Madras High Court
Duraisamy vs N.P.Murugesan on 16 April, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16.04.2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR CRP (NPD) No.1467 of 2013 and M.P.No.1 of 2013 Duraisamy .. Petitioner ..Vs.. 1. N.P.Murugesan 2. Elaiyappan 3. S.Krishnan 4. Subbayammal 5. Vadivelu 6. Eswari .. Respondents Prayer: This Civil Revision Petition is filed under Section 115 of Civil Procedure Code, to set aside the fair and final Order passed in I.A.No.85 of 2011 in Unnumbered Appeal on the file of the Principal District Judge at Erode dated 06.10.2012. For Petitioner : Mr.G.Gokul For Respondents : Mr.S.Kaithamalai Kumaran (For R1 to R3) O R D E R
Being aggrieved by the order and decreetal order in I.A.No.85 of 2011, dated 06.10.2012, refusing to condone the delay of 3220 days in preferring the appeal, the present revision petition has been filed.
2. Material on record discloses that a suit in O.S.No.170 of 1996 has been partly decreed on 28.02.2002. It is the case of the revision petitioner that he had engaged one Mr.V.Dhandapani, Advocate, to contest the suit. The written statement has been filed on 10.04.1997. Thereafter, the suit has been decreed. The appeal has been preferred with a delay of 3220 days.
3. In the supporting affidavit, the revision petitioner, has contended that after filing of the written statement, his counsel Mr.Dhandapani, did not intimate the stage of the suit. When he contacted his advocate, a reply was given to him that he would take care of the suit and thus, the revision petitioner, believed the words of his advocate. Only when the notice in E.P.No.171 of 2010, was served, he came to know that a decree has been passed by the learned 1st Additional Subordinate Judge, Erode. According to the revision petitioner, it was purely due to the fault of his counsel, in not intimating the stage of the suit, he was not aware of the decree and thus, the delay.
4. Opposing the said petition, the respondents/decree holders in their counter affidavit have submitted that the revision petitioner has entered into a sale agreement with the respondents 1 to 3 on 25.08.1994 for a sum of Rs.3,40,000/-. As he had failed to execute a sale deed, a suit in O.S.No.171 of 1996, was filed for specific performance of the contract, which was decreed, as early as on 28.02.2002. Based upon the decree, they also filed E.P.No.193 of 2004 to execute and register the sale deed. That apart, two petitions in E.P.Nos.171 of 2010, for delivery of possession and E.P.No.113 of 2009 for execution of the sale deed were also filed. In all the abovesaid petitions, the revision petitioner has received the notice and remained exparte. Thereafter, the sale deed has also been executed in favour of the respondents and with a view to drag on the proceedings the revision petitioner has now engaged another counsel, who has filed I.A.No.85 of 2011, in the first appeal with a delay of 3220 days.
5. The respondents have further submitted that the judgment debtor is well aware of the pendency of E.P.No.171 of 2010, for delivery of possession and in the additional counter affidavit, the respondents have further submitted that having executed a sale agreement on 25.08.1994, the revision petitioner has set up his wife Suseela to file a suit in O.S.No.1041 of 1995 on the file of the learned Principal District Munsif, Erode, for maintenance, at the rate of Rs.1,000/- per month and that she has also obtained a decree on 14.11.1995, in respect of three items of the properties. According to the respondents, they are not parties to the abovesaid proceedings and that the decree is not binding on them. They have also submitted that both husband and wife with their kith and kin are residing under the same roof.
6. The respondents have further submitted that in furtherance of the decree in O.S.No.1041 of 1995 dated 14.11.1995, wife has filed E.P.No.26 of 2005 and brought the properties for realisation of the decree amount. But E.P.No.26 of 2005 was not pressed on 15.03.2006. Once again the wife has filed another execution petition in E.P.No.13 of 2007, against her husband / revision petitioner, in which he has filed his counter affidavit on 15.03.2007. Coming to know of the decree in O.S.No.1041 of 1995, the respondents have filed a claim petition in E.A.No.248 of 2007, to protect their right and interest, in so far as the suit property is concerned and that the claim petition in E.A.No.248 of 2007, has been allowed on 15.03.2010, in favour of the respondents. Thereafter, the revision petitioner's wife has filed CMA No.8 of 2010, before the learned Principal Subordinate Judge, Erode.
7. It is also the contention of the respondents that in both the proceedings, initiated on behalf of, Susheela, wife of the revision petitioner, the case was conducted by Mr.V.Dhandapani, on behalf of another counsel viz. Benher Wesley. The respondents in their counter affidavit have further submitted that the revision petitioner has also set up his son Vadivel to file another suit in O.S.No.783 of 1995, which was partly allowed. Even in the said suit No.783 of 1995, the revision petitioner has agreed to convey the properties covered under the sale agreement dated 25.08.1994, except the share of his son Vadivel. Suit O.S.No.783 of 1995, filed by the son, has been decreed. In the above said circumstances, the respondents have submitted that the allegation made against Mr.V.Dhandapani, that he had not taken any steps to inform the stage of the suit in O.S.No.170 of 1996, is not proper, as all the parties are living under the same roof.
8. Before the appellate Court, the revision petitioner has examined himself as PW1, and no document has been marked. On behalf of the respondents, one witness has been examined as RW1 and Ex.R1, dated 04.02.2005, certified copy of the final decree in I.A.No.118 of 2003 in O.S.No.783 of 1995 on the file of the II Additional Subordinate Judge's Court, Erode, Ex.R2, dated 10.12.2004, certified copy of petition and orders in EPR No.193 of 2004 in O.S.No.170 of 1996 on the file of the I Additional Subordinate Judge's Court, Erode, Ex.R3, dated 06.10.2010, certified copy of petition and orders in EPR No.113 of 2009 in O.S.No.170 of 1996 of the I Additional Subordinate Judge's Court, Erode, Ex.R4, dated 23.09.2010, certified copy of registered sale deed executed in EPR No.113/2009 in O.S.No.170/1996 of the I Additional Subordinate Judge's Court, Erode, Ex.R5, dated 19.03.2012, petition and orders in EPR No.171 of 2010 in O.S.No.170 of 1996 of the III Additional Subordinate Judge's Court, Erode, Ex.R6, dated 14.11.1995, certified copy of decree in O.S.No.1041 / 1995 of the Principal District Munsif Court, Erode, Ex.R7, dated 15.03.2010, final order passed in E.A.No.248 of 2007 in EPR No.13/2007 in O.S.No.1041/1995 on the file of the Principal District Munsif Court, Erode and Ex.R8, dated 20.03.2012, certified copy of decree in CMA No.8/2010 of Principal Subordinate Judge's Court, Erode, have been marked. The Court below after considering the pleadings and evidence and also the decisions relied on by both parties, has dismissed the petition, to condone the delay of 3220 days and held that the revision petitioner has not shown any sufficient cause to condone the delay of 3220 days in preferring the appeal and accordingly dismissed I.A.No.85 of 2011.
9. Assailing the correctness of the order and decretal order in I.A.No.85 of 2011, Mr.G.Gokul, learned counsel for the revision petitioner submitted that the Court below has failed to consider that when the delay was solely due to the non communication of the stage of the proceedings by the learned counsel on record, in the trial Court and hence the Court below ought to have been liberal in condoning the delay. He further submitted that the suit filed by the respondents 1 to 3 was for a specific performance, which is a discretionary remedy and had the revision petitioner been given an opportunity to contest the suit on merits, they would have put forth their case. Considering the nature of the relief sought for, he submitted that the appellate Court ought to have condoned the delay. Except the above no other submissions have been made.
10. The main reason for condonation of the delay of 3220 days in filing the appeal, is that, the revision petitioner's counsel Mr.V.Dhandapani, did not inform the stage of the suit. The revision petitioner has examined himself as PW1. Upon considering, his oral testimony, the Court below has found that the revision petitioner has admitted that his son has filed the suit claiming partition of the suit schedule properties in O.S.No.783 of 1995 and that even after receipt of summons, he has allowed a decree to be passed in O.S.No.783 of 1995. I.A.No.118 of 2003 has been filed for final decree and that the revision petitioner has pleaded ignorance of final decree proceedings.
11. The Court below has also noticed that the said Advocate V.Dhandapani, engaged by him to defend the suit in O.S.No.170 of 1996 filed by the respondent for specific performance, was the counsel who conducted the suit in O.S.No.1041 of 1995, filed against him, by his wife for maintenance. The suit in O.S.No.1041 of 1995, has been conducted by the said V.Dhandapani, on behalf of M/s. Benhar Wesley. The Court below has also observed that the entire cross examination of PW1 was evasive in nature and that he has pleaded ignorance of the proceedings initiated against him, by his wife and son.
12. Upon perusal of the Exhibits filed by the respondents, the Court below has also noticed that the suits in O.S.No.170 of 1996, filed by the respondents for specific performance and O.S.No.783 of 1995 filed by the revision petitioner's son, for partition, were tried simultaneously and that there was also a compromise between the parties. Based on the compromise in O.S.No.783 of 1995, Vadivelu, son of the revision petitioner has also agreed for passing of a decree for specific performance in respect of 1.50 acres of land in favour of respondents 1 to 3 and only on the said understanding, both the suits have been decreed. When the respondents, have filed, Execution petition, E.P.No.193 of 2004, the revision petitioner had remained exparte. The execution petition has been allowed and consequently a sale deed has also been registered. Thereafter, the respondents have filed, E.P.No.113 of 2009 for delivery of possession. At this stage, the revision petitioner has changed has counsel and entered appearance through Mr.Lingappan, Advocate on 08.02.2010. The petition in I.A.No.85 of 2011 has been filed to condone the delay of 3220 days under Order 41 Rule 3-A and Section 151 CPC in an unnumbered appeal.
13. As stated supra, material on record discloses that even in E.P.No.113 of 2009, the revision petitioner has engaged Mr.Lingappan, Advocate and in the said petition, the revision petitioner has remained exparte. After perusal of Ex.P6, dated14.11.1995, certified copy of the decree in O.S.No.1041 of 1995 of the Principal District Munsif Court, Erode, the lower appellate Court has observed that in the suit in O.S.No.1041 of 1995 filed by the revision petitioner's wife, Susheela, against him for maintenance, she has brought the subject matter of the suit properties and sought for an attachment. The properties included in O.S.No.1041 of 1995, is also the subject matter of the sale agreement dated 25.08.1994.
14. Upon perusal of Ex.R7, dated 15.03.2010, final order passed in E.A.No.248 of 2007 in EPR No.13/2007 in O.S.No.1041/1995 on the file of the Principal District Munsif Court, Erode, the lower appellate Court has also noticed that the revision petitioner has engaged Mr.Lingappan, Advocate. The claim petition filed by the respondents has been allowed and when the same was tested in CMA No.8 of 2010, by the revision petitioner's wife, it was Mr.Lingappan, Advocate, who had represented him. Therefore, upon considering the oral and documentary evidence adduced by both parties, the lower appellate Court has arrived at a categorical finding that the contention of the revision petitioner that he was unaware of all the proceedings initiated against him, and thus, Mr.V.Dhandapani had failed to take care of the suit in O.S.No.170 of 1996, as false.
15. Perusal of the impugned order also shows that the lower appellate Court has called for the entire records in O.S.Nos.783 of 1995 and 170 of 1996 and found that on 14.02.2002, the evidence has been recorded in the above said suits, simultaneously, wherein it has been agreed to execute sale deed in respect of 1.50 acres of lands in favour the respondents and consequently, the respondents have also agreed to give up their right in respect of 66 cents, in favour of the revision petitioner's son, even though it was covered under the sale agreement dated 25.08.1994. Thus, going by the above said arrangement between the parties, in common trial, both the suits, have been decreed on 22.08.2002.
16. In the above said circumstances, the contention of the revision petitioner that he was totally unaware of the suits filed against him and throwing blame against his counsel Mr.V.Dhanapalan, cannot be accepted. Decree has been passed on 22.08.2002. Sale deed has been executed in E.P.No.113 of 2009. The petition to condone the delay in filing the appeal, has been filed after eight years. There is absolutely no bonafides in the cause shown by the revision petitioner for condonation. That apart, the decisions relied on by the respondents for dismissal of the application filed under Order 41 Rule 3-A CPC, squarely applies to the facts of this case and that they are reproduced hereunder.
(i) The decision in Sundar Gnanaolivu rep. By his Power of Attorney Agent Mr.Rukini Vs. Rajendra Gnanavolivu rep. By his Power of Attorney Agent Veina Gnanavolivu, reported in 2003 (1) LW 585 (DB), can also be made applicable to the facts of this case, as there is not only lack of bonafides, on the part of the revision petitioner, but there is also a failure on his part in bringing forth the true facts, regarding the knowledge of stage of the suits, and suppression of his examination in O.S.No.783 of 1995, in the suit filed by his son Vadivel.
(i) (a) In Sundar Gnanavolivu's case, after considering a catena of decisions, the Division Bench, at paragraph No.15, 16 and 19, held as follows:
"15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an ex-planation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compen-sating the prejudice caused to the other side monetarily, the condonation of delay can be favourbly ordered.
16. As held by His Lordship Mr. Justice M. Srinivasan, as he then was, in the Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin versus Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the rules prescribing the period of limitation have to be obeyed by the concerned party and in order to get over such period prescribed, sufficient explanation should be tendered. His Lordship was pleased to hold that question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a litigant cannot be expected to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.
17. By keeping the above legal principles in our mind, when we consider the case of the petitioner, at the out set, it will have to be stated that the averments contained in the affidavit sworn to by the Power Agent on behalf of the petitioner, in regard to the steps taken for pursuing the further proceedings after the delivery of Judgment on 2-8-1999 diametrically varies with the averments contained in the affidavit sworn to by one T.V. Sekar, Advocate who was the counsel who appeared for the petitioner originally in the lower Court proceedings. In para 3 of the said affidavit sworn to by T.V. Sekar in the month of November, 2002, it has been stated as under:
3. I was under the impression that he had taken my signature and had applied for it. At that time I got information that the defendant had gone abroad and the defendant did not contact me. Much later a representative of the defendant met me and asked for the copy of the certified copy of the judgment and decree. When I checked up my records I found that the then clerk by oversight had not applied at all. Due to health problems he left my service almost a year before the representative the defendant met me and I understand he had gone back to his native village near Arakonam.
Thus the counsel who appeared for the petitioner makes it categoric that neither the petitioner nor his Agent approached him after the Judgment dated 2-8-1999 till the month of December 2000 when a fresh copy application was made.
19. One other reason which prevents us from showing any indulgence to the petitioner is the utter falsehood made on behalf of the pe-titioner by the Power Agent in her affidavit filed in support of the application. According to her, the Power of Attorney was executed in her favour on 6-5-1998. She also claims that she was regularly contacting the counsel and taking care of the proceedings. She would also claim that after the delivery of the judgment dated 2-8-1999, she instructed the counsel to apply for the certified copies of the judgment and decree, and that the counsel also informed that necessary application has been made. On the other hand, the counsel Mr.T. V.Sekar, in his affidavit sworn to in the month of Novem-ber, 2002 in paragraph 3, which has been ex-tracted in the earlier part of this order shows that the petitioner never contacted him after the judgment and .that his representative (ap-parently referring to the Power Agent) con-tacted him much later and asked for a certified copy of the judgment and decree and it was at that point of time, when he checked up, he de-tected that the clerk failed to apply for the copy. According to the counsel, thereafter a copy application was made and certified cop-ies of judgment and decree were obtained. Therefore, going by the averments contained in the affidavit of the counsel, the veracity of which can be reasonably relied upon, it tran-spires that the Power Agent contacted the counsel only in the month of December 2000. Therefore, if that is the only inference possi-ble, then it will have to be held that all other averments contained in the petitioner's affida-vit sworn to by the Power Agent is totally de-void of truth and has been deliberately made for the purpose of this application. We have to therefore hold that the petitioner has not come forward with clean hands while seeking for condonation of delay of more than a year and in such circumstances, the bona fides of the petitioner proved to be demonstrably lacking. Therefore, when there is total lack of bona fi-des on the part of the petitioner while coming forward with the present application, going by the principles set out in the various judgments referred to above, we are of th~ view that this case falls within the exception to the rule and does not deserve the liberal approach formula in matters relating to condonation of delay. We are therefore not satisfied with the reasons adduced by the petitioner while seeking for condonation of delay of 431 days in filing the first appeal. We, therefore decline to condone the delay and accordingly dismiss the applica-tion with costs of Rs. 1000/-.
(i) (b) In the above reported case, there was a delay of 431 days and on the facts and circumstances of the case, by holding that the applicant therein, has not approached the Court with clean hands and that the averments in the affidavit were totally devoid of truth and lacking in bonafides, a Division Bench of this Court, while dismissing the application for condonation of 431 days in filing the appeal, has also dismissed the petition with costs. Some of the decisions considered by the Division Bench, on the aspect of gross negligence, in action or lack of bonafides in approaching the Court, for condonation are worth reproduction. Paragraphs 9 to 14 "9. In the judgment reported in 1998 (2) CTC 5 33 {N.Balakrishnan versus M.Krishnamurthy), the position has been set out as under in para 14:
"14. It must be remembered that in every case of delay there can be some lapse 'on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the ex-planation does not smack of mala fides or it is 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 deliber-ately to gain time then the court should lean against acceptance of the explanation "
10. In the Judgment reported in MANU/SC/0398/2001 : 2001(6) SCC 176 M.K. Prasad versus P. Arumugam), it has been held as under in para 9.
9. Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay....
11. In a recent Judgment of the Honourable Supreme Court reported in MANU/SC/0135/2002 : 2002(3) SCC 195 = 2002-3-L.W.417 (Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others), the position has been succinctly set out in para 12 which reads as under:
12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides 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....
12. In the Division Bench Judgment of our High Court, in the Judgment reported in MANU/TN/0252/2000 : 2000 (3) CTC 727 = 2000 3 L.W. 938 (C. Subraniam versus Tamil Nadu Housing Board rep. by its Chairman And Managing Director), the position has been stated as under in para 31:
31. To turn up the legal position, (1) the work "sufficient cause" should receive liberal construction to do substantial justice; (2) what is "sufficient cause" is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion' (5) 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 in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship, the' discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor; (9). If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether.
13. The Judgment relied upon by the learned counsel for the petitioner reported in MANU/SC/0148/2000 : AIR 2000 SC 1221 = 2000-3-L.W.231 (G.P. Srivastava versus R.K. Raizada & others) was a case where a party came forward with an application to set aside the ex parte proceedings within the statutory time specified which was rejected on the ground that the medical certificate produced to support the claim of sickness was issued by a private doctor and not by a government doctor which was frowned upon by the Hon'ble Supreme Court while allowing the appeal. The said judgment, therefore, can have no application to the case on hand. Equally, the other judgment, reported in MANU/SC/0023/1983 : AIR 1984 SC 41 (Smt. Lachi Tewari & others versus Director Of Land Records & Others) related to a Writ Petition which was dismissed for default, wherein, an application came to be filed within ten days of such dismissal on the ground that the counsel could not represent the case as he was engaged in some other case before some other Court and that when the matter was called, a pass over was requested on behalf of the counsel and it was in those circumstances, when the application for restoration was rejected by the High Court, the Hon'ble Supreme Court, taking note of the above facts, was pleased to set aside the order of, the High Court.
14. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin versus Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17 which read as under:
14. ...If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.
17. ...Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?
(ii) In Kaliammal and Others Vs. Sundharammal and another, reported in 2006 (5) CTC 822, a learned Single Judge, of this Court, on the facts and circumstances of the case, held that the interest of justice warrants that, there must be finality to the litigation and in absence of such finality, rights accrued to the opposite party would be unsettled by uncertainties of litigation. In the above said case, in the petition to condone the delay of 32 days in filing the application to set aside the exparte preliminary decree filed by the defendant, final decree was intervened by several circumstances. Final decree proceedings were allowed, followed by an order of delivery of possession, in the execution proceedings. By the time, application for condoning the 32 days delay in filing the petition to set aside the exparte preliminary decree was taken up, a final decree had already been passed and that delivery of possession was also ordered. The above said reported judgment can be applied to the facts of this case, as there is a similarity, to the extent that the case relates to delivery of possession, and that all the proceedings have ended in favour of the respondent and that even the sale deed has been executed, pursuant to the order made in E.P.No.113 of 2009.
(iii) In Union Bank of India, Oppanakara Street, Coimbatore 641 001 Vs. K.R.Jewellers and Others, reported in 2008 (5) CTC 651, a Division Bench of this Court held that mere allegation of negligence against a counsel is not a ground to condone the delay, because, the party has equal responsibility to follow up the matter. In the above reported case, there was a delay of 1287 days, in filing the appeal, before the Debts Recovery Tribunal and that the appellate Tribunal, has condoned the delay. Upon consideration of the facts and circumstances, this Court has set aside the order of condonation, by agreeing to the contentions of the respondent therein that mere allegations of negligence against the counsel cannot be a sufficient reason to condone the delay.
(iv) In C.Raghupathy Vs. C.Govindan and Others, reported in 2009 (1) CTC 319, there was a delay of 942 days, in setting aside an exparte decree. After contest, the application for condonation was dismissed. The reason assigned, by the revision petitioner therein was that his counsel, did not fulfill his obligations properly and hence there is a delay. Rebutting the same, the respondents therein, have submitted that there was lack of bonafide and when the question of limitation was based on principles of public policy, the victorious litigant should not be expected to remain disgruntled, indefinitely for the period to be determined, at the whims and fancies of opponent. Objection blaming the counsel for the delay has also been resisted on the ground, that it is for the party to keep in contact with him and failure to do so, amounts to negligence. After considering the rival submissions, this Court has accepted the contentions of the respondents therein, and held that "even by engaging a counsel, party to the case is not relieved of his duties and obligations. Where a party either does not fully brief the counsel or keep no contact with him, it is the party who is in default and negligence and has to bear the consequences."
This Court has also observed that "when there is total lack of bonafides on the part of the petitioner, while coming forward with the application, I am of the view that this case does not deserve liberal approach formula in matters relating to condonation of delay. Therefore, the reason adduced by the petitioner that there was a communication gap between him and his previous counsel on record for seeking condonation of extraordinary delay of 942 days in filing an application to set aside the exparte decree has to be dismissed."
(v) In Shanmugam Vs. Chokkalingam, reported in 2009 (5) CTC 48, this Court was called upon to test the correctness of the order dismissing the application, seeking condonation of the delay in filing an application, to set aside the exparte decree. The reason assigned in the supporting affidavit was that, he could not avail leave from employment and hence could not appear before the Court. He did not know about the passing of the exparte decree. Only when he met his counsel, he came to know about the decree. After considering a catena of decision, on the aspect as to how and in what circumstances, delay could be condoned or not and on the facts and circumstances, this Court held that there was no illegality in dismissing the application filed for condonation of 332 days in seeking to set aside the exparte decree. It is worthwhile to reproduce the decision relied on in Shanmugam's case:
"9. .... Before going into the merits of the case, it has become absolutely necessary for this Court to refer the Judgment of the Honourable Apex Court reported in MANU/SC/0573/1998 : 1998(7) SCC 123 in between N. Balakrishnan v. M. Krishnamurthy, which reads as under:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of 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 legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not meant 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.
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 case, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of 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 lean against acceptance of the explanation. A court knows that refusal to condone 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. The words 'sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.
10. Similarly, the judgment of this Court reported in 2002(3) CTC 13 in between Sankaralingam and Anr. v. V. Rahuraman would also enlighten this Court regarding the points to be pondered in a case of condonation of delay. The relevant portion would run as under:
This Court is inclined to point out the following facts and circumstances which would speak volume against the petitioners (i.e.)
(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances,
(b) Vagueness of the affidavit and contradiction between the affidavit and deposition before Court,
(c) Failure to place any materials before Court to substantiate the case, and
(d) Absence of arguable points and law in the defence.
11. In another judgment of this Court reported MANU/TN/0695/2005 : 2005(3) MLJ 439 between Yanaimal Thottam Trust v. B. Lakshmanan and Anr. it has been held as follows:
The power to be exercised under Section 5 of the Limitation Act is a discretionary exercise that is if the trial Court is satisfied that there is sufficient cause that is enough to condone the delay. That was the reason given by the courts below that the party should be given an opportunity to meet the case on merits instead of denying the valuable right on technicalities. The trial Court has exercised the jurisdiction in favour of the respondent to meet the case on merits. It is very well settled that when technicalities and substantial justice are pitted against each other, law and Courts would always be in favour of the substantial justice rather than technicalities.
In yet another judgment of our Honourable Apex Court reported in MANU/SC/0534/1971 : AIR 1972 SC 749 in between State of West Bengal v. Administrator, Howrah Municipality, it has been categorically laid down as follows:
From the above observations it is clear that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.
The other judgment of this Court made in MANU/TN/0705/2005 : 2005(3) MLJ 425 between Periasamy and Ors. v. Allimuthu and Ors. would go to show as follows:
Of course, it may be stated that the third respondent ought to have been more careful in filing the application. The omission to adopt such care need not be used as a ground in refusing to condone the delay. In every pending case, while impleading the legal representatives, in one way or other, there occurs some lapse on the part of the litigant concerned in filing the application to implead the legal representatives. But that alone is not enough to turn down the plea to implead the legal representatives. When there is no inordinate delay, opportunity is to be afforded to bring on record the legal representatives.
12. Similarly the judgment of this Court made in 2004(3) MLJ 36 between Rathinathammal v. Muthusamy and Ors. would run as follows:
Admittedly, the 11th defendant received notice in execution proceedings on 26.11.1996, but she filed the petition I.A. No. 259 of 1998 to condone the delay of 545 days in filing the petition to set aside the exparte decree only on 8.6.1998 stating that she was under the impression that her counsel could have taken steps to set aside the exparte decree which is unbelievable as pointed out by the trial Court that she had to wait for about two years after entrusting the matter to the counsel. Therefore, considering all these facts, the trial Court has rightly dismissed the petition that no sufficient reason was shown by the 11th defendant to condone the delay of 545 days in filling the petition to set aside the exparte decree.
13. On a careful understanding of the aforesaid judgments of our Honourable Apex Court and this Court, I could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bonafide is imputable to a party claiming condonation."
(vi) In S.Ramakrishnan and two others, Vs. S.Rajeswari, reported in 2010 (6) CTC 10, a learned Single Judge of this Court has considered a similar case of refusal to condone the delay of 1128 days in filing an application to set aside the exparte decree. The revision petitioner therein has claimed that he had knowledge of the decree only during the execution proceedings. The lower Court has dismissed the application, holding that no sufficient cause was shown. The learned single Judge, on the uncontroverted facts and circumstances, found that though, the revision petitioner therein, had appeared before the Court below, through a counsel, who subsequently failed to cross examine the plaintiff's witness and hence, after adjournments to various dates, a decree came to be passed and in the above said circumstances, held that it is not open to the revision petitioner therein, to plead ignorance of the decree and seek for condonation of the inordinate delay of more than three years. The said judgment could be applied to the present case also, for the reason that the revision petitioner, after entering appearance through a counsel, and examining himself in O.S.No.783 of 1995, the suit filed by his son, which it has been to execute a sale deed, in respect of punja land measuring 1.50 acres, in favour of the respondents.
(vii) In Kaliaperumal Vs. Parasuraman, reported in 2010 (1) TNCJ 61 (Mad), there was a Delay of 3351 days. The defence taken was that counsel did not inform about proceeding of case. Holding that no reason has been given by petitioner, as to why he himself has not contacted his counsel, this Court rejected the case of the petitioner.
(viii) In Anthonysamy Vs. Loordhusamy, reported in 2012 (1) TNCJ 914 (Mad), there was a delay of 1486 days. The application for condonation was dismissed. The reason assigned was that the appeal was filed in time, but the papers were mistakenly handed over by the counsel to another client. On the facts and circumstances of the case, the Court below having taken note of the fact that the revision petitioner has participated in the final decree and also in the eviction petition, cannot plead ignorance of legal proceedings and accordingly, upheld the order of dismissal.
17. In the light of the above discussion and decisions stated supra, this Court is of the view that there is absolutely no merits, bonafides and diligence shown in the supporting affidavit filed for condonation. The averments, in the supporting affidavit depicts the falsity of the revision petitioner, in throwing the blame on his previous counsel Mr.V.Dhandapani. As rightly observed by the Court below, the revision petitioner has not approached the Court with clean hands. Equity cannot be extended to such person, who has approached this Court with unclean hands. In Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, the Supreme Court held as follows:
"12. .......It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) "When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression clean hands is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for."
14. In Halsburys Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms:
1303. He who seeks equity must do equity.In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.
* * * 1305. He who comes into equity must come with clean hands.A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim he who has committed iniquity shall not have equity, and relief was refused where a transaction was based on the plaintiffs fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.
The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiffs demerits.
18. With the above observations, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
ars