Madras High Court
Selvam vs Sivakasi Hindu Nadar Uravinmurai ...
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 05.07.2018
DELIVERED ON : 05.03.2019
CORAM
THE HON'BLE MR. JUSTICE M.V.MURALIDARAN
C.R.P. (MD) (PD) No.236 of 2015
A.P.R.Ponnusamy Nadar (died)
1.Selvam
2.Chinnapparaj
3.Anthoniammal
4.Soosai Manickam
5.A.Raveendran
6.A.Rajmohan
7.K.Krishnaveni
8.S.Jeyarathinam
9.A.Senbagavalli
10.P.Arjunan .. Petitioners
vs
Sivakasi Hindu Nadar Uravinmurai Mahimai Fund,
rep. by its Secretary Chidambara Nadar,
Sivakasi Nadar Lodge,
Virudhunagar District. .. Respondent
Revision filed under Article 227 of Constitution of India
against the order dated 09.12.2014 passed in I.A.No.188 of 2014 in
O.S.No.440 of 1989 on the file of the Additional District Munsif Court,
Srivilliputtur.
http://www.judis.nic.in
2
For Petitioners : Mr.V.Venkataseshan
For Respondent : Mr.S.M.Anantha Murugan
ORDER
This Civil Revision Petition has been filed by the petitioners against the order dated 09.12.2014 passed by the learned Additional District Munsif, Srivilliputhur in I.A.No.188 of 2014 in O.S.No.440 of 1989, wherein and whereby the learned Additional District Munsif allowed the petition filed by the respondent to condone the delay of 4625 days in filing petition to set aside the abatement of the suit.
2. The petitioners herein are the legal heirs of the sole defendant Ponnusamy Nadar and the respondent is the plaintiff in O.S.No.440 of 1989. The respondent has filed the suit for eviction of the original defendant from the suit property or in the alternative for recovery of possession and for recovery of rent arrears. The sole defendant died on 11.01.2001. Since his legal heirs were not brought on record within the time, the suit stands abated.
3. The respondent has filed I.A.No.188 of 2014 under Section http://www.judis.nic.in 3 5 of the Limitation Act to condone the delay of 4625 days in filing petition to set aside abatement of the suit alleging that the respondent had earlier filed a suit in O.S.No.564 of 1985 against Ponnusamy Nadar and also against the State for declaration of title and for permanent injunction in respect of the suit property. By the decree and judgment dated 30.6.1989, the said suit came to be decreed. Against which, two appeals being A.S.Nos.17 and 41 of 1990 were filed by the defendants therein before the Sub Court, Srivilliputhur, which ended in favour of the Government by a decree dated 25.09.1991. Aggrieved by the same, two Second Appeals being S.A.Nos.1732 and 1733 of 1992 were preferred by the petitioners and S.A.No.174 of 1993 was preferred by the respondent. By the common judgment dated 10.12.2013, this Court allowed the appeal preferred by the respondent and held that the respondent is entitled for declaration of title to the suit property.
4. According to the respondent, the sole defendant Ponnusamy Nadar died on 11.01.2001 and petitioners 2 to 5 and one Rajammal (since dead) are his legal heirs. The petitioners 6 to 10 are sons and daughters and the 11th petitioner is the husband of Rajammal, who died on 25.05.2003. According to the respondent, http://www.judis.nic.in 4 the petitioners are the legal heirs of the defendant against whom cause of action in the suit survives and therefore, they should have been brought on record in the suit within 90 days from the date of death of the sole defendant. Since, they were not impleaded within time, the suit stands abated.
5. The case of the respondent is that persons holding the position of office bearers of the respondent are in frequent change. Whenever the position of the suit was being enquired from the respondent's counsel, the counsel used to give a reply that the suit had been stayed under Section 10 of CPC and no progress could be done until the disposal of the Second Appeals. The learned counsel appearing for the sole defendant has not communicated the death of the defendant to the Court. The reason for not impleading the legal heirs of the deceased defendant only in the above said circumstances and there is no wilful negligence or deliberate inaction on the part of the respondent. According to the respondent, they have got fair chance of success in the suit. Therefore, the petitioners have to be brought on record as legal heirs of the sole defendant and the abatement has to be set aside by condoning the delay of 4625 days. http://www.judis.nic.in 5
6. Resisting I.A.No.188 of 2014, the third petitioner has filed the counter stating that the present petition has been filed by the incompetent person and on the said ground, the petition is liable to be dismissed. It is stated that in the Second Appeals filed by the parties, the death of the sole defendant was recorded and his legal heirs were brought on record. There is no sufficient cause for the delay and the respondent has no right to the suit property. Since there is no proper and convincing explanation for the delay, the petitioners prayed for dismissal of the petition.
7. The learned Additional District Munsif, Srivilliputhur allowed I.A.No.188 of 2014 on payment of cost of Rs.3,000/- payable to the petitioners herein on or before 8.12.2014, failing which the petition shall stand dismissed. Pursuant to the order of the Court, the respondent deposited the cost and the petition was allowed on 09.12.2014. Challenging the order of the learned Additional District Munsif, the petitioners have filed the present revision.
8. Assailing the order of the trial Court, the learned counsel for the petitioners contended that the trial Court erred in condoning the delay, which is deliberate, wanton and intentional one and in fact, http://www.judis.nic.in 6 the respondent has failed to give explanation for condoning such a long delay. He would submit that as a respondent who has lost in earlier proceedings in Second Appeal, he has not certain of his success in the Second Appeal and he did not care to proceed with the case even though legal heirs were on record in S.A.No.174 of 1993.
9. The learned counsel further submitted that the trial Court ought to have considered the fact that against the order dated 10.12.2013 passed in the Second Appeals, Review Application Nos.65 to 67 of 2015 have been filed and the same are pending for adjudication. According to the learned counsel, the trial Court misunderstood the concept of liberal approach and allowed the petitioner. Thus, prayed for setting aside the order of the trial Court. In support, the learned counsel relied upon the decisions in Perumon Bhagavathy Devaswom, Perinadu Village v. Bhargavi Amma (dead) by LRs and others, reported in (2008) 8 SCC 321; Ramnath Sao @ Ramnath Sahu and others v. Gobardhan Sao and others, reported in (2002) 3 SCC 195 and Rama Ravalu Gavade v.Sataba Gavadu Gavade (dead) through LRs. and another, reported in (1997) 1 SCC 261.
10. On the other hand, the learned counsel for the http://www.judis.nic.in 7 respondent, reiterating the findings of the trial Court, submitted that the respondent has shown sufficient cause for the delay and the delay of 4625 days to set aside the abatement is neither wilful, nor wanton on the part of the respondent. He would submit that the learned Additional District Munsif has accepted the sufficient causes and reasons submitted by the respondent and allowed the petition and proceeded in accordance with law.
11. The learned counsel further submitted that if the order of the trial Court is set aside and the revision is allowed, the respondent should file another suit for eviction of the petitioners and it would take more time. Since the claim of the petitioners was declined by the High Court, they want to enjoy their possession in the property by prolonging the present original suit in O.S.No.440 of 1989 and without clean hands and with an ulterior motive, the petitioners have filed the present revision and the same is not maintainable. Hence, the learned counsel prayed for dismissal of the revision.
12. I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.
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13. The point that arises for consideration is whether the trial Court was right in allowing the petition filed by the respondent seeking to condone the delay of 4625 days in filing petition to set aside the abatement of the suit.
14. The grievance of the respondent, there was an order of stay of operation of the suit till the disposal of the Second Appeals and that is the reason, they have not taken steps to implead the legal heirs of the sole defendant Ponnusamy Nadar. Since the Second Appeals were disposed of and also the death of the sole defendant was not informed by the defendant's side, the delay has occurred. As per law, it is the duty of the counsel on record for the deceased defendant to inform the Court about the death of the defendant Ponnusamy Nadar.
15. It appears that considering the grievance of the respondent, the learned Additional District Munsif allowed I.A.No.188 of 2014 condoning the delay of 4625 days. In its order, the learned Additional District Munsif has considered all aspects and the inability on the part of the respondent and also the order of the stay under Section 10 C.P.C. and accepted that the respondent has given acceptable and http://www.judis.nic.in 9 sufficient cause to condone the delay of 4625 days. It is seen that the learned counsel on record for the deceased sole defendant Ponnusamy Nadar had not intimated the death before the Additional District Munsif Court, Srivilliputhur enabling the respondent to take steps to bring on record the legal heirs of the deceased defendant.
16. In Perumon Bhagavathy Devaswom, Perinadu Village v. Bhargavi Amma (dead) by LRs and others, supra, the Hon'ble Supreme Court held:
“8. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows :
(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case.
The words `sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to http://www.judis.nic.in 10 applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be http://www.judis.nic.in 11 diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.”
17. In Ramnath Sao @ Ramnath Sahu and others v.
Gobardhan Sao and others, supra, the Hon'ble Supreme Court held:
“Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so http://www.judis.nic.in 12 when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”
18. In the case of Rama Ravalu Gavade v.Sataba Gavadu Gavade (dead) through LRs. and another, supra, during the pendency of the appeal, one of the parties died. In that case, the High Court had refused to condone the delay in making an application for setting aside abatement and set aside abatement, but this Court condoned the delay, set aside abatement and directed the appellate court to dispose http://www.judis.nic.in 13 of appeal on merit observing that the High Court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer.
19. It is to be noted that in the case of N.Balakrishnan v. M.Krishnamurthy, reported in (1998) 7 SCC 123, the Hon'ble Supreme Court held:
“9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the http://www.judis.nic.in 14 cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.”
20. It is settled that the provisions of the Code are with a view to advance the cause of justice. Of course, the Court in considering whether the party has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the party is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.
21. In a catena of decisions, the Hon'ble Supreme Court has taken lenient view in setting aside the abatement to bring the legal heirs of deceased person and condoned the delay to set aside the abatement.
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22. Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
23. Under Section 5 of the Limitation Act, it is only sufficiency of the cause that matters and not the length and breadth of the delay. While dealing with the Section 5 application, the question of diligence or bona fides are to be considered.
24. It is settled law that length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or http://www.judis.nic.in 16 perverse.
25. In Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others, reported in 2013 (5) CTC 547 (SC) : 2013 (5) LW 20, the Hon'ble Supreme Court held that there should be a liberal, pragmatic, justice oriented, non- pedantic approach while dealing with an Application for condonation of delay. The Hon'ble Supreme Court referred to its earlier judgments in G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142; O.P. Kathpallia v. Lakhmir Singh (dead) and others, 1984 (4) SCC 66; State of Nagaland v. Lipok AO and others, 2005 (3) SCC 752; New India Insurance Co. Ltd. v. Shanti Misra, 1975 (2) SCC 840; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, 2010 (5) SCC 459, which declared that the Court should be liberal in dealing with condone delay petition. In paragraphs 15 and 16, the Hon'ble Supreme Court held thus:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to http://www.judis.nic.in 17 remove injustice.
(ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to en capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
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(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a) An Application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the http://www.judis.nic.in 19 principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters."
26. In Esha Bhattacharjee, supra, the Hon'ble Supreme Court referred to some of its Judgments regarding Law of Limitation. It may be useful to extract paragraphs 10, 11 and 12, which read as follows:
"10. In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, 2010 (5) SCC 459, where a Two-Judge Bench of this Court has observed that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the http://www.judis.nic.in 20 rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the Law of Limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate.
11. In Improvement Trust, Ludhiana v. Ujagar Singh and others, 2010 (6) SCC 786, it has been held that while considering an Application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves.
12. A reference to the principle stated in Balwant Singh (dead) v. Jagdish Singh and others, 2010 (8) SCC 685 would be quite fruitful. In the said ca se the Courtreferred to the pronouncements in Union of India v. Ram Charan, AIR 1964 SC 215; P.K. Ramachandran v. State of Kerala, 1997 (2) CTC 663 (SC) : 1997 (7) http://www.judis.nic.in 21 SCC 556; and Katari Suryanarayana v. Koppisetti Subba Rao, 2009 (4) CTC 286 (SC): 2009 (11) SCC 183 and stated thus:
25. We may state that even if the term sufficient cause has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness as it is understood in its general connotation.
26. The Law of Limitation is a substantive law and has definite consequences on the ri ght andobligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive http://www.judis.nic.in 22 the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
27. In Maniben Devaraj Shah v. Municipal Corporation of Brihan Mumbai, reported in 2012(5) SCC 157, the Hon'ble Supreme Court held thus:
“24. What colour the expression ”sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
(emphasis supplied)
28. In Maniben Devaraj Shah, supra, the Hon'ble Supreme Court upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High http://www.judis.nic.in 23 Court which had condoned the delay of more than seven years. In the present case, the delay is 4625 days and the said delay is only to set aside the abatement caused due to the death of the sole defendant Ponnusamy Nadar.
29. As stated supra, in the case on hand, the explanation for the delay given by the respondent is acceptable and after satisfying the reasons for the delay, the trial Court allowed the petition on payment of costs. This Court is in full agreement with the liberal approach adopted by the trial Court in condoning the delay of 4625 days in filing petition to set aside the abatement in the facts and circumstances of the case.
30. In view of the foregoing discussions, this Court is of the opinion that in the facts and circumstances of the present case, the trial Court was justified in allowing I.A.No.188 of 2014 condoning the delay of 4625 days and setting aside the abatement. This Court finds no infirmity in the order of the trial Court impugned in this revision.
No valid grounds have been made out to interfere with the order of the trial Court and thus, the Civil Revision Petition is liable to be dismissed. http://www.judis.nic.in 24
31. In the result, the Civil Revision Petition is dismissed. No costs.
05.03.2019
vsv
Index : Yes/No
To
The Additional District Munsif,
Srivilliputhur.
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25
M.V.MURALIDARAN, J.
vsv
Pre-delivery order made in
C.R.P.(MD) (PD) No.236 of 2015
05.03.2019
http://www.judis.nic.in