Madras High Court
Kavitha vs Leelavathy on 6 November, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/11/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD)(MD)No.2237 of 2012 and M.P.(MD)No.2 of 2012 Kavitha .. Petitioner Vs Leelavathy .. Respondent Petition filed under Section 115 of C.P.C., against the order passed in I.A.No.598 of 2011 in O.S.No.658 of 2003 on the file of the I Additional District Munsif, Trichy, dated 10.10.2011. !For petitioner... Mr.C.Vakeeswaran ^For respondent... Mr.P.Arun Jayatram :ORDER
This Revision is filed as against the order passed in I.A.No.598 of 2011 in O.S.No.658 of 2003 on the file of the I Additional District Munsif, Trichy, dated 10.10.2011.
2.The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Revision would run thus:
The Revision Petitioner herein filed the suit in O.S.No.658 of 2003 seeking injunction in respect of the suit lane. As no written statement was filed the defendant remained ex-parte and ex-parte decree was passed on 13.11.2007. The defendant filed an application to get the ex-parte decree set aside. However, that application was returned for complying with certain directions. The said application was not re-presented within the time granted by the Lower Court. Therefore, I.A.No.598 of 2011 was filed to get the delay of 779 days condoned in representing the said application, to get the ex-parte decree set aside. After hearing both the sides, the Lower Court condoned the delay in re-presentation and numbered the application to set aside the ex-parte decree which is now pending. Being aggrieved by and dissatisfied with the same, the Revision Petitioner has filed the Revision on various grounds.
3.Learned counsel for the petitioner / plaintiff would pyramid his argument by highlighting that absolutely there was no reason much less sound reason for condoning the huge delay of 779 days. The fact remains that the defendant-Leelavathi who is the respondent herein had filed one another suit for declaration and injunction concerning the same suit property. In that suit, Leelavathi was cross-examined with reference to the application filed by Leelavathi to get the ex-parte decree set aside and the return of that application. Even after that, she failed to take a cue and swing into action in prosecuting the earlier proceedings. In such a case, the Lower Court is totally wrong in condoning such huge delay.
4.Per contra, the learned counsel for the respondent/Leelavathi would submit that it is not the mistake of Leelavathi in not re-presenting the application to get the ex-parte decree set aside, but her Advocate could not get the application processed because of certain difficulties. The Advocate was shifting his office from one place to another. Giving liberty to the litigant to participate in the proceedings, which is of paramount importance. Relying on the same, the Lower Court properly and correctly exercised the judicial discretion warranting no interference and there is no perversity or illegality in that order.
5.The point for consideration is as to whether the Lower Court is justified in condoning the delay in re-presenting the petition.
The Point:
6.I would like to point out that at the outset, normally condonation of delay in re-presenting the matter is between the Court and the parties concerned. However, if the delay is huge as in this case, notice to the respondent also is contemplated in the interest of justice. In this case, the learned Judge concerned, ordered notice to the other side and after hearing both the sides, he condoned the delay at a cost of Rs.500/- (Five Hundred) payable by Leelavathi to Kavitha.
7.I recollect and call up the legal maxims
(i)Vigilantibus et non dormientibus jura subvenium. (The laws and the vigilant, not those who sleep.) and
(ii)Interest reipublicae ut sit finish litium. (It is in the interest of the State that there be a limit to litigation.), which would exemplify and demonstrate that a litigant should be diligent in prosecuting the matter and there should be end of litigation as otherwise, perpetually litigation would be pending which would not be healthy for a civilized society. The dispute is with regard to lane and the suit for injunction was decreed ex-parte. Within the time, the application was filed to get the ex-parte decree set aside. Thereafter, there was return of the application for complying with certain directions. I would observe that in cases of this nature, the responsibility is on the Advocate rather than on the party, who cannot pursue the matter to the extent of complying with certain directions in re-presenting the matter. It is purely the job of the Advocate to re-present the application without any mistakes and also complying with the directions of the Court. A bare reading of the affidavit would reveal that the Advocate concerned shifted his office from one place to another and because of that alone the delay ensued. The Lower Court being the best Court for considering this factual point, thought it fit to condone the delay, however, by awarding a meagre cost.
8.Under these circumstances, I could see no perversity or illegality in the discretion exercised by the Lower Court, but the cost imposed by the Lower Court is pococurante one and it should be enhanced in view of the fact that in a parallel suit filed by Leelavathi, she was put on notice about the factum of she having filed the I.A., for getting the ex-parte decree set aside. Hence, I would like to enhance the cost from Rs.500/- to Rs.5000/- (Five Thousand) payable by Leelavathi to Kavitha on or before 26.11.2012. If there is no compliance with this direction, the I.A. will stand dismissed automatically. The Lower Court also should do well to see that the I.A. filed for setting aside the ex-arte decree is disposed of within a period of one month.
9.The Civil Revision Petition is disposed of accordingly. Consequently, M.P.(MD)No.2 of 2012 is closed. No costs.
KM To The I Additional District Munsif, Tiruchirappalli.