M.Sudhakar v. Sarala Krishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.02.2008CORAMTHE HON'BLE Mr.JUSTICE M.VENUGOPALC.R.P.(NPD).No.586 of 2004 andC.M.P.No.4890 of 2004M.Sudhakar... Petitioner / Respondent /DefendantVs.1) Sarala Krishnan2)Vimala Bahulayan... Respondents / Petitioners/PlaintiffsThis petition has been filed to set aside the Order andDecretal Order dated 18.09.2003 passed in I.A.No.21198 of 2002 inO.S.No.6494 of 1997 on the file of the VI Assistant City CivilJudge, Chennai.For Petitioner: Mr.A.SeshanFor Respondent 1&2: M/s.E.Prabhu Mr.S.Mohan O R D E RThe Civil Revision Petition has been preferred by theRevision Petitioner / Respondent / Defendant as against the Orderpassed by the learned VI Assistant Judge, City Civil Court, Chennaiin I.A.No.21198 of 2002 in O.S.No.6494/1997 on 18.09.2003.2.The Respondents / Petitioners / Plaintiffs have filedI.A.No.21198 of 2002 under Section 5 of the Limitation Act, prayingfor condonation of delay of 1375 days in filing an application toset aside the Order of dismissal of Suit O.S.No.6494 of 1997 dated15.10.1998.3.The learned VI Assistant Judge, City Civil Court,Chennai, has passed conditional Orders in I.A.No.21198/2002 inO.S.No.6494/1997 on 18.09.2003 interalia observing that 'thispetition is allowed on payment of cost of Rs.1,000/- to be paid onor before 03.10.2003, failing which the Petition shall standdismissed. Call on 06.10.2003'. https://hcservices.ecourts.gov.in/hcservices/

4.Aggrieved against the Conditional orders passed inI.A.No.21198/2002 in O.S.NO.6494/1997 by the learned VI AssistantJudge, City Civil Court on 18.09.2003, the Petitioner / Respondent /Defendant has filed the present revision before this Court.5.According to the learned counsel for the RevisionPetitioner / Respondent / Defendant, the Trial Court erred in nottaking into account of the fact that the Respondents / Petitioners /Plaintiffs have not assigned satisfactory reasons to condone thelong delay of 1375 days and that the Court below has not discussedor considered whether any sufficient cause has been made out tocondone the delay when the Suit is of the year 1981 and that thereasoning assigned in allowing the application to condone the longdelay are unsustainable in law and therefore prays for allowing theRevision Petition.6.The learned counsel for the Respondents / Petitioners /Plaintiffs contend that the Suit C.S.No.395/82 originally filedbefore the Hon'ble High Court, consequent to change in pecuniaryjurisdiction was transferred to the file of the VI Assistant Judge,City Civil Court, Chennai and renumbered as O.S.No.6494/1997 andwhen came up for hearing on 15.10.1998 that there was norepresentation on the side of Respondents / Petitioners / Plaintiffsand therefore the Court was perforced to pass an Order of dismissingthe suit for default because of the non-appearance of theRespondents / Petitioners / Plaintiffs and this factum of dismissalof the Suit came to the knowledge of the Respondents /Petitioners / Plaintiffs only on 29.07.2002 and resultantly therehas been a delay of 1375 days in filing Section 5 Application andthat the Court below has taken into consideration all the avermentsmentioned in the Affidavit filed by the Respondents / Petitioners /Plaintiffs in I.A.No.21198 of 2002 and passed a Conditional OrderDt.18.09.2003 directing the Respondents / Petitioners / Plaintiffsto pay a sum of Rs.1,000/- towards costs to be paid on or before03.10.2003 etc., and the same need not be interfered with.7.The learned counsel for the Revision Petitioner /Respondent / Defendant, in support of his contention that theRespondents / Petitioners / Plaintiffs have not shown sufficientcause to condone the long delay of 1375 days, relied on the decision(2001)1 M.L.J. 768, Vaijayanthimala and others V. A.Ramasamy,whereby it is laid down as follows:"Civil Procedure Code (V of 1908), O.9, Rule 13 -Petition for setting aside ex parte decree - when may beallowed - "Was prevented by sufficient cause fromappearing" - Implication of. https://hcservices.ecourts.gov.in/hcservices/ It is true that the Supreme Court in C.P.SrivatsavaV. Shri R.K.Raizada, (2000) 2 C.T.C. 27 while consideringthe words "was prevented by any sufficient cause fromappearing" held that the said words must be liberallyconstrued to enable the Court to do complete justicebetween the parties particularly when no negligence orinaction is imputable to erring party. However, in thiscase even though all the 4 defendants were set ex parte asearly as on 5.7.1996, there is no explanation whatsoeverfrom the petitioners 2 to 4 for their non-appearanceeither on 05.07.1996 when the ex parte order was passed oron 11.07.1996 when the ex parte decree was passed againstthem and the only explanation offered by the 1stPetitioner was that she was affected from jaundice from8.7.1996. There was no explanation even by the 1stPetitioner for her absence to file written statement on05.07.1996 on which date even according to the 1stPetitioner she was not affected by jaundice. In theabsence of any explanation, it cannot be contended thatthere was sufficient cause for the petitioners for theirfailure to appear before the Court either on 05.07.1996 oron 11.07.1996. In the absence of non-explanation for theabsence of the petitioners on 05.07.1996, there is nomerit in the contention of the learned counsel for thepetitioners for setting aside the ex parte decree."7a.In the decision 2008 (1) LW, 141 and 142, Bagh Mal (alias)Ram Bux and others V. Munshi (D) by Lrs; the Hon'ble Supreme Courthas observed as follows :"A law cannot be construed in a manner which woulddefeat the ends of justice - when an appeal / suit abates,the same may not amount to adjudication of a decree onmerit, but indisputably it would attain finalaity -decision on merits is not the only test to determine thefinality of decision - finality gained due to abatement isan illustration of the aforementioned variety"8.Per contra, the learned counsel for the Respondents /Petitioners / Plaintiffs submits that the condonation of delay isthe discretion of the court and placed reliance on the decision1999-1-L.W.739 between N.Balakrishnan v. M.Krishnamurthy, whereunder it is held as follows:"Limitation Act (1963), S.5 - Discretion of Court -Section not to be construed as saying that suchdiscretion is to be exercised only when the delay is https://hcservices.ecourts.gov.in/hcservices/ within certain limit - Length of delay is no matter -Sufficiency of the explanation is the relevant criterion- Duty of Court is to advance substantial justice andgive liberal construction to the Section.Rules of limitation are not meant to destroy rightsof parties - Refusing to condone delay is foreclosing asuitor from putting forth his cause - There is nopresumption that delay in approaching Court is alwaysdeliberate - Delay condoned on terms."9.He also pressed into service (2001) 1 M.L.J. 105 betweenR.M.Arunachalam v. P.L.R.Arunachalam Chettiar and others, wherein itis observed as follows:-Limitation Act (XXXVI of 1863), Sec.5 - Delay of 558 daysin filing petition to restore the suit dismissed fordefault - Petitioner stating that he met calamities inlife, resulting in mental suffering etc., resulting indelay - Even if the delay is not properly explained,petitioner should not be punished with a denial ofopportunity to prosecute his case - petition allowed onpayment of cost of Rs.2,500/-".10.Further, attention of this Court is also drawn to thedecision (2001) 1 M.L.J.231 between Devi and others v. K.Jayaraman,wherein it is held as follows:"Limitation Act (XXXVI of 1963), Sec.5 - Applicationunder, for condonation of delay - Delay quite long -Petitioner, held, cannot be punished with denial ofopportunity to presecute the main case - Application, canbe allowed with costs."11.It is pertinent to point out that earlier before theHon'ble High Court in C.S.No.395/82 (later transferred andrenumbered as O.S.No.6494/97 on the file of the VI Assistant Judge,City Civil Court, on account of pecuniary jurisdiction) an ex-partepreliminary decree was passed on 01.11.1991 and the same was setaside by the Hon'ble High Court as per Order made in ApplicationNo.4024/96 (filed by the Revision Petitioner / Defendant ) dated31.10.1996.12.The stand of the Revision Petitioner / Respondent /Defendant is that the averments in the Affidavit inI.A.No.21198/2002 filed by the Respondents / Petitioners /Plaintiffs are vague and that no particulars or details arefurnished and that he is unaware of the facts mentioned regarding https://hcservices.ecourts.gov.in/hcservices/ the counsel appearing for the Respondents / Petitioners / Plaintiffsand that the 2nd Respondent / 2nd Petitioner / 2nd Plaintiff losther husband before 01.11.1991 when an ex-parte decree was granted tothem.13.According to the Revision Petitioner, the Respondents /Petitioners / Plaintiffs used to visit one Madhavan, their relativeby coming to Madras on number of occasions after 1991 till 2002 andeven subsequently and as a matter of fact 2nd Respondent / 2ndPetitioner's son-in-law was employed in a bank in Madras andtherefore the 2nd Respondent / 2nd Petitioner / 2nd Plaintiff usedto visit her daughter's house in Madras frequently and that 2ndPetitioner's daugther Kavitha was employed as a teacher in someschool in madras and that the Respondents / Petitioners /Plaintiffs had number of friends and relatives in Madras andtherefore they used to visit Madras frequently and as such thecontrary averments found in the Affidavit of the Respondents /Petitioners / Plaintiffs in I.A.No.21198 of 2002 are factuallyincorrect.14.Expatiating his submission, the learned counsel for theRevision Petitioner submits that the Respondents / Petitioners /Plaintiffs were not diligent in prosecuting in the lis and thatsince the Revision Petitioner has married a girl of his own choice,the Respondents are not interested in getting a share in theproperty and therefore they have filed the I.A.No.21198/2002 forcondonation of delay to cause harassment and annoyance to theRevision Petitioner and in short the application suffer from lack ofbona fides.15.The stand of the Respondents / Petitioners / Plaintiffsis that the 1st Respondent / 1st Petitioner's husband working inleading private company was being transferred from place to placelike Baroda, Assam, New Delhi, Pune, etc., and resultantly the 1stRespondent / 1st Petitioner was away from Chennai for a long timeand since their then counsel used to write to them regularlyapprising the progress of the matter they were confident that it wasbeing handled well and at this point of time, the 2nd Respondent /2nd Petitioner was settled in Karala was attending to her bedriddenhusband, who was hailing for near 7 years and therefore the 2ndRespondent / 2nd Petitioner / 2nd Plaintiff could not go anywhereelse, etc. The other reasons ascribed by the Respondents /Petitioners / Plaintiffs are that because of their familycommitments and pre-occupations they were genuinely unable to visitChennai and from 1995 onwards, letters from the counsel Mr.Sugumaranstopped coming and inspite of their letters, there was no reply and https://hcservices.ecourts.gov.in/hcservices/ consequently, they could not keep track of the case and only whenthe 1st Respondent / 1st Petitioner / 1st Plaintiff came to Chennaiin June 2002, she knew about the demise of her counsel in 2001 afterlong illness and only in July 2002 with the help of their presentcounsel they came to know about the transfer of C.S.395/1982 fromthe file of the Hon'ble High Court to the file of the VI AssistantJudge, City Civil Court, Chennai and renumbered as O.S.No.6494/1997and the same was dismissed on 15.10.1998 owing to their non-appearance, by the court below.16.The pith and substance of the contention of the RevisionPetitioner / Defendant / Respondent is that the Respondents /Petitioners / Plaintiffs have not prosecuted the matter diligentlyfor a period of nearly 7 years and in the absence of 'sufficientcase', I.A.No.21198/2002 is liable to be dismissed, since the sameis not maintainable in law. 17.It is to be borne in mind that the term 'sufficient cause'is elastic so as to enable the Court of law to apply the same in apurposeful way to deliver substantial justice to a litigant. As amatter of fact, there cannot be any presumption that the delay hasoccasioned wantonly or on account of the culpable negligence or onaccount of the mala fides. After all, a party does not stand tobona fide by resorting to delay. Per contra he / she runs a seriousrisk, in the considered opinion of this court.18.Generally, if the mistake is not attributed to a litigant,the same can be condoned as per decision AIR 1991, Allahabad, Page317, U.P.State Road Transport Corporation v. Kedar Singh and others.19.It is not out of place to refer to the decision 1981 (3)SCR 509, Rafiq and Another V. Munshilal and Another, whereby it isobserved that 'it is not proper that an innocent litigant, afterdoing everything in his power to effectively participate in hisproceedings by entrusting his case to the Advocate, should be madeto suffer for the inaction, deliberate omission or misdemeanour ofhis agent and for whatever reason the Advocate might have absentedhimself from the court, the innocent litigant could not be allowedto suffer injustice for the fault of his Advocate'.20.At this juncture, it is quite apt to point out that Rule32 of the Civil Rules of Practice in regard to proof of facts byAffidavit runs as follows:“32. Proof of facts by Affidavit - Any fact required to beproved upon an interlocutory proceeding shall, unlessotherwise provided by these rules, ordered by the Court, https://hcservices.ecourts.gov.in/hcservices/ be proved by Affidavit, but the judge may, in any case,direct evidence to be given orally; and there upon theevidence shall be recorded and exhibits marked, in themanner as in a Suit and lists the witnesses and exhibitshall be prepared and annexed to the judgement."21.In fact refusing to condone the delay can result inmeritorious matter being thrown at the very early stage and cause ofjustice being defeated. When delay is condoned, the highest thingthat can happen is that a cause can be decided on merits afterhearing the parties. In short, when substantial justice andtechnical considerations are pitted against each other, cause ofsubstantial justice deserves to be preferred for the other sidecannot lay a claim to have vested right in injustice being donebecause of non-deliberate delay. It is to be noted that judiciaryis to be respected not on account of its power to legalise injusticeon technical grounds but because it is capable of removing injusticeand is expected to do so.22.As far as the present case is concerned, that both partieshave not availed the remedy of letting in oral or documentaryevidence to prove any fact or disprove the same. Obviously theyrelied on the Affidavit and Counter Affidavit filed in the matter inissue and the Court below has passed orders. It appears that thecost of Rs.1,000/- awarded by the court below has been refused to bereceived by the Revision Petitioner / Respondent / Defendant and thesame has been deposited into court. It is true that the length ofdelay is immaterial.23.Inasmuch as the Respondents / Petitioners / Plaintiffshave ascribed sufficient reasons that their earlier counsel, who waskeeping track of the case has expired and their letters of replyproved futile and since they came to know about his death (expiredin 2001) only when the 1st Respondent / 1st Petitioner / 1stPlaintiff came to Chennai in June, 2002 she knew about the plight oftheir case through the present counsel in July 2002 etc., this Courtis not inclined to set aside the discretionary Conditional Orderpassed by the Trial court in I.A.No.21198/2002 in O.S.No.6494/1997dated 18.09.2003 and bearing in mind the decision of the Hon'bleSupreme Court 2002 (1) CTC Page 769 between Ramnath Sao (a) RamnathSahu And Others V. Gobardhan Sao And Others, and since Courts are totake a common pragmatic liberal view in these matters because of theaxiomatic fact that processual law always subservient and is in aidof justice, the Civil Revision Petition is dismissed by this Courtfor the reasons assigned in the Revision. Consequently themiscellaneous petition is closed. https://hcservices.ecourts.gov.in/hcservices/

24. Since the cost / compensation is the penalty for condoningdelay (certainly not a premium), this Court sitting in Revision,however directs the Respondents / Petitioners / Plaintiffs todeposit a further sum of Rs.1,000/- (in addition to the sum ofRs.1,000/- already deposited in lower court) to the credit of theSuit O.S.No.6494/1997 on the file of the VI Assistant Judge, CityCivil Court, Chennai within three weeks from the date of receipt ofcopy of this Order considering the facts and circumstances of thecase to prevent aberration of justice. It is open to the RevisionPetitioner / Defendant to receive the costs by filing necessarypayment out Application in the trial court in the manner known tolaw. Having regard to the facts and circumstances of the case, theparties are directed to bear their own costs in this revision.AsrSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The VI Assistant Judge, City Civil Court, Chennai2. The Record Keeper, VR Records, High Court, Madras.1 cc to Mr.A.Seshan, Advocate, SR.104291 cc to Mr.E.Prabu, Advocate, SR.10470ma (co)dv/7.3.Order inC.R.P.(NPD) No.586 of 2004