Madras High Court
Periasamy vs Lakshmanan on 19 December, 2011
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 19.12.2011
Coram
The Honourable Mr.Justice R.SUDHAKAR
Civil Revision Petition (NPD) No.4728 of 2011
and
M.P.No.1 of 2011
Periasamy, ... Petitioner/Petitioner/
Defendant
vs.
Lakshmanan. ... Respondent/Respondent/
Plaintiff
This Civil Revision Petition is preferred under Section 115 of the Civil Procedure Code against the order and decreetal order dated 20.7.2011 passed in I.A.No.3440 of 2010 in O.S.No.317 of 2004 on the file of the Third Additional District Munsif, Kallakurichi.
For petitioner : Ms.V.Sasirekah.
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O R D E R
This Civil Revision Petition is filed challenging the order and decreetal order dated 20.7.2011 passed in I.A.No.3440 of 2010 in O.S.No.317 of 2004 on the file of the District Munsif, Kallakurichi.
2. The suit O.S.No.317 of 2004 filed on promissory note by the respondent for recovery of money was decreed ex parte on 14.3.2005. According to the revision petitioner on receipt of notice in R.E.P.No.271 of 2006 for auction came to know about the ex parte decree and thereafter he filed the I.A.No.3440 of 2010 under Section 5 of the Limitation Act for condoning the delay of 1813 days (i.e.) about 5 years. The said application came to be resisted by the respondent/ plaintiff.
3. In the said I.A.No.3440 of 2010, the Court below issued notice to the respondent herein on 15.12.2010. Thereafter, it was adjourned from time to time for filing counter. On 25.1.2011 counter has been filed. From 25.1.2011, it was adjourned from time to time for enquiry till March 2011. Thereafter on various dates at the request of the revision petitioner/defendant, the case was adjourned from time to time till 6.4.2011. On 6.4.2011 the revision petitioner was examined in chief and adjourned to 18.4.2011 for cross examination of P.W.1. On 18.4.2011, P.W.1 was cross examined. From April to June 2011, the matter was adjourned from time to time for further evidence of the revision petitioner. On 22.6.2011, the revision petitioner made endorsement stating that the petitioner's evidence is closed. Thereafter, the matter was adjourned from time to time for evidence of the respondent/plaintiff's side. On 29.6.2011, an endorsement was made by the respondent/plaintiff that there is no oral evidence. Thereafter, argument was heard on both sides on 6.7.2011. On 20.7.2011, the I.A.No.3440 of 2010 came to be dismissed by passing a detailed order holding that no proper independent evidence has been let in to explain the delay in filing the petition under Order 9 Rule 13 CPC. Further, the revision petitioner has received notice in the execution proceedings in the year 2007, but the delay condonation petition was filed in the year 2010. The court below relied upon the following decisions:-
(1)2008(3) CTC 697, (2)2009(5) CTC 48 and (3)2010(6) CTC to hold that sufficient cause has not been given and the delay has not been properly explained.
Challenging the same, the revision petition has been filed.
4. On going through the affidavit filed in I.A.No.3440 of 2010 for condondation of delay of 1813 days (i.e.) about five years and the orders passed by the court below, this court is not inclined to differ from the view taken by the court below for the following reasons:-
(1) The plea of suffering from paralysis is not proved by any medical records. No records have been shown before the court below or even before this Court.
(2) The enormous delay of five years have not been explained.
(3) In this case, the revision petitioner did not deny the service of notice. Therefore, it is necessary for the revision petitioner to explain the delay.
5. The plea that the revision petitioner was suffering from paralysis and therefore, he was unable to prosecute the matter in time does not appear to be bona fide. In this case, the respondent/plaintiff has obtained decree in the year 2005 and the matter is pending in execution stage. The prejudice that will be caused to the respondent/plaintiff will also be considered in a case of undue delay by the revision petitioner/defendant.
6. The recent decision of the Apex Court in Lanka Venkateswarlu (D) by Lrs. - vs. - State of A.P. and others reported in 2011- 3- L.W. 26 has clearly held that all discretionary powers, especially, judicial powers, have to be exercised within reasonable bounds known to law. The Court does not enjoy unlimited and unbridled discretionary power. It also holds that "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation, especially, in cases where the Court concludes that there is no justification for the delay. Paragraphs 17 and 26 which is relevant is extracted hereunder:-
" (17) .... Even though the Courts have power to condone the delay, it cannot be condoned without any justification. Such an approach would result in rendering the provisions contained in the Limitation Act redundant and inoperative."
"(26) We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", " Justice oriented approach", " substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers."
7. Considering the enormous delay which is about five years, this Court while concurring with the order of the court below, is not inclined to interfere as there is no error or infirmity in the order of the court below. It does not call for any interference.
8. Finding no merits, this Civil Revision Petition is dismissed at the admission stage. Consequently, connected miscellaneous petition is closed.
ts To The III Additional District Munsif, Kallakurichi