment affecting thecase of the revision petitioner in entirety. At the same time,one cannot ignore the fact that prior to 11.03.2002, as againstthe civil revision petitioner, there was an exparte decreepassed on 17.07.1996 and the same was set aside on 25.04.1997,in the orders passed in I.A.No.204 of 1996. Therefore, it isevident that the revision petitioner/applicant/defendant is notefficaciously and diligently conducting the proceedings beforethe trial Court.9.Admittedly, the suit laid by the respondent/plaintiff isfor recovery of a sum of Rs.32,358.25/- based on a pro-notemade-over by the Rama Gounder in favour of the plaintiff on15.05.1994 for due consideration and the said borrowal isstoutly denied by the revision petitioner/defendant in thewritten statement for the various reasons assigned therein.Generally, in a delay condonation matters, a liberal view is tobe taken by Courts of law and there is no hard and fast rule orstraight jacket formula in this regard. However, the cost willbe the penalty/compensation. No wonder the length of delay isimmaterial. 10.Inasmuch as the substantial justice will have to bemeted out to the parties overriding the technicalconsiderations, this Court having regard to the facts andcircumstances of the case, allows the civil revision petitionwith a condition that the civil revision petitioner shall remita sum of Rs.600/- towards costs to the Tamil Nadu Mediation andConciliation Centre, Chennai within a period of two weeks fromthe date of receipt of a copy of this order and produce the https://hcservices.ecourts.gov.in/hcservices/ receipt before the Registry failing which, the civil revisionpetition shall stand dismissed automatically without anyfurther reference. Since the original suit is of the year 1999,the trial Court is directed to dispose of the same within aperiod of four months from the date of receipt of a copy ofthis order. In the facts and circumstances of the case, theparties are directed to bear their own costs. Consequently,connected miscellaneous petition C.M.P.No.13645 of 2004 isclosed. JbmSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge, Cheyyar, Thiruvannamalai District.2. The Record Keeper, VR Section, High Court, Madras.3. The Secretary,Tamil Nadu Mediation and Conciliation Centre,Chennai.+ 1 cc to Mr. S. Umapathy, Advocate in SR No. 2367KSJ(CO)SR/28.1.2008 Order in C.R.P.(NPD).No.1810 of 2004