CORAMTHE HONOURABLE MR v. Mr.C.Santhoshkumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 04.12.2007CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRP.NPD.No.611 of 2004Mr.V.Senthilkumaran .. Petitioner/Plaintiff/PetitionerVsMr.C.Santhoshkumar .. Respondent/Defendant/RespondentPetition filed under Section 115 of Code of Civil Procedure againstthe fair and decreetal order passed in I.A.No.676/2003 in O.S.No.- of2003 on the file of the learned Principal Sub-Judge, Virudhachalam dated23.06.2003.For Petitioner :Mr.P.V.RangarajanFor Respondent [served]:No appearanceORDERThe above Civil Revision Petition has been filed against the orderdated 23.06.2003 in I.A.No.676/2003 in un-numbered O.S.No.- of 2003passed by the learned Principal Sub-Judge, Virudhachalam.2.The civil revision petitioner herein is the plaintiff in un-numbered O.S.No.- of 2003 on the file of the learned Principal Sub-Judge, Virudhachalam.3.The civil revision petitioner/plaintiff has filed I.A.No.676/2003praying for condonation of delay of 565 days in representing the plaint.Admittedly, the suit is filed for recovery of sum of Rs.95,193.25against the defendant and the revision petitioner/plaintiff/petitionerhas affixed deficit Court fee while filing the plaint before the TrialCourt. It appears that 15 days time was granted by the Trial Court forpaying the deficit Court fees. In the affidavit in I.A.No.676/2003filed by the revision petitioner/plaintiff/petitioner, it is averredthat the revision petitioner was not well and he could not get moneyfrom outside also and therefore, he was not in a position to pay thedeficit Court fee and to represent the plaint before the Trial Court.In that process there is a delay of 565 days in representing the plaintbefore the Court below.4.The respondent/defendant/respondent has filed a counter inter-alia stating that the reason assigned for 565 days delay forrepresenting the plaint is not acceptable and that the petition is to bedismissed with cost. https://hcservices.ecourts.gov.in/hcservices/

5.The learned Principal Sub Judge, Virudhachalam, in his orderdated 23.06.2003, passed in I.A.No.676/2003 in un-numbered O.S.No.- of2003 has observed that the revision petitioner/plaintiff/petitioner hasnot furnished details in the affidavit like the date on which the plaintwas filed, on what date the said plaint was returned and the date ofrepresentation etc., and came to the conclusion that the reason assignedfor condonation of delay in representing the plaint is not to beaccepted and accordingly dismissed the said application.6.As against the said orders passed by the learned Principal SubJudge, Virudhachalam, I.A.No.676/2003 in un-numbered O.S.No.- of 2003dated 23.06.2003, the revision petitioner/plaintiff/petitioner haspreferred this civil revision petition.7.It is an accepted principle that in condonation of delay matters,a liberal approach is to be made by law courts. It is to be rememberedthat refusing to condone the delay in any matter can result in ameritorious matter being thrown out at the initial stage and cause ofjustice being defeated. Per contra, the maximum that can happen is thatthe cause would be decided on merits after hearing the parties, when thedelay is condoned. In these matters a pedantic approach should not bemade and when substantial justice and technical considerations arepitted against each other, cause of substantial justice deserves to bepreferred for the other side cannot claim to have a vested right ininjustice being done because of non-deliberate delay. As a matter offact, a party does not stand to benefit by adopting dilatory tactics.On the other hand, he runs a serious risk. It is to be pointed out thatjudiciary is respected not on account of its power to legalize injusticeon technical grounds but because it is capable of removing injustice andas expected to do so.8.Learned counsel for the revision petitioner/plaintiff/petitionerrelied on the decision reported in 1978 [1] SCC 483 between INDIANSTATISTICAL INSTITUTE V. M/S.ASSOCIATED BUILDERS AND OTHERS, wherein itis observed as follows:-"Civil Procedure Code [Act 5 of 1908] – Section 148 –Power of Court to excuse delay in paying Court fee.Limitation Act, 1963 – Section 5 – Delay in re-presentation of petition after rectifying defectspointed out by Court – Jurisdiction of Court.Practice – Objections to award filed in time but withdefects – Whether could be considered as not filed atall." https://hcservices.ecourts.gov.in/hcservices/

9.He also relied on 2002 [3] CTC 22 between BHUVANESWARI ANDR.ELUMALAI wherein, it is held as follows:-"Code of Civil Procedure, 1908, sections 151,149 and148- Plaint filed for recovery of money returned forcertain compliances - Plaintiff represented papers withdelay of 457 days – plaintiff filed petition undersection 151 to condone delay in representation and alsoapplication for condoning delay in payment of deficitCourt fee - Both application were filed under section151 of Code of Civil Procedure – Order passed by Courtgranting time for representation of plaint isadministrative order and not judicial order – Petitionto condone delay in representation need not be undersection 148 and could be under 151 of code of CivilProcedure – Order of Trial Court refusing to condonedelay set aside and delay condoned with direction thatplaintiff is not entitled to interest for period ofdelay if he succeed in suit.Practice and procedure:- Mere quoting of wrongprovisions of law will not entail in dismissal ofpetition.Delay in presentation:- Order passed by Court returningpaper for compliance of certain returns isadministrative order and not judicial order."10.On the side of the revision petitioner/plaintiff/petitioner,reliance was placed on AIR 1987 SC 1353 between, COLLECTOR, LANDACQUISITION, ANANTNAG V. MST.KATIJI AND OTHERS, wherein it is held that:“[B]Limitation Act [36 of 1963], S.5 – Condonation ofdelay – Courts should adopt liberal approach – Reasonsfor adopting such approach stated.”11.Learned counsel for the revision petitioner/plaintiff pressedinto service, another decision reported in 2000 AIHC 3227 between MEHARSINGH ALIAS MEHAR LAL AND OTHERS V. STATE OF H.P., wherein it isobserved that ‘it cannot be disputed that as per section 149 C.P.C., theCourt of law has discretion, at any stage to allow an individual to makegood the deficit court fee prescribed for any document by the law and onsuch payment, the said document shall for the same validity and effectas if such fee was paid in the first instance. Discretion is to beexercised by a Court of law in accordance with established judicialprinciples and the same cannot be claimed as a matter of right. Thediscretion in this regard should be exercised liberally in favour of aparty except in cases of mala fide or similar reasons resulting in greatinjustice to the opposite side. It cannot be gain said that as persection 149 CPC there is a power on the High Court to exercise the samein order to do justice to a party where the failure has occasion not dueto his fault’. https://hcservices.ecourts.gov.in/hcservices/

12.In 1993 TNLJ 375 between Y.CUSBAR V. K.SUBBARAYAN it is heldthat ‘any delay in representation matter, court has to take care to seethat justice does not suffer in such cases and even if there is unduedelay in representation it can be compensated by awarding costs’.13.As far as the present case is concerned, this court is of theconsidered view that the details like [1]on what date the plaint wasfiled; [2]on what date it was returned; [3]on what date it wasrepresented etc., were not mentioned in the affidavit by the revisionpetitioner/plaintiff/petitioner in I.A.No.676/2003, as found by theCourt below are not correct and the crux of the matter to be looked intoby the court is whether delay of 565 days in representing the plaint isto be condoned or not and to find out whether any cause much less asufficient cause was made out by the revisionpetitioner/plaintiff/petitioner.14.In as much the term ‘sufficient cause’ requires liberalapproach, this Court is of the considered view that the present CivilRevision Petition needs to be allowed since substantial justice is to bepreferred so that the matter is not thrown out at the early stage itselfand also to avoid any injustice and therefore, the reasons assigned inthe affidavit by the revision petitioner that he could not get moneyfrom outside, not well etc., are accepted by this court. Strictlyspeaking, delay in representation matters are between the applicant andthe Court and a liberal views are to be taken in condonation of delaymatters.15.In that view of the matter, by taking a liberal approach, thiscourt allows the Civil Revision Petition and the orders passed by thelearned Principal Sub Judge in I.A.No.676/2003 in un-numbered O.S.No.-of 2003 is hereby set aside in the interest of justice. However, thereshall be no order as to costs. The Civil RevisionPetitioner/plaintiff/petitioner is granted three weeks time from thedate of receipt of a copy of this order to pay the deficit court feebefore the trial court.apSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The Principal Sub Judge, Viruthachalam.2.The Record Keeper, V.R.Section, High Court, Madras.+1 cc to Mr.P.V.Rangarajan, Advocate Sr.No.71685.SP(CO)dcp/10.12CRP.NPD.No.611/2004