CORAMTHE HONOURABLE MR v. Pattammal2.R.Kamala3.M.Venkatesan4.M.Elumalai5.S.Alamelu6.Srinivasan7.Veerappan8.Parthasarathy9.Ayyappan10.Kuppammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 22.11.2007CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRP.NPD.No.808 OF 2004 & CMP.No.6502/2004K.M.Subramani .. Petitioner/1st defendant/1st respondentVs1.Pattammal2.R.Kamala3.M.Venkatesan4.M.Elumalai5.S.Alamelu6.Srinivasan7.Veerappan8.Parthasarathy9.Ayyappan10.Kuppammal .. Respondents/Plaintiffs/Petitioners11.R.Ravanammal12.R.Padmalakshmi .. Respondents/2 & 3 (11th,12th respondents given up)defendants/RespondentsPetition filed under Section 115 of Code of Civil Procedure againstthe fair and decreetal order dated 13.02.2004 made in I.A.No.15254/2003in O.S.No.2435/1997 on the file of the XI Assistant, City Civil Court,Chennai.For Petitioner:Mr.T.N.RajagopalanFor RR 1 to 10:Mr.R.M.SundarORDERThe above Civil Revision Petition has been filed against the orderdated 13.02.2004 in I.A.No.15254/2003 in O.S.No.2435/1997 passed by thelearned XI Assistant Judge, City Civil Court, Chennai.2.The revision petitioner is the first defendant/first respondentin O.S.No.2435/1997 and in I.A.No.15254/2003. The respondents 1 to 10herein are the plaintiffs/petitioners in Lower Court. Respondents 11and 12 were given up by the respondents/plaintiffs/petitioners on theground that they are not necessary parties to the present revision. https://hcservices.ecourts.gov.in/hcservices/

3.The respondents/plaintiffs/petitioners have filed an applicationin I.A.No.15254/2003 before the learned XI Assistant Judge, City CivilCourt, Chennai, under section 5 of the Limitation Act to condone thedelay of 989 days in filing the petition to restore the suit on file.It is represented that all the respondents/plaintiffs/petitioners in thesuit were represented by the sixth respondent/sixth plaintiff/sixthpetitioner as Power Agent. In the Interlocutory Application, the sixthrespondent/sixth plaintiff/sixth petitioner has filed an affidavitwherein it is specifically stated that he was not feeling well due toheart ailment and because of the said reason, he was unable to contacthis counsel in time and that he came to know that due to the non-appearance, the case was closed and dismissed for default on 06.11.2000and prayed for condoning the delay of 989 days in filing the restorationapplication in the main suit which was dismissed for default. Exceptthe reason that the sixth respondent/sixth plaintiff/sixth petitionerwas unwell due to heart ailment, there is no averment in the affidavitfiled by him as to when he came to know about the date of dismissal ofthe suit for default. The affidavit filed by the sixth respondent/sixthplaintiff/sixth petitioner is very bald and vague in this regard.4.In the counter affidavit filed by the Revision Petitioner/firstdefendant/first respondent, it is inter-alia mentioned that theinordinate delay of 989 days was not explained and there was nosufficient cause for condoning the delay and that the sixthrespondent/sixth plaintiff/sixth petitioner has not produced anydocumentary evidence in support of their stand. It is also furtherstated in the said counter affidavit filed by the revisionpetitioner/first defendant/first respondent before the Trial Court thaton 06.11.2000 when the suit in O.S.No.2435/1997 was posted finally fortrial, the plaintiffs/petitioners did not appear and the suit wasdismissed rightly for non-appearance.5.The learned XI Assistant Judge, City Civil Court, Chennai, haspassed a conditional order on 13.02.2004 stating that:-" the application will be allowed on payment of cost ofRs.2,000/- to the revision petitioner/firstdefendant/first respondent on or before 03.03.2004failing which the application shall stand dismissed.Call on 04.03.2004." 6.It is against this order, the present revision has been filed bythe revision petitioner/first defendant/first respondent.7.It is represented by the learned counsel for the respondentsherein that in the Lower Court, the cost of Rs.2,000/- was deposited tothe credit of the suit. According to the learned counsel for therevision petitioner/first defendant/first respondent, the order of thetrial court in allowing the Interlocutory Application to condone thedelay of 989 days in filing the application to restore the suit iscontrary to law and it suffers from material irregularity and that thetrial court has failed to note the Judgments reported in 2001 [3]M.L.J.500 and 2001 [2] M.L.J. 310. https://hcservices.ecourts.gov.in/hcservices/

8.It is the case of the revision petitioner that inspite of nodocument or medical certificate being produced by the respondents tocondone the huge delay of 989 days, the trial court was pleased to allowthe application conditionally.9.Learned counsel for the revision petitioner contends that thereare ten plaintiffs in the suit and it is not the case of the otherplaintiffs that all of them are suffering from ailments and wereprevented from filing a petition to restore the suit. Further, it isalso contended on behalf of the revision petitioner that the Trial Courterred in placing reliance on the decision reported in 1998 [2] CTC 533between BALAKRISHNAN AND M.KRISHNAMOORTHY, since the facts of thepresent case are different.10.Learned counsel for the revision petitioner drew the attentionof this Court that the learned Trial Judge has erred in his orderstating that the main suit is for partition and has proceeded on thatground whereas in reality, the suit is for declaration of the sale deedin favour of the petitioner was not valid and also for partition. Insupport of his contention, the learned counsel for the revisionpetitioner has produced a copy of the plaint before this Court and fromthe perusal of the said plaint, it transpires that the suit was laid fordeclaration that the sale deed dated 07.02.1992 executed by the learnedII Judge, Small Causes Court, Madras, in favour of the first defendantwas obtained by fraud and suppression of facts and not binding up on theplaintiffs or in the alternative for a declaration that the Sale deeddated 07.02.1992 obtained by the first respondent enure for the benefitof the legal heirs of the deceased K.R.Manicka Achari, viz., the fatherof the revision petitioner/first defendant/first respondent and secondlyto declare that the plaintiffs 1 to 6 are entitled to 6/8 share and theplaintiffs 7 to 10 are entitled to 1/8 share in the land comprised inO.S.No.1059 in R.S.No.3022/2 morefully described in the Schedule 'A' andto put the plaintiffs in possession of the respective shares by metesand bounds and also for directing partition of the house and buildingbearing Door No.6, Meeyan Sahib Street, Chepauk, Madras-5 morefullydescribed in Schedule 'B' by allotting 6/8 share to plaintiffs 1 to 6and 1/8 share jointly to plaintiffs 7 to 10.11.While allowing the I.A.No.15254/2003, the learned Trial Judgehas observed that "the right to seek partition will not be extinguishedby the delay in filing the petition to restore the suit and that thedeponent has not produced any documentary evidence in support of hisplea."12.Expatiating the submission that the I.A.No.15254/2003 has to bedismissed, learned counsel for the revision petitioner placed relianceon the decision in 2003 [2] M.L.J. 837 between P.PERUMAL Vs. MINORKUMARESAN S/O. P.PERUMAL, REPRESENTED BY HISMOTHER MRS.VENDAMMAL ANDANOTHER wherein this Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "[A]Limitation Act [36 of 1963], Sec.5-Sufficient cause-Applications filed for condonation of delay in settingaside the ex-parte decree-Applications dismissed-Revision preferred-It is true that the question ofcondonation of delay should be liberally considered-Facts disclose that the party against whom, ex-partedecree was passed, was aware of the proceedings-Sufficient cause not made out."13.He also cited decision in 2001 [2] M.L.J. 310 [VAJJIRAVELUASARI [DIED] AND OTHERS VS. ARULMIGHU SRI ARUNACHALESWARAR DEVASTHANAMBY ITS EXECUTIVE OFFICER, TIRUVANNAMALAI], wherein this court has heldas follows:"Civil Procedure Code [V of 1908], O.9.Rule 13 –Limitation Act [XXXVI of 1963], Sec.5 – Application toset aside ex-parte decree and application forcondonation of delay of 2062 days – Petitioner sayingthat he was not keeping well and could not appear beforecourt because of his deafness – No evidence to show thathe suffered from any illness that prevented him fromattending court for 2062 days – Application dismissed."14.Learned counsel for the respondents/plaintiffs/petitionerssupported the order passed by the learned Trial Judge and submits thatthe word “Sufficient Cause” has to be liberally construed and citeddecision in 2000 [1] CTC 769 between RAM NATH SAO @ RAM NATH SAHU ANDOTHERS AND GOBARDHAN SAO AND OTHERS wherein the Honourable SupremeCourt has inter-alia observed that “Courts have to strike balancebetween the effect or on parties to lis and that Court should notproceed with tendency of finding fault with cause shown and rejectpetition in over jubiliation of disposal drive and acceptance ofexplanation furnished should be rule and refusal exception more so andwhen no negligence, inaction or want of bona fide may be imputed todefaulting party”.15.It is true that in the affidavit filed by the sixthrespondent/sixth defendant/sixth petitioner in I.A.No.15254/2003 beforethe Lower Court, there is no whisper as to what dated the petitionerscame to know about the suit being dismissed for default and the saidaffidavit is very bald in nature.16.It is relevant to make a mention that refusing to condone thedelay can result in meritorious matter being thrown out at the initialstage and cause of justice being defeated. As against this, when thedelay is condoned, the highest that can happen is that the cause wouldbe decided on merits after hearing the parties. When substantialjustice and technical considerations are pitted against each other,cause of substantial justice deserves to be preferred for the other sidecannot claim to have a vested right in injustice being done because ofnon-deliberate delay. After all, the litigant does not stand to benefitby resorting to delay. Per contra, he runs a serious risk in theconsidered opinion of this court. Moreover, it is to be remembered that https://hcservices.ecourts.gov.in/hcservices/ judiciary 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.17.As far as the present case is concerned, even though sufficientcause has not been mentioned, in view of the decision of the Hon’bleSupreme Court reported in 2002 [1] CTC 769 between RAM NATH SAO @ RAMNATH SAHU AND OTHERS AND GOBARDHAN SAO AND OTHERS that Courts are totake a liberal view in these matters, * this court is of the view thatin order to deliver substantial justice to the parties and in as much asthe technicalities to be avoided by the law Courts and since theprocessual law is always subservient and is in aid of justice, theconditional order passed in the I.A.No.15254/2003 in regard to thepayment of cost of Rs.2,000/- does not suffer from any illegality orirregularity and setting in revision, this court refuses to interferewith the orders passed by the Court below and resultantly, the CivilRevision Petition is dismissed and the order passed by the Lower Courtis confirmed for the reasons assigned in this revision by this court.However, there shall be no order as to costs. Consequently, connectedmiscellaneous petition is also dismissed.apSd/- Asst. Registrar,Dt/-29.11.2007.* Corrected order as per order ofMVJ.Sd/-Asst. Registrar,Dt/-5.1.2008./true copy/Sub Asst. Registrar.To1. The XI Assistant Judge,]City Civil Court, Chennai.]2. -do- Through The Registrar,] To be substituted to the order City Civil Court, Chennai.] already despatched on 5.12.2007+1 cc to Mr.T.M.Rajagopalan, ]Advocate Sr.No.69700.]+1 cc to Mr.R.M.Sundar,] Advocate Sr.No.69506.]AKR(CO)dcp/29.11gp/7.1CRP.NPD.No.808/2004