THE HONOURABLE MR v. A.P.Vedavalli: RespondentAppeal preferred against the order and Decreetal order of this Courtpassed

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.07.2007CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MRS.JUSTICE R.BANUMATHIO.S.A.No.379/20061.Arun Alexander LakshmanProprietor M/s.Alraj Builders,No.15, First Main Road,Kumaran Nagar, Chennai 600 111.2.V.E.Arun: AppellantsVs.A.P.Vedavalli: RespondentAppeal preferred against the order and Decreetal order of this Courtpassed in application No.2322/2006 in Tr.C.S.No.578/2002, dated 27.10.2006.For appellants: Mr.R.SundarrajanFor respondent: Mr.M.VivekanandamurthyJ U D G M E N TR.BANUMATHI, J.This appeal is directed against the order of the learned Single Judgein A.No.2322/2006 in Tr.C.S.No.578/2002 declining to condone the delay of714 days in filing the application under Or.9 R.13 CPC and dismissing thePetition filed under Section 5 of the Limitation Act.2.Brief facts are as follows :-The appellants/Defendants entered into a joint venture Agreementin March 1998 with the respondent/ plaintiff for developing her propertysituated at Aminjakarai. Dispute arose between the parties and hence theterms of Agreement could not be carried out and dispute led to filing ofsuits by both parties. Appellants/Defendants filed C.S.No.113/2001 on thefile of High Court for recovery of a sum of Rs.15,00,000/- by way ofdamages from the respondent/plaintiff. Respondent/plaintiff has filedO.S.No. 86/2002 [instituted as informa pauperis] for declaration that theAgreement dated 06.04.1998 stood cancelled because of the non performanceof the part of the Agreement by the first Defendant and for a declarationthat the Sale Deed dated 31.03.1999 executed in favour of the thirdDefendant is null and void and for Permanent Injunction. The suit was https://hcservices.ecourts.gov.in/hcservices/ transferred to High Court and renumbered as C.S.No.578/2002. The matterwas posted in the list for trial and because of non appearance ofappellant, the suit was decreed exparte in the year 2002. The appellantsfiled application A.No.5460/ 2003 to set aside the exparte Decree passedagainst them, which was allowed on cost of Rs.25,000/-. Aggrieved over thesame, the appellants preferred O.S.A.No.7/2004 wherein the Division Benchhas confirmed the order directing the appellants to deposit a sum ofRs.25,000/- within two weeks from the date of the order. In compliancewith the said condition, the appellants have deposited a sum ofRs.25,000/- on 28.01.2004. Thereafter, the suit was again listed anddecreed exparte on 10.03.2004.3.E.P.Nos.59/2006 and 60/2006 were filed to execute the Decree forrecovery of damages. E.P. notice was served upon the Indian Overseas Bankwhere the second Defendant is working for his salary attachment.Thereafter, the appellants have filed A.No.2322/2006 to condone the delayof 714 days in filing the application under Or.9 R.13 CPC in filing theapplication to set aside the exparte Decree.4.In support of the application, the appellants filed affidavitstating that after the exparte Decree was set aside and matter was againtaken up for trial and in view of differences with their earlier counsel,they could not pursue the matter and that the delay is not wanton ordeliberate and prayed for condonation of delay of 714 days.5.The respondent/plaintiff inter-alia resisted the applicationcontending that the appellant had knowledge of the Decree passed on10.03.2004 and have not taken immediate steps to set aside the same.According to the plaintiff, the application has been filed to delay theexecution proceedings and the appellants have adopted dilatory tactics todefeat the claim of the plaintiff.6.In consideration of the materials, the learned Single Judge heldthat the supporting affidavit is bereft of particulars. The learned SingleJudge further observed that the appellants have not come to the Court withclean hands but have adopted dilatory tactics and on that ground, declinedto condone the delay. The learned Single Judge also observed thatappellants having been served with notice dated 21.11.2005, had knowledgeof the exparte Decree but had chosen to file application only on24.03.2006 and the delay is not satisfactorily explained.7.Being aggrieved by the impugned Order, appellants have preferredthis appeal. 8.Whether the appellants have satisfactorily explained the delay of714 days in filing the application under Or.9 R.13 CPC is the questioninvolved in this intra-court appeal. Taking us through the records, thelearned Counsel for the appellants would submit that the learned SingleJudge was not justified in observing that the appellants have adopteddilatory tactics. It was further submitted that after receipt of notice on https://hcservices.ecourts.gov.in/hcservices/

27.1.2005, the appellants through their Advocate have filed Search Memoand the appellants have taken immediate steps. Under these circumstances,it was contended that the appellants had made every endeavour to set asidethe exparte Decree passed against them. It was urged that when the claimfor damages is more than Rs.9,00,000/- and high stakes are involved, dueopportunity is to be given to the appellants or otherwise, seriousprejudice would be caused to the appellants. The learned Counsel for theappellants has placed reliance upon the following decisions :- 1969(2) SCC770 [Lala mata Din Vs. A.Narayanan]; 1979 (4) SCC 365 [Concord of IndiaInsurance Vs. Nirmala Devi]; 1981 (2) SCC 788 [Rafiq & Anr. Vs.Munshilaland Anr.]; AIR 1984 SC 1744 [O.P.Kathapalia Vs. Lakhmir Singh]; 1999 MLJ(Supreme Court) 114 [N.Balakrishnan Vs. Krishnamurthy]; 2000(3) LW 231[G.P.Srivatsava Vs.R.K. Raizada & Others]; 2000 (3) LW 938 [C.SubramanianVs. TNHB Rep. By Chairman and MD], 2007(2) CTC 58 [The Secretary, MadrasRace Club Vs.Saraswathy Kailasam].9.Countering the arguments, the learned Counsel for the respondentwould submit that the inordinate delay in filing the application has notbeen satisfactorily explained. It was further argued that even afterreceipt of notice sent in November 2005, informing about the filing of theExecution Petition, the appellants have not chosen to file applicationimmediately thereon. Under these circumstances, it was contended that thelearned Single Judge has rightly observed that the appellants are adoptingdilatory tactics with a view to delay the Execution proceedings. It wasfurther urged that the appellants are deliberately changing counsel onlyfor the purpose of delaying and for making unjustified allegations.10.We have carefully considered the submissions and examined therecords.11.It is settled law that "sufficient cause" must receive a liberalconstruction so as to advance substantial justice when no negligence, orinaction, or want of bonafide, is imputable to the applicant, the over-riding consideration being doing substantial justice. The Court should notlightly condone the delay in filing the application to set aside theexparte Decree. Discretion is to be exercised like any other judicialdiscretion with vigilance and circumspection. The true test is whether theapplicants have acted with due diligence.12.Referring to various case laws and elaborately considering thescope and discretion in Sec.5 of the Limitation Act, in 2005(3) SCC 752[State of Nagaland Vs.Lipok Ao and ors.], the Supreme Court has held asfollows:-"8.The proof of sufficient cause is a condition precedent forexercise of the extraordinary restriction (sic discretion) vested inthe Court. What counts is not the length of the delay but thesufficiency of the cause and shortness of the delay is one of thecircumstances to be taken into account in using the discretion.............12.In O.P.Kathapalia Vs. Lakhmir Singh [1984 (4) SCC 66] a https://hcservices.ecourts.gov.in/hcservices/ Bench of three Judges had held that if the refusal to condone thedelay results in grave miscarriage of justice, it would be a groundto condone the delay. Delay was accordingly condoned. In Collector,Land Acquisition Vs. Katiji [1987 (2) SCC 107] a Bench of two Judgesconsidered the question of limitation in an appeal filed by theState and held that Section 5 was enacted in Order to enable theCourt to do substantial justice to the parties by disposing of thematters on merit. The expression 'sufficient cause' is adequatelyelastic to enable the Court to apply the law in a meaningful mannerwhich subserves the ends of justice – that being the life purposefor the existence of the institution of Courts. It is commonknowledge that this Court has been making a justifiably liberalapproach in matters instituted in this Court. But the message doesnot appear to have percolated down to all the other Courts in thehierarchy. This Court reiterated that the expression "every day'sdelay must be explained" does not mean that a pedantic approachshould be made. The doctrine must be applied in a rational, common-sense, pragmatic manner. When substantial justice and technicalconsiderations are pitted against each other, cause of substantialjustice deserves to be preferred for the other side cannot claim tohave vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioneddeliberately, or on account of culpable negligence, or on account ofmalafides. A litigant does not stand to benefit by resorting todelay. In fact he runs a serious risk. Judiciary is not respected onaccount of its power to legalise injustice on technical grounds butbecause it is capable of removing injustice and is expected to doso. Making a justice oriented approach from this perspective, therewas sufficient cause for condoning the delay in the institution ofthe appeal". [underlining added].13.In N.Balakrishnan Vs.M.Krishnamurthy [1998(7) SCC 123], theSupreme Court held that acceptability of explanation for the delay is thesole criterion and length of delay is not relevant. In the absence ofanything showing malafide or deliberate delay as a dilatory tactic, theCourt should normally condone the delay. However, in such a case the Courtshould also keep in mind the constant litigation expenses incurred or tobe incurred by the opposite party and should compensate him accordingly.In that context the Supreme Court observed as follows :-"9.It is axiomatic that condonation of delay is a matter ofdiscretion of the Court. Section 5 of the Limitation Act doesnot say that such discretion can be exercised only if the delayis within a certain limit. Length of delay is no matter,acceptability of the explanation is the only criterion.Sometimes delay of the shortest range may be condonable due towant of acceptable explanation whereas in certain other cases,delay of a very long range can be condoned as the explanationthereof is satisfactory. Once the Court accepts the explanationas sufficient, it is the result of positive exercise ofdiscretion and normally the superior Court should not disturbsuch finding, much less in revisional jurisdiction, unless the https://hcservices.ecourts.gov.in/hcservices/ exercise of discretion was on wholly untenable grounds orarbitrary or perverse. But it is a different matter when thefirst Court refuses to condone the delay. In such cases, thesuperior Court would be free to consider the cause shown for thedelay afresh and it is open to such superior Court to come toits own finding even untrammeled by the conclusion of the lowerCourt".14.Following N.Balakrishnan V.M.Krishnamurthy (supra) and referringto various other decisions, in C.Subramaniam V. Tamil Nadu Housing Boardrep. By its Chairman (supra) Division Bench of this Court has laid downthe following guidelines in considering applications filed under Sec.5 ofthe Limitation Act, seeking condonation of delay -"To turn up the legal position – (1)the word "sufficient cause"should receive liberal construction to do substantial justice; (2)what is "sufficient cause" is a question of fact in a givencircumstances of the case; (3)it is axiomatic that condonation ofdelay is discretion of the Court; (4)length of delay is no matter,but acceptability of the explanation is the only criterion; (5)onethe Court accepts the explanation as "sufficient", it is the resultof positive exercise of discretion and normally the superior Courtshould not disturb in such finding unless the discretion wasexercised on wholly untenable or perverse; (6)The rules oflimitation are not meant to destroy the rights of the parties butthey are meant to see that the parties do not resort to dilatorytactics to seek their remedy promptly. (7)Unless a party shows thathe/she is put to manifest injustice or hardship, the discretionexercised by the lower Court is not liable to be revised. (8)If theexplanation does not smack of mala fides or it is put-forth as partof a dilatory strategy the Court must show utmost consideration tothe suitor. (9)If the delay was occasioned by party deliberately togain time, then the Court should lean against acceptance of theexplanation and while condoning the delay, the Court should notforget the opposite party altogether".15.Referring to Balakrishnan's case and other cases, in 2001(6)SCC176 [M.K.Prasad Vs.P.Arumugam], the Supreme Court has held thus :-"9.Again in State of West Bengal Vs. Administrator, HowrahMunicipality [1972(1) SCC 366] and G.Ramegowda, Major Vs.Specialland Acquisition Officer [1988(2) SCC 142], this Court observed thatthe expression "sufficient cause" in Section 5 of the Limitation Actmust receive a liberal construction so as to advance substantialjustice and generally delays be condoned in the interest of justicewhere gross negligence or deliberate inaction or lack of bonafide isnot imputable to the party seeking condonation of delay. Law oflimitation has been enacted to serve the interests of justice andnot to defeat it."16.The appellants were served with notice on 27.11.2005 in which thepassing of the exparte Decree was mentioned. Though the appellants were https://hcservices.ecourts.gov.in/hcservices/ served with the said notice on 27.11.2005, the appellants have chosen tofile the application under Sec.5 of the Limitation Act, on 24.03.2006.Noticing the aforesaid delay, the learned Single Judge took the view thatthe appellants have adopted dilatory tactics and no indulgence could beshown to them in condoning the delay. The learned Counsel for therespondent relied upon AIR 1989 Andhra Pradesh 255 [M/s.TransworldShipping Service India Pvt.India Vs.M/s.Harwan Investment and Trading Pvt.Ltd.] and AIR 1995 Rajasthan 47 [Mahesh Bhardwaj Vs.Smita Bhardwaj] andcontended that materials on record show that the appellants had knowledgeand hence plea of late knowledge is not tenable and delay cannot becondoned.17.It is settled law that Section 5 application is to be construedliberally so as to do substantial justice to the parties. The provisioncontemplates that the Court has to go into the position of the personconcerned and find out if the delay can be said to have been resulted fromthe cause which the petitioner had adduced and whether the cause stated inthe circumstances of the case is sufficient. It is the condition precedentfor the exercise of discretion that the Court must satisfy itself as towhether there was sufficient cause for exercising such discretion andcondoning the delay. The expression 'sufficient cause' should beconsidered with pragmatism with a justice oriented approach.18.Court has to see whether sufficient cause is shown for the delay.What is or what is not 'sufficient cause' would depend upon varied andspecial circumstances of each case. To decide whether sufficient cause isshown or not, it is very undesirable to act upon precedents as every Judgehas to deal with particular facts of each case. In State of Kerala V.E.K.Kuriyipe [1981 Supp SCC 72], it was held that whether or not there issufficient cause for condonation of delay is a question of fact dependentupon the facts and circumstances of the particular case.19.Of course, the appellants had received the legal notice on27.11.2005 and 28.11.2005 issued by the respondent's counsel informingthem about the passing of the Decree in Tr.C.S.No.578/2002. The appellantshad taken steps by filing Search Memo on 01.12.2005 through their previouscounsel. Again Search Memo was filed only on 24.03.2006. Onbehalf of theappellants it is stated that it took time for the appellants to obtain theconsent of the previous counsel on record and thereafter, they took stepsin filing the Search Memo. Of course, it may be that the appellants shouldhave been more vigilant in taking prompt steps to obtain consent fromtheir previous counsel. But they cannot be castigated as "irresponsiblelitigants". The observations of the Supreme Court in Balakrishnan's Case1999(1) MLJ 114 would be relevant :-"Of course, it may be said that he should have been morevigilant by visiting his advocate at short intervals to check upthe progress of the litigation. But during these days wheneverybody is fully occupied with his own avocation of life anomission to adopt such extra vigilance need not be used as aground to depict him as a litigant not aware of his https://hcservices.ecourts.gov.in/hcservices/ responsibilities, and to visit him with drastic consequences".20.Having regard to the materials on record, we find that theappellants had tried to explain the delay in filing the application forsetting aside the exparte Decree as is evident from the averments in theaffidavit. As noted above, the suit was earlier decreed exparte, which wasset aside on conditional deposit of a sum of Rs.25,000/-. As against thatorder, the appellants preferred O.S.A.No.7/2004. The order passed by thelearned Single Judge was confirmed and the Division Bench by its orderdated 19.01.2004 directed the appellants to deposit a sum of Rs.25,000/-within two weeks from the date of the said order. The appellants havecomplied with the condition by depositing the said sum of Rs.25,000/- on28.01.2004. Deposit of Rs.25,000/- and compliance of order inO.S.A.No.7/2004 would only indicate diligence of the appellants inpursuing the matter. Again after the suit was decreed and after receipt oflegal notice on 27.11.2005, appellants have contacted their counsel topursue the matter. Only because of the difference with their counsel, itis stated that the appellants could not immediately file Search Memo andpursue the matter. In our opinion, the learned Single Judge has notadverted to the explanation put-forth by the appellants.21.It is averred that because of the differences with their counsel,they were not properly informed and that they were under the bonafideimpression that the exparte Decree would be set aside. The appellants havefurther averred that only after serving of notice in the ExecutionPetitions, issued from the Master's Court, they came to know about theexparte Decree. In our considered view, the appellants having compliedwith the condition by depositing Rs.25,000/- does not stand to gain byleaving the matter exparte. This is all the more so, when the appellantsthemselves have filed the suit C.S.No.113/2001 for recovery ofRs.15,00,000/- by way of damages. Having regard to the conduct of theparty, we are unable to subscribe to the view of the learned Single Judgethat the appellants have adopted dilatory tactics.22.No doubt in E.P.Nos.59/2006 and 60/2006, execution Notice wasserved upon Indian Overseas Bank for attachment of salary of the secondDefendant. According to the appellants, only when Execution PetitionNotice was served upon the Bank in 2006, they came to know about theexparte Decree. Pointing out serving of notice upon the appellants on27.11.2005, the learned Single Judge faulted the appellants for not takingimmediate steps to set aside the exparte Decree. Accepting the contentionof the respondent/ plaintiff the learned Single Judge found that there wasno reason whatsoever for not taking immediate steps when the exparteDecree was made known to the appellants even on 27.11.2005. It is in thiscontext, the learned Single Judge has observed that the appellants haveadopted dilatory tactics and have not come to the Court with clean hands.23.Having regard to the materials on record and the conduct of theparties, we are unable to subscribe to the views of the learned SingleJudge. After the appellants were served with notice on 27.11.2005, the https://hcservices.ecourts.gov.in/hcservices/ appellants through their advocate have filed Search Memo on 01.12.2005stating that they have proposed to inspect all the original records andthere are not in a position to instruct their present counsel. Again on24.03.2006, the appellants through their advocate have filed a Search Memofor inspection of the documents a copy of which was served upon thecounsel for the plaintiff. We find that the appellants have made diligentefforts to search the records before respondent to the notice dated21.11.2005 and taken appropriate steps. Having regard to the conduct ofthe parties, the appellants cannot be castigated as irresponsiblelitigants or could any dilatory tactics be attributed to them.24.On receipt of notice on 27.11.2005, the appellants contacted theircounsel and filed "Search Memo" on 01.12.2005, expressing their intentionto verify the original records in Tr.C.S.No.578/2002. To that effect, theappellants had also issued notice to the respondent's counsel [dated24.03.2006] reiterating their intention to inspect the documents in thepresence of the respondent's counsel so as to respond to the notice andtake appropriate steps. Filing of "Search Memo" for the purpose ofverification of original records might have been the advice given by thethen counsel on record. By and large, parties go by the advice of theirlawyers. Law is settled that mistake of counsel may in certaincircumstances be taken into account in condoning the delay and there is nogeneral proposition that mistake of counsel by itself is always asufficient ground. 25.Referring to 1969(2) SCC 770 [Lata mata Din Vs. A.Narayanan], in1979 (4) SCC 365 [Concord of India Insurance Vs.Nirmala Devi], SupremeCourt has held that the law is settled that mistake of counsel may incertain circumstances be taken into account in condoning delay althoughthere is no general proposition that mistake of Counsel by itself isalways a sufficient ground. It is always a question whether the mistakewas bonafide or was merely a device to cover an ulterior purpose such aslaches on the part of the litigant or an attempt to save limitation in anunderhand way. There is nothing to show that error committed by theAdvocate was tainted by any malafide motive on the part of the Counsel forthe litigant.26.We are unable to accept the contention of the learned Counsel forthe respondent/plaintiff that there is unexplained and unreasonable delaybetween November 2005 and March 2006 is not satisfactorily explained. Theappellants seem to have made endeavour to search for the records andthereafter filed application under Sec.5 of the Limitation Act along withapplication under Or.9 R.13 CPC. Under those circumstances, it cannot besaid that the delay between November 2005 and March 2006 is un-comprehensible to shut the doors to the appellants.27.While considering the application under Sec.5 of the LimitationAct, Court can also examine whether the petitioners have arguable pointson facts and law. Spate of arguments was advanced as to certain https://hcservices.ecourts.gov.in/hcservices/ corrections in the plaint. At this junction, it is relevant to note thatsuit was originally filed for – [a]declaration that Agreement dated06.04.1998 stood cancelled; [b]for declaration that the Sale Deed by theDefendant in favour of the third Defendant is null and void and to cancelthe same; [c]prayer for compensation – struck off; [d] PermanentInjunction restraining the Defendants from interfering with theplaintiff's possession and enjoyment of the suit property. The prayer incolumn [c] – compensation for Rs.9,00,000/- has been struck off. At alater point of time, when the amended plaint was filed, compensation forRs.9,00,000/- appears to have been inserted by ink writing as prayer "e".The learned Counsel for the appellants contended that such omission andcommission made in the original plaint are manipulation of the Courtrecords and compensation prayer has been inserted at the time of filingamended copy even without an order of the Court. Per contra, the learnedCounsel for the respondent/plaintiff has alleged that the appellants havesurreptitiously corrected the plaint and tampered with the Court records.The learned Counsel for the respondent/ plaintiff has further submittedthat the factum of compensation claimed has been categorically admitted bythe first Defendant in his Written Statement and also the appellantscannot turn round and contend that subsequent insertion of claim forcompensation. Placing reliance upon number of decisions, the learnedCounsel for the respondent has contended that the plea of insertion in theplaint as defence is only an afterthought. It was further urged that theplea regarding compensation claim are by far the best proof of the factsthat there was claim for compensation of Rs.9,00,000/-.28.Since much arguments were advanced as to the scoring of quantum ofclaim of Rs.9,00,000/-, and insertion of claim for compensation in theamended plaint, each party making allegations and counter allegations, wehave called for the original records and we have carefully perused theoriginal records. In our view, certainly there is correction in theamended plaint. But who is responsible for such correction is the question.29.Even the learned Single Judge has expressed his anguish regardingthe corrections made in the Court records. We are informed that acomplaint has been lodged before the Registrar and the matter has beenseized of by the Registrar. While the matter is so pending before theRegistrar, we are not inclined to express any opinion as to thecorrections made in the plaint and insertion of compensation claim ofRs.9,00,000/- lest, it would affect the ongoing inquiry. Suffice it tonote that the result of the inquiry would help the Court as well as theparties in arriving at a finality.30.Having regard to the limited scope in this appeal, we feel underwhat circumstances the corrections were made is not much relevant.However, we have taken note of the fact that in the Suit Register, whichis a permanent record, there is no prayer for claim of compensation ofRs.9,00,000/-. In our opinion, whether there was a claim at all forcompensation of Rs.9,00,000/- in the original plaint becomes a point to be https://hcservices.ecourts.gov.in/hcservices/ determined, which of course is subject to the result of the inquiry on theadministrative side. When the claim itself is clouded, it would be unjustto compel the Defendants to comply with the exparte Decree for damages. Inour considered view, the Defendants have arguable/triable points to put-forth, for which an opportunity is to be afforded to them by setting asidethe exparte Decree.31.When the trial Court had exercised the discretion, declining tocondone the delay, normally, the Appellate Court/revisional Court will notlightly interfere. However, having regard to the facts and circumstancesof the case, and the conduct of the appellants, as a whole, they cannot becastigated as irresponsible litigants. Keeping in view the varied standand stake of the parties, the learned Single Judge could have allowed theapplication and condoned the delay, setting aside the exparte Decree.32.Having regard to the facts and circumstances of the case, we findthat the explanation put-forth by the appellants is satisfactory. Thelearned Single Judge has declined to condone the delay mainly on theground that the execution proceedings had been initiated and that theappellants were not diligent. In our view, opportunity is to be given tothe appellants to put forth their defence, particularly in respect ofclaim for compensation. Even though the appellants appear to be notvigilant as they ought to have been, yet their conduct on the whole doesnot warrant to castigate them as "irresponsible litigants". The appellantswho are educated ought to have been more vigilant. But their failure totake such extra vigilance should not have been made a ground for oustingthem from litigation when there is a huge claim of compensation.33.In our view, explanation for delay of 714 days in filing theapplication under Or.9 R.13 CPC is satisfactorily explained. Whilecondoning the delay, the Court should strike a just balance between theright enured to the plaintiff on the expiry of the period of limitationand the inconvenience caused to the respondent/plaintiff. We are of theopinion that the inconvenience caused to the respondent for the delay onaccount of the appellants' can be compensated by awarding appropriate andexemplary cost. 34.Taking note of the inconvenience caused to the respondent, inM.K.Prasad Vs.Arumugam [2001(6) SCC 176], the Supreme Court has condonedthe delay on payment of exemplary cost of Rs.50,000/- to be paid to theopposite party. The Supreme Court has held as follows :-"We are of the opinion that the inconvenience caused to therespondent for the delay on account of the appellant being absentfrom the Court in this case can be compensated by awardingappropriate and exemplary costs. In the interest of justice andunder the peculiar circumstances of the case, we set aside the Orderimpugned and condone the delay in filing the application for settingaside exparte Decree. To avoid further delay, we have examined themerits of the main application and feel that sufficient groundsexist for setting aside the exparte Decree as well". https://hcservices.ecourts.gov.in/hcservices/

35.To avoid any further delay, we have also examined the merits ofthe main application under Or.9 R.13 CPC. In our opinion, sufficientgrounds exist for setting aside the exparte Decree as well. Observing thatdiscretionary jurisdiction has been conferred upon the Court that whilesetting aside the exparte Decree, the Court can put the Defendant onreasonable terms, in 2007(1)CTC 89, Tea Auction Ltd. Vs. Grace Hill TeaIndustry and another, referring to various decisions, Supreme Court hasheld :"10.We may at once notice that whereas Order IX Rule 7postulates setting aside the orders passed by the Court upon suchterms of costs or otherwise; Order IX Rule 13, inter alia,postulates "payment into Court".11.What would be the meaning of "payment into Court" is thecore question. ..........16.Order IX Rule 13 of CPC did not undergo any amendment in theyear 1976. The High Courts, for a long time, had been interpretingthe said provision as conferring power upon the Courts to issuecertain directions which need not be confined to costs or otherwise.A discretionary jurisdiction has been conferred upon the Courtpassing an order for setting aside an exparte Decree not only on thebasis that the Defendant had been able to prove sufficient cause forhis non-appearance even on the date when the Decree was passed, butalso other attending facts and circumstances. It may also considerthe question as to whether the Defendant should be put on terms. TheCourt, indisputably, however, is not denuded of its power to put theDefendants to terms. It is, however, trite that such terms shouldnot be unreasonable or harshly excessive. Once unreasonable or harshconditions are imposed, the Appellate Court would have power tointerfere therewith. .... What would be reasonable terms woulddepend upon facts and circumstances of each case".In the interest of justice and in the facts and circumstances of the case,we set aside the order impugned and condone the delay in filing theapplication for setting aside the exparte Decree on payment of exemplarycost of Rs.50,000/-. 36.The house of the plaintiffs was demolished and the work could notprogress for one reason or another. When the matter earlier came up foradmission before the First Bench, the appellants themselves have filed aMemo that they are prepared to deposit Rs.3,50,000/- towards the credit ofthe suit to show their bonafide. When the matter was heard by us, thelearned Counsel for the appellants has submitted that appellants did filesuch a memo before the First Bench. In our opinion, directing theappellants to deposit Rs.3,50,000/- would infuse a sense of responsibilityin the minds of the appellants for getting along with the matter. Wefeel, the circumstances of the case amply justify a direction to theDefendants to deposit a sum of Rs.3,50,000/- towards the credit ofTr.C.S.No.578/2002 as a condition for setting aside the exparte Decree. https://hcservices.ecourts.gov.in/hcservices/

37.Consequently, this appeal is allowed by setting aside the orderimpugned. The application of the appellants for condoning the delay andfor setting aside the exparte Decree shall stand allowed on payment ofcost of Rs.50,000/- to be paid to the opposite party within a period ofeight weeks. Amount of Rs.3,50,000/- shall be deposited to the credit ofTr.C.S.No.578/2002 within a period of eight weeks. We direct that theamount shall be invested in a nationalized Bank in Fixed Deposit, so thatthe amount may fetch interest to the benefit of either party. If the costis not paid and deposit not made within the stipulated time, this appealshall be deemed to have been dismissed and the exparte Decree passedagainst the appellants shall stand revived.38.We make it clear that the observations made in this Judgment arenot to be construed as expression or opinion on the merits of the case.Having regard to the stakes of the parties, we would also request thelearned Single Judge to have early disposal of the matter, preferrablywithin a period of 10 months from the date of this order.39.In the result, the appeal is allowed. However in the circumstancesof the case, there is no order as to costs. Consequently, M.P.Nos.1 and 2of 2006 are closed.tar Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,The sub Assistant Registrar,Original Side, High Court,Madras.+1 cc to Mr.M.Vivekananda Murthy, Advocate Sr.No.41479.JRG(CO)dcp/17.7.07O.S.A.No.379/2006