THE HONOURABLE MR v. Parasuraman2.Yashoda3. Chinnapappa4.Jayalakshmi5.Saroja

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.01.2007CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIC.R.P.PD.No.731 of 2002Krishnamoorthy... Petitioner(2nd Petitioner)Vs.1.Parasuraman2.Yashoda3. Chinnapappa4.Jayalakshmi5.Saroja... RespondentsPRAYER : Civil Revision Petition filed under Section 115 of CPCagainst the order and decreetal the file of Principal DistrictMunsif, Ulundurpet in I.A.No.79 of 2001 in O.S.No.2 of 1995 dated05.03.2001.For Petitioner : Mr.V.RaghavachariFor Respondents: Mr.Girish Kumar forMr.T.Gandhi for R2 & R3- - - - -O R D E R The second plaintiff in the suit is the revision petitioner,which is filed under Section 115 of Code of Civil Procedure. Therevision arises from the order passed by the learned Trial Judge indismissing the application filed by the petitioner under Section 5 ofthe limitation Act for condoning the delay of 95 days in filing apetition to restore the suit dismissed on 17.08.2000. 2. The case of the plaintiff is that the first plaintiff beinga mortgager in a mortgage deed executed by him in favour of the firstdefendant Parasuraman, has filed the suit for redemption in theDistrict Munsif Court, Tirukovilur against the defendants 1 to 6 inO.S.No.430 of 1982 and after the trial, the trial court has passed apreliminary decree on 11.04.1984. The appeal filed against the saidpreliminary decree by the second and third defendants in A.S.No.144of 1984, was also dismissed on 04.08.1986. It was there after, thefirst plaintiff filed I.A.No.668 of 1988 in O.S.No.430 of 1982 for https://hcservices.ecourts.gov.in/hcservices/ passing final decree. In the mean time, since the first plaintiffparasuraman died, an application to condone delay, as well as to setaside abatement was filed by the second plaintiff along with thepetition to implead him as a legal heir and ultimately, the petitionswere allowed. As against the said orders, the defendants 1 to 3 haveapproached this Court by filing C.R.P.Nos.647 to 649 of 1993 and thisCourt by an order dated 13.11.2000 has dismissed the revisions. Inthe mean time the suit in O.S.No.430 of 1982 on the file of theDistrict Munsif Court, Thirukovilur was transferred to the PrincipalDistrict Munsif Court, Ulundurpet and was renumbered as O.S.No.2 of1995. 3. However, the final decree petition came to be dismissed bythe Trial Court on 17.08.2000 on the basis that the petitioner wasunable to produce the order from the High Court, after the High Courtdismissed the C.R.P. as stated above on 13.11.2000. The petitionerhas met his counsel at Madras and it was only after receiving thesame on 18.12.2000 from the counsel at Madras, the petitioner came toknow about the dismissal of the revision. The petition to restorethe final decree application filed by the petitioner in I.A.No.79 of2001 in O.S.No.2 of 1995, which should have been filed within 30days, was filed after the delay of 95 days and it was to condone thesaid delay of 95 days, the application was filed under Section 5 ofthe Limitation Act and the Trial Court has dismissed the applicationagainst which the present revision is filed before this Court. 4. The order of the learned Trial Judge is assailed by theplaintiff on the basis that the facts of the case would show thatcogent reason has been given by the plaintiffs for the purpose ofexplaining delay especially in the circumstance that admittedly, therevision petition filed by the respondents have been pending beforethis Court and the same have been dismissed on 13.11.2000 and it ishis case it came to the knowledge of the petitioner only on18.12.2000, when he went to Madras to see the counsel and therefore,the delay has been explained properly. 5. It is also the case of the petitioner that in fact therevision petitioner/second plaintiff has examined himself as awitness to explain about the reason for the delay. It is his casethat when the above revisions were filed in respect of the ordersetting aside the abatement by defendants 1 to 3, there was in fact,an order of allowing of the revision by the High Court, since on therespondents side in the High Court who were the plaintiffs in thesuit there was no appearance and therefore, the C.R.P. was originallyallowed on 13.02.1998 and the petitioner admittedly has not chosen toproduce any order or suspending the said order but ultimately, theHigh Court has dismissed the revisions on 17.08.2000. The TrialCourt presumed as if, the petitioner was aware on the same date aboutthe dismissal of the C.R.P. and has not chosen to file the https://hcservices.ecourts.gov.in/hcservices/ application to restore the final decree application. 6. According to the learned counsel for the petitioner, whenadmittedly, the High Court has ultimately dismissed the revision inC.R.P.No.647 to 649 of 1993, filed by the defendants 1 to 3 on13.11.2000, it is only confirming the order of the Lower Court thatthe abatement of the suit was set aside and therefore, in theinterest of justice, the application for condonation of delay oughtto have been accepted, especially, when it is the petitioner’s cogentcase in evidence that the factum of the dismissal of the revisioncame to his knowledge, only after he met the counsel at Madras on18.12.2000. 7. The learned counsel would rely upon the judgement of theHon’ble Apex Court rendered in 1998(7) SCC 123 (N.Balakrishnan Vs.M.Krishnamurthy) to substantiate his contention that whileconsidering the application under Section 5 of the Limitation Act,for condonation of delay, even though it is discretionary, it is notthe length of delay which matters but acceptability of explanation isthe only criteria. 8. On the other hand, the learned counsel for the respondentswould contend that the first respondent, who was the first defendantdied on 23.06.2002 and therefore, the revision petitioner has nottaken any steps. While meeting the said contention, the learnedcounsel for the petitioner Mr.V.Raghavachari, would submit that whenonce preliminary decree in a suit has been passed, thereafter, order22 Rule 3 and 4 of Code of Civil Procedure has no application. Hewould also rely upon the judgement of the Hon’ble Supreme Court inAIR 1958 SC 706 to contend that if all the legal representatives arebrought on record and some are not served, there was no question ofabatement of suit or appeal, if the application under Order 22 Rule 4is not served. He would also rely upon the judgement of the PatnaHigh Court rendered in AIR 1962 PATNA 178 to substantiate hiscontention wherein in a case of suit for partition, after thepreliminary decree was passed Order 22 Rule 3 and 4 have noapplication in case of the death of the parties and the same isgoverned by Rule 10 Order 22. 9. On the other hand, the learned counsel for the respondentswould submit that the plaintiffs have not explained the delay of 95days in filing the application to restore the final decree petitionand therefore, the Trial Court is correct in the decision. 10. I have heard the learned counsel for the petitioner as alsothe learned counsel for the respondents and perused the entirerecords. 11. A reference to the entire record show that it is admitted https://hcservices.ecourts.gov.in/hcservices/ fact that the High Court has dismissed the revision filed inC.R.P.No.647 to 649 of 1993 by defendants 1 to 3 upholding thesetting aside of the abatement order and also impleading the parties.The question to be considered in this case is that while defendants 1to 3 was filed the said revisions before this Court, originally thisCourt has allowed the revision on 13.02.1998, since the respondentsin the revision namely the plaintiffs herein have not appeared. Itwas thereafter on application to set aside the said order, the sameappears to have been allowed by this Court and ultimately this Courtin the above C.R.Ps. has dismissed the same on 30.11.2000, whichremains an indisputed fact. While so, the question relating to theabatement of suit has come to an end. 12. But, on the other hand, the Trial Court has dismissed thefinal decree application on 17.08.2000 itself on the basis thatoriginally the above said revisions filed by defendants 1 to 3, wereallowed in the absence of the respondents therein, which order was ofcourse subsequently set aside. On this said facts and circumstances,it is only fair and natural that subsequently when this Court hasdismissed the revisions on 13.11.2000 about which according to theplaintiff he came to know only on 18.12.2000 and immediately,thereafter he filed the petition, in my considered view, thereasoning given by the learned Trial Judge in stating as if 95 daysdelay has not been properly explained, is uncalled for. After theadmitted dismissal of the revisions on 13.11.2000, it was the duty ofthe Trial court to consider the date for the purpose of deciding theapplication to restore the final decree petition. 13. Therefore, on the face of it, I do not think that thereasoning given by the learned Trial Judge in dismissing theapplication for restoration of final decree proceeding is proper.It is in this regard as rightly pointed by the learned counsel forthe petitioner necessary to consider the decision of the Hon’ble ApexCourt in framing certain guidelines regarding the discretion to beexercised in the court in condoning the delay in N.Balakrishnan Vs.M.Krishnamurthy reported in 1998(7) SCC 123 holding that it is theprimary function of the court to adjudicate the dispute between theparties to advance substantial justice and the rule of limitation arenot meant to destroy the rights of parties, since the same is foundedon the principles of public policy. The relevant portion of thejudgement of the Hon’ble Apex Court in this regard "11. Rules of limitation are not meant to destroy therights of parties. They are meant to see that parties donot resort to dilatory tactics, but seek their remedypromptly. The object of providing a legal remedy is torepair the damages caused by reason of legal injury. Thelaw of limitation fixes a lifespan for such legal remedyfor the redress of the legal injury so suffered. Time isprecious and wasted time would never revisit. During the https://hcservices.ecourts.gov.in/hcservices/ efflux of time, newer causes would sprout up necessitatingnewer persons to seek legal remedy by approaching thecourts. So a lifespan must be fixed for each remedy.Unending period for launching the remedy may lead tounending uncertainty and consequential anarchy. The law oflimitation is thus founded on public policy. It isenshrined in the maxim interest reipublicae up sit finislitium (it is for the general welfare that a period be putto litigation). Rules of limitation are not meant todestroy the rights of the parties. They are meant to seethat parties do not resort to dilatory tactics but seektheir remedy promptly. The idea is that every legal remedymust be kept alive for a legislatively fixed period oftime."14. In view of the above said facts, I do not think that it isnecessary to deal with the judgements referred to by the learnedcounsel for the petitioner in respect of the Order 22 Rule 3, 4 and10 of the Code of Civil Procedure. In view of the same the revisionpetition stands allowed and the order of the learned Trial Judgedated 05.03.2001 passed in I.A.No.79 of 2001 in O.S.No.2 of 1995 isset aside with a direction to the Trial Court to restore the finaldecree petition filed by the plaintiff in I.A.No.79 of 2001 inO.S.No.2 of 1995 and pass appropriate final judgement and decreeafter following the procedure within a period of 6 months from thedate of receipt of the copy of this order and report the same to thisCourt. No Costs. nbjSd/Asst. Registrar/true copy/Sub Asst.RegistrarTO1. THE PRINCIPAL DISTRICT MUNSIF, ULUNDURPET.2. THE SUB ASST. REGISTRAR,JUDICIAL DEPT, HIGH COURT, MADRAS[For watching the Report] 1 CC TO MR.V. RAGHAVACHARI, ADVOCATE SR 21941 CC TO MR.T. GANDHI, ADVOCATE SR 1876Predelivery order inC.R.P.PD.No.731 of 2002ntk(co)bp/29.1