Madras High Court
Padma vs Standard Literature Company (P) Ltd on 23 February, 2010
Author: S. Palanivelu
Bench: S. Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2010
CORAM:
THE HONOURABLE MR. JUSTICE S. PALANIVELU
C.R.P.(NPD) No.170 of 2009
and M.P.No.1 of 2009
1. Padma
2. Ashok
3. Banu Ragunathan
(R2 and R3 are represented
by their Power Agent R1) ... Petitioners
Vs
Standard Literature Company (P) Ltd.,
rep. By its Manager
No.16, Ritchie Street,
Chennai 600002. ... Respondent
Civil Revision Petition has been filed against the order dated 26.11.2008 made in M.P.No.440 of 2008 in R.C.A.Sr.No.9052 of 2008 on the file of VII Court of Small Causes at Chennai.
For Petitioner : Mr.B. Kumar
Senior Counsel for
Mr.R. Loganathan
For Respondent : Mr. V. Raghavachari
O R D E R
1. In the affidavit filed in support of M.P.No.440 of 2008 in R.C.A.Sr.No.9052 of 2008, the following are stated:-
1.(a) The deponent is the Manager of the appellant company and as such he is acquainted with the facts of the case. He is authorised to file the affidavit on behlaf of the appellant. The respondents filed R.C.O.P.No.1332 of 2002 before XI Small Causes Court for fixation of fair rent. Rs.67,951/- has been fixed as fair rent erroneously without appreciaiton of evidence. Hence the appellant has preferred the appeal.
1.(b) Immediately after the orders were passed in R.C.O.P., the appellant's counsel filed copy application in C.A.No.13138 of 2006. Stamp papers were called for and on account of non-deposit, it was struck off on 20.9.2006. Due to oversight, the Advocate's Clerk has failed to noticethe call for board. Thereafter an application was made in M.P.No.236 of 2007 to restore the C.A. which was struck off. But the learned judge has dismissed the M.P. without looking into the fact that it will affect the appeal remedy of the aggrieved person.
1.(c) The appellant has filed appeal against the dismissal order in R.C.A.No.286/2007 and the same is pending before VII Small Causes Judge for adjudication. In the meantime, another copy application was filed and the copies of the order were obtained on 8.4.2008 and the appellant was advised to file appeal along with a petition to condone the delay in filing the same.
1.(d) When the deponent was informed that the copies were made ready, he was away on business tour, hence he could not file the appeal immediately. He returned to Chennai on 24th April, completing his business tour and rushed to his counsel on 25th. At that time he was advised to file the appeal along with petition to condone the delay of 240 days. The delay in filing the appeal is neither wilful nor wanton and the same may be condoned.
2. In the counter filed by the landlords the following are stated:-
2.(a) In the petition it is not stated as to how many days delay in filing the appeal. The reasons assigned in the affidavit are not genuine. After setting out the factum of filing R.C.A.No.286 of 2007 which was dismissed on 25.8.2008 and the restoration application was pending consideration, the appellant submitted that in the mean time another copy application was made and copies were ready on 8.4.2008.
2.(c) When the order was passed by the Rent Controller in R.C.O.P.No.1332 of 2002 on 28.3.2006, the appellant ought to have filed the appeal on the first week of September 2006. From 8.9.2006 till 25.4.2008, the appellant has to explain the cause for the delay and if the days are counted, it would be 596 days. The delay attempted to be explained is, only after the receipt of copy till 24.4.2008.
2.(d) The appellant is a company and not an individual. The deponent is manager. It is not known as to how the Manager has capacity to represent the company which ought to have been represented by its director as per the Companies Act. He has no capacity to represent the company. The appellant has not furnished the date of application after the copy application was struck off. The circumstances would go to show that the appellant was fully conscious of its right to file appeal, but did not file the same for years together. There is no sufficient cause for condonation of delay. The delay has not been explained. Hence the petition may be dismissed.
3. After hearing both parties, the learned VII Judge, Small Causes Court, Chennai allowed the application on condition that the petitioner shall pay Rs.3,000/- as cost to the landlord on or before 11.11.2008. Aggrieved against the said order the landlords are before this Court.
4. The Court below has recorded findings that the petitioner has stated valid reasons for the delay in the affidavit, that there is a provision to condone the delay, that if the petition is dismissed, the chance of filing the appeal, challenging the R.C.O.P. order would be denied to the petitioner and that a chance must be given to him to file an appeal.
5. The order of the rent controller was passed on 28.3.2006 and the appeal should have been preferred within the statutory period. The petitioner has filed copy application and stamp papers were called for. Since they were not deposited, the copy application in C.A.No.13138 of 2006 was struck off. Hence, he filed an application in M.P.No.236 of 2007 to restore the said copy application which was also dismissed. So, he preferred appeal in R.C.A.No.286 of 2007 and by VII Small Causes Court, Chennai, the appeal was also dismissed on 5.9.2008 on merits and there was no further proceedings with respect to the order of dismissal in the said appeal. It is observed therein by the Appellate Authority that the averment that due to oversight and work pressure, the fact of calling for the stamp papers was unnoticed, is not believable and there was no bonafide in the affidavit.
6. The main reason averred in the affidavit is that when the respondent was informed that the copies were ready, he was away on business tour and he returned to Chennai on 24th April. After filing of R.C.A.No.286 of 2007, the petitioner filed another copy application and the copies were made ready on 8.4.2008. The petition for condoning the delay appears to have been filed on 25.4.2008. It transpires from the allegations in the affidavit in paragraph 5 that the deponent had to explain the delay of the period between 8.4.2008 and 25.4.2008 in filing the appeal on receipt of the copies of judgment and decree, obtained after filing of second copy application. Secondly, the affidavit is silent with regard to the period of delay between the period from the date of striking off of the copy application and the date of filing this present petition on 25.4.2008. No doubt, an appeal was filed in R.C.A.No.286 of 2007, but it had suffered dismissal. Hence the petitioner is bound to explain the delay from 20.09.2006, the date of striking off of C.A.No.13138 of 2006.
7. Mr.B. Kumar, the learned Senior Counsel appearing for the petitioners/landlords would place reliance on the judgment of the Apex Court in 2008 (5) CTC 663 [Pundlik Jalam Patil (D) by Lrs. v. Exe. Eng. Jalgaon Medium Project and another] in which Their Lordships have held as follows:
"12. ... ... ... It is true that the power to condone the delay rests with the Court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior Court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles . In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court.
... ... ... ... ... ...
... ... ... ... ... ...
23. Statutes of limitation are sometimes described as 'statutues of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainity; some kind of limitation is essential for public order. This Court in Rajender Singh and others v. Santa Singh and others, 1973 (2) SCC 705, has observed:"the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches." in Motichand v. Munshi, 1969(2) SCR 824, this Court observed that this principle is based on the maxim "interest republicae ut sit finis litum", that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression.
It needs to restatement at our hand that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. The are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
8. He also cites a decision of this Court in 1989 (1) L.W. 214 [M/s. White Borthers, represented by T.C. Somasekar, Proprietor v. G. Kailasam] in which the finding by the Court below that the petition for condoning the delay was like with a view to protract the proceedings, was upheld.
9. The learned counsel for the respondent Mr. V. Ragavachari in support of his contention would cite decision of this Court in MANU/TN/0605/2008 [M. Ramasamy Gounder v. S. Karuppathal], in which 2 decisions of this Court have been referred. They are as follows:
1. 2007(4) L.W. 639 [R. Jacob v. C. Prabakar] "If the delay of this nature is to be condoned, valuable right accrued to the plaintiff over years back would be unsettled. At one point or other, there has to be a finality of litigation. Ends of justice do not mean favour to the applicant at the cost of affecting the valuable right accrued to the opposite party."
2. 2007 (2) CTC 643 [Jayaraman.G. v. Devarajan] "Discretion must not be exercised in an arbitrary or vague manner but must be exercised with vigilance and cirumspection. Delay cannot be condoned as matter of judicial generosity. Right accrued to other side ought to be kept in view while considering plaint relating to affording opportunity to advance substantial justice."
10. In MANU/TN/0068/2009 [S.S. Jain Singh (Mambalam) Trust rep by its Secretary Mr.J. Kalyan Chand v. Arulmighu Bashyakar Adichenna, Kesava Perumal Thirukoil, rep by its Executive Officer, Arulmighu Kothandaramar Temple], this Court has extracted the ratio laid down by the Apex Court which is as follows:
"3. The learned counsel for the revision petitioner would contend that the petitioner shall not be allowed to suffer for no fault on him. In support of this contention the learned counsel for the revision petitioner would rely on a decision of this Court in MANU/TN/0287/2008 [Adhikesavan v. Kalavathi]. The learned counsel also relied on MANU/SC/0573/1998 [N. Balakrishnan v. M. Krishnamurthy], wherein the ratio decidendi laid down by the Honourable Apex Court in a case of similar nature, runs as follows:
Rules of limitation are not meant to destroy the right parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of leagal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wated time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
11. In a decision reported in MANU/TN/0078/2009 [S. Ramalingam v. Subbulakshmi Ammal] the learned judge has culled out a portion of a Division Bench decision of this Court in Mohammed Aslam v. C.N.A. Gowdhaman MANU/TN/0471/2005 which goes thus:-
"Equally, we are conscious of the fact that the length of delay is no matter, and acceptability of the explanation is the only criteria. Some times, the delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases, delay of a very long range can be condones as the explanation therefor is satisfactory. In every case of delay, there may be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack the mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should not lean towards acceptable of the explanation. We are also aware that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. Now, even the higher Court of this land have interpreted that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice."
12. In view of the above said settled position, the party on whom the burden of explaining the delay rest, shall show sufficient cause for the delay to the satisfaction of the Court. If any right accrues to other party by lapse of time, the delay could not be condoned so as to defeat such rights. The discretion in the matter of condonation of delay shall be exercised judicially and judiciously. The observations in Pundlik Jalam Patil's case (supra) go to the effect that everybody is presumed to know law. It is the duty of the defeated party to prefer appeal before the Court of appeal in time. The object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. After the dismissal of R.C.A.No.286 of 2007 on 5.9.2008, the delay period from 20.9.2006 uptil 25.4.2008 has to be explained. The said dismissal order operates against present claim of this respondent. The reasons for the delay has not been property pleaded and explained by the respondent/tenant. No sufficient cause has been shown before the Court. The delay has not been satisfactorily explained. Hence, the order challenged before this Court warrants interference, which has to be set aside and it is accordingly set aside. The petition deserves to be allowed.
In fine, the Civil Revision Petition is allowed. M.P.No.440 of 2008 in R.C.A.Sr.No.9052 of 2008 is dismissed. No costs. Connected M.P. is closed.
23.02.2010.
Index : yes Internet : yes To The VII Judge, Court of Small Causes, Chennai. S. PALANIVELU,J. ggs Order in: C.R.P.(NPD) No.170 of 2009 and M.P.No.1 of 2009 23.02.2010.