Madras High Court
K.Karupannasamy vs N.Venkatachalam on 6 August, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:6.08.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.2207 of 2008 and M.P.No.1 of 2008 1.K.Karupannasamy 2.K.Sekar @ Palanisamy 3.G.Ranjitha ... Petitioners Vs. N.Venkatachalam ... Respondent Prayer: Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 02.3.2007 made in I.A.No.188 of 2005 in O.S.No.831 of 2001 on the file of the Principal Sub Court, Erode. For Petitioners : Mr.N.Manokaran For Respondent : Mr.G.Vasudevan For M/s.S.Kadarkarai ORDER
The civil revision petitioners/petitioners/defendants have filed the civil revision petition as against the order dated 02.3.2007 in I.A.No.188 of 2005 in O.S.No.831 of 2001 passed by the learned Principal District Judge, Erode in dismissing the condone delay application filed under Section 5 of the Limitation Act to set aside the exparte decree passed on 26.6.2002.
2.The trial Court, while passing orders in I.A.No.188 of 2005 dated 02.3.2007, has come to the conclusion that the application has been filed after a delay of 2 1/2 years, after recovering from the illness of jaundice etc. and further that the petitioners have allowed an exparte decree being passed against them in view of the fact that they do not have a good cause in the main case and finally when execution petition has been filed and later when sale deed has been executed by the Court, at that time the filing of the application is not to be accepted and even for allowing the application with costs, there are no sufficient reasons assigned and therefore, the application has not been filed with a bona fide intention and since the application has no merit and substance and accordingly, dismissed the same without costs.
3.The learned counsel for the revision petitioners/ defendants submits that the trial Court has not taken note of the fact that the main suit has been filed for the relief of specific performance on the basis of the sale agreement dated 26.09.2000 and the petitioners have come to know about the exparte decree only when they received notice in the execution petition and the petitioners have explained the circumstances which prevented them from taking part in the suit proceedings and there is no mistake on their part and that their counsel has not informed about the stage of the suit proceedings and as a matter of fact, the petitioners must be given an opportunity of hearing and inasmuch as the petitioners have a good defence in the suit and the purported sale agreement is altogether for a different transaction and as such, the parties must be allowed to contest the main case on merits and moreover, the petitioners are innocent villagers should have no knowledge about the consequences of the litigation and they have engaged a counsel and entrusted the matter to him, therefore, the parties cannot be penalised for the mistake on the part of the counsel and also the fact remains that the length of delay is immaterial and that the rules of limitation are not meant to destroy the rights of the parties and the object of providing a legal remedy is to repair the damage caused by reason of legal injury and the term 'sufficient cause' has to be liberally construed to advance the cause of substantial justice and in any event, the order of the trial Court are unsustainable in law and therefore, prays for allowing the revision petition.
4.The learned counsel for the respondent/decree holder contends that the trial Court has assigned proper reasons in dismissing the I.A.No.188 of 2005 and that the petitioners have received the notice in E.P.R.No.73 of 2004 and even though all the petitioners have received the notice in the execution petition, the first petitioner alone has filed vakalat engaged the counsel who has filed vakalat etc. and that the suit has been decreed on 21.6.2002 and that execution petition has been filed on 04.3.2004 nearly after two years and moreover, even after the execution petition being filed, the petitioners have not taken any steps to set aside the decree and that the petitioners have been careless and negligent in contesting the case and that the respondent /decree holder has deposited the entire balance amount in Court at the time of filing of the suit itself and that the Executing Court in execution petition proceedings has executed the sale deed in favour of the respondent/decree holder and further the respondent has purchased the stamp papers and paid the registration charges for the sale deed and in connection with the same he has spent a huge amount and a mere mistake which ignorance of law of the party or his lawyer is not per se a sufficient reason and therefore, prays for dismissal of the civil revision petition.
5.In support of the contention that a party should not suffer for the misdemeanor or inaction of his counsel, the learned counsel for the revision petitioner cites the decision of Hon'ble Supreme Court in Rafiq and another V. Munshilal and another AIR 1981 Supreme Court 1400. He also relies on the decision of this Court in Arun Alexander Lakshman, Proprietor, M/s.Alraj Builders, Chennai and another V. A.P.Vedavalli 2007 (4) CTC 449 wherein it is held 'that the term "sufficient cause" is to receive liberal construction to advance substantial justice which is overriding consideration and the true test to be applied is whether the applicant has acted with due diligence and the discretion to be exercised with vigilance and circumspection and Court should approach the issue with pragmatism and with a justice oriented approach and "sufficient cause" depends on facts and circumstances of particular case and when the defendants have filed a Search Memo and taken steps to search records immediately after coming to know of ex-parte decree and also explained that difference of opinion and therefore a delay of 714 days has been occasioned, they cannot be castigated as "irresponsible litigants" and the delay cannot be termed as unexplained or unreasonable and further failure to be extra vigilant cannot be a ground to deny the petitioners an opportunity to contest the suit and however a cost of Rs.50,000/- for condonation of delay and deposit of Rs.3,50,000/- to credit of suit to set aside exparte decree imposed on the petitioners.'
6.Continuing further, the learned counsel for the revision petitioner draws the attention of this Court to the decision G.Amsaveni and others V. P.Kanakaraj 2007 (2) TLNJ 104 at page 105 (Civ) wherein it is among other things observed as follows:
"... When no negligence or lack of bonafide is attributable to the petitioners to advance substantial justice, an opportunity should be afforded to the petitioners to contest the suit and the delay has to be condoned. It is settled law that Sec.5 application is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go into the position of the person concerned and find out if the delay can be said to have been resulted from the cause which the petitioner had adduced and whether the cause stated in the circumstances of the case is sufficient. It is the condition precedent for the exercise of discretion that the Court must satisfy itself as to whether there was sufficient cause for exercising such discretion and condoning the delay. The expression 'sufficient cause' should be considered with pragmatism with a justice oriented approach.
To decide whether sufficient cause is shown or not, it is very undesirable to act upon precedents as every Judge has to deal with particular facts of each case. When there is improper exercise of discretion by the lower Court, the High Court can consider the matter afresh and sufficiency of the cause shown, untrammelled by the reasonings of the trial Court and since there is no proper exercise of discretion, the impugned order is to be set aside, however on payment of an exemplary cost of Rs.50,000/- to be paid to the opposite party and to avoid further delay, this Court has examined the merits of the main application under Or.9 R.13 CPC and feel that sufficient grounds exist for setting aside the exparte Decree as well."
7.Yet another decision of this Court in Ravi Enterprises rep. by its Partner and 3 others V. Indian Bank 2008 (1) CTC 785 is relied on the side of the petitioners to the effect that 'Court has to adopt a pragmatic approach in matters regarding condonation of delay and deliver substantial justice overriding technical consideration and that the length of delay is immaterial Bona fides of party cannot be held against him merely because petition filed by him to set aside ex parte order has been dismissed by default and application to restore the same has also been dismissed and that the delay is condoned.'
8.Added further, the learned counsel for the revision petitioners places reliance on the decision of this Court in B.Ganesan V. State Bank of India, Dharapuram Branch and others whereby and whereunder it is held that 'the term "sufficient cause" should receive a liberal interpretation in the hands of law courts and a pedantic approach should not be made and on the other hand, a pragmatic approach should be made by the courts of law in the justice delivery system and admittedly, refusing to condone the delay will certainly result in a good case being thrown out at the early stage and cause of justice being defeated and that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred and it must be borne in mind that judiciary is respected because it is capable of removing injustice on technical grounds and that the revision petitioner must be given an opportunity to contest the proceedings before the DRT, Coimbatore and in that view, his meritorious cause cannot be thrown out at the early stage.'
9.Per contra, the learned counsel for the respondent/ decree holder cites the decision of Hon'ble Supreme Court in Mahabir Singh V. Subhash and others (2008) 1 MLJ 1214 (SC) wherein it is held as follows:
"Admittedly, an ex parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex parte.
Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an application.
Even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order 9 Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation."
10.He also relies on the decision of this Court in A.P.Ramasamy V. Dhanalakshmi 2004-1-L.W.406 wherein it is observed as follows:
"A perusal of the particulars for the entire period, would make it clear that the conduct of the petitioner was consistently indifferent. In fact, though he has shifted his residence in May 2000, he has not cared to give the change of address to his lawyer and he has approached the Advocate only after two years, namely in 2002. He though it fit to file the application to condone the delay only after receiving notice in the application filed by the respondent/ plaintiff for passing final decree. Thus, it is clear that the reasons for the delay have to be held as unreasonable and the same would not show that he is bona fide."
11.He also cites the decision of this Court in Jayaprakash and another V. Kamala 2005-2-L.W. 218 at page 219 wherein it is laid down as follows:
"It is seen from the evidence of P.W.1 that the petitioners were aware of passing of the decree much prior to the filing of the present application. After going through the reasons stated in the affidavit and the evidence of P.W.1, I am satisfied that the petitioners have not shown sufficient cause for condoning the delay in preferring the petition to set aside the ex parte decree. As rightly observed by the learned District Munsif, the ex parte decree cannot be set aside in a casual manner more so, when sufficient cause is not established by the party."
12.Continuing further, the learned counsel for the respondent/decree holder cites the decision of this Court in Sankaralingam and another V. V.Rahuraman 2002 (3) CTC 13 wherein it is held that 'Court dealing with petition under Section 5 should examine four aspects namely (a)Whether petitioner has satisfactorily proved sufficient cause for delay (b) Whether petitioner is guilty of negligence or inaction or want of bona fide (c) Whether valuable right that has accrued to other party is likely to be defeated by condonation of delay (d) and whether petitioner has arguable points on facts and law and decision whether explanation offered is sufficient cause or not would depend upon facts of every case and that the defendant filed application to condone delay in filing application to set aside ex parte decree and also examined himself as witness and contradiction between averments in affidavit and oral evidence, total wilful negligence and inaction in not acting promptly, failure to place any material before Court to substantiate his case and absence of arguable points in law in defence disentitled defendants to get necessary relief under Section 5 and the explanation offered by defendants/ petitioner did not constitute sufficient cause and delay could not be condoned.'
13.He brings it to the notice of this Court the decision in Reliance Industries Limited V. M.Rajkumari 2001 (3) CTC 321 wherein it is held that 'the defendants admitted in affidavit that they came to know about ex parte decree on 1.4.98 when plaintiff communicated the same and that the plaintiff had corresponded with defendants legal unit on 04.11.98 and on other dates and that the defendants did not give any reason for not filing application between 1.4.98 and 1.3.99 and that the defendant has failed to give even plausible explanation for delay and that the order of trial Court rejecting application to condone delay in filing petition to set aside ex parte decree is confirmed.' Also he seeks in aid of the decision in Srinivasalu E. and another V. Krishnammal and others Vol.100 L.W. at page 666 and 668 wherein it is held as under:
" The present order allowing the petition or condonation of delay in filing the petition for setting aside the ex parte decree appears to be obviously the result of a very liberal attitude and casual manner in which ex parte decree are being set aside. I had two occasions earlier to refer to the casual manner in which ex parte decrees are passed and they are subsequently set aside. The present case is a clear illustration which justifies the above observations. It is not possible to absolve the courts from the blame for the tendency which is growing in the litigants to take ex parte decrees very casually and at leisure make application for setting aside them on bald and general averments which are rarely scrutinised, which care which such applications and affidavits deserve, having regard to the stringent provisions of S.5 of the Limitation Act. In my view, the learned Judge was clearly in error in condoning the delay in filing the petition for setting aside the ex parte decree. The order of the learned Judge is, therefore, set aside."
14.Added further, the learned counsel for the respondent/decree holder relies on the decision of this Court in Myla Belli and others V. B.Rajagopal (2005) 3 M.L.J. 86 wherein it is among other things held as follows:
"In the case on hand, no sufficient cause is found. While dealing with an application under Sec.5, of the Limitation Act, The Court ought not to light-heartedly disturb the legal accruing to the opponent by the applicant's failure in filing application in time."
15.Moreover, he cites the decision of this Court in Sivakumar and another V. R.Sengodan (2007) 5 MLJ 718 wherein it is held that 'In a case of condonation of delay, the Court must take a liberal view, but at the same time, the Court should not do so on exercising equity and Court should not excuse the delay when there is no sufficient and convincing reasons, otherwise, it would be nothing but extension of limitation what is not available to a party under an enactment.' Also, he cites the decision of this Court in P.Perumal V. Minor Kumaresan rep. by his mother Mrs.Vendammal and another (2003) 2 M.L.J. 837 wherein this Court has held that 'it is true that the question of condonation of delay should be liberally considered and the facts disclose that the party against whom, ex parte decree was passed, was aware of the proceedings and that sufficient cause was not made out.' Apart from the above, the learned counsel for the respondent/decree holder presses into service the decision of this Court in Rathinathammal V. Muthusamy and others (2004) 3 M.L.J. 36 wherein it is held that 'though the petitioner was impleaded at a later stage, she was aware of the suit and the suit was allowed to be decreed ex parte and only at the time of delivery of property, the petitioner has chosen to file application for condonation of delay and that petitioner was aware of the execution proceedings and that delay cannot be condoned.'
16.On the side of respondent/decree holder, the decision in Bhanumathy V. M.Venkatesan and others 1989-1-L.W. at page 175 is relied on to the effect that 'It is not uncommon for litigants to change their counsel at their whims and fancies. Whenever they find that they are faced with an unfavourable order or placed in an inconvenient position, for the purpose of protracting proceedings, a practice has come, to change counsel and speak in a different voice. More often they are done deliberately, so that the proceedings can be protracted for a long period. By changing counsel, affidavits are filed maligning them behind their back by making outrageous claims which is for the ulterior motives to subserve their personal interests or at the sacrifice of the reputation of the concerned lawyers. No allegation made against a lawyer behind his back, could ever be a cause for granting any relief to any litigant under any circumstances. It is the cardinal duty of a court before accepting the allegations made against the counsel, to direct the parties to serve a notice on the counsel of the nature of allegations made against him or secure an affidavit, which would support the claims made by the petitioner in the petition filed against him. In their absence, it would be unsafe to grant relief by a presumption being drawn that advocates indulge in practices which are alleged as against them in such affidavits.'
17.Further, another decision in M/s.Democratic Builders V. Union of India AIR 1993 Delhi 132 is relied on the side of the respondent to the effect that 'no sufficient and cogent reasons have been given and that the delay of certain period has not been explained and as such, the delay is not liable to be condoned and that the applicant must explain each and every days delay.'
18.P.W.1/first petitioner in his evidence has deposed that it is correct to state that the first hearing date of the suit is 29.11.2001 and that on 07.2.2002 he and his daughter, 3rd defendant have not appeared and on 21.6.2002 since the written statement has not been filed his son has been set exparte and after 21.6.2002 he has not seen his Advocate and he does not know that on 04.3.2004 E.P.R.No.73 of 2004 has been filed and on 20.4.2004 during the first hearing since his daughter and son have not appeared and exparte order has been passed and further he is also not aware of the fact that since he has not appeared, the matter has been adjourned to 14.6.2004 and further he is also not aware of the fact that the paper publication and hearing date has been given on 13.7.2004 and that on 13.7.2004 he has filed vakalat through an Advocate and later he is not aware as to the date of adjournment on 09.8.2004, 24.8.2004, 13.9.2004 etc. and that till 05.1.2005 no steps have been taken to cancel the decree passed in the suit and others have also not taken steps.
19.It is the further evidence of P.W.1 that his son and daughters are keeping well and that because of jaundice he has not come and met his lawyer and that he does not know of the date on which he has been affected with jaundice and that he has treatment for three months with a doctor at Kullampalayam in Salem and that two years before from 25.4.2006 he has been affected with jaundice and he is not aware of the fact that the respondent has spent a sum of Rs.17,289/- towards Court expenses for obtaining the decree and moreover, he is not aware of the fact that the respondent has paid a sum of Rs.11,000/- towards stamp charges for obtaining the sale deed from Court.
20.P.W.2 in his evidence has stated that the first petitioner has been affected with jaundice and that the first petitioner is his friend and that he does not know the name of Advocate who has appeared for the petitioner and that he is not aware of the date from which the first petitioner has been affected with jaundice and further he is not aware on what date the first petitioner's jaundice has been cured and that the second and third petitioners are keeping good health and the first petitioner is conducting the case as informed by him.
21.R.W.1 in his evidence has stated that he has not seen the second and third petitioners in Court on any specified occasion and it is correct to state that the first petitioner is conducting the case for on behalf of the second and third petitioners and he is not aware of the jaundice treatment taken by the first petitioner and that the first petitioner has not been affected with jaundice and he is not aware of P.W.2 and only after an exparte decree has been passed he has filed the execution petition after a delay of two years and in five years he has attended 150 hearings of the Court.
22.A perusal of the Notes Paper in O.S.No.831 of 2001 of the trial Court shows that the publication has been effected for D1 and D3 and they have been called absent and set exparte and the matter has been adjourned to 21.2.2002 for filing of written statement of D2 and on 11.6.2002 since the written statement of second defendant has not been filed he has been called absent and set exparte and the matter has been posted for taking evidence on 21.6.2002 and on 21.6.2002 P.W.1 has been examined and Exs.A.1 to A.6 have been marked and after perusing the documents and holding that the claim is proved the suit has been decreed as prayed for with costs granting three months time for execution of sale deed.
23.It transpires from the averments in plaint that the respondent/plaintiff has filed a suit praying for the relief directing the defendants to execute a sale deed for Rs.2,00,000/- in respect of the schedule properties in favour of the respondent/plaintiff and at his expense as per the agreement dated 26.9.2000 and after receiving the balance of sale price of Rs.25,000/- within a date to be specified by the Court etc.
24.The plea taken by the first revision petitioner/ first defendant in the written statement among other things is that in the first week of September 2000 the first defendant approached the plaintiff as well as K.C.Sivashanmugam for a loan of Rs.1,00,000/- and that the plaintiff and the said Sivashanmugam has agreed to lend a sum of Rs.1,00,000/- and both of them insisted to pay interest at the rate of Rs.8/- per month per hundred and that he has agreed to pay the interest at the rate demanded by them on account of urgent necessity and at the time of request made by him, the plaintiff and the Sivashanmugam insisted to execute documents as collateral security as they like and as demanded by the plaintiff and the Sivashanmugam, he has handed over the original partition deed dated 21.4.1999 and at that time, the plaintiff and the said Sivashanmugam insisted to execute the registered agreement in their favour and consequently, he and other defendants jointly executed a registered agreement for sale dated 26.9.2000 in favour of the respondent/plaintiff and they also demanded to execute a registered power of attorney in favour of the aforesaid Sivashanmugam and the agreement of sale and the power of attorney have been duly registered in the S.R.O. Avalpoondurai and Perundurai and after execution of the documents they have paid a sum of Rs.1,00,000/- to him and he has received the same etc.
25.In short, the plea of the first petitioner/first defendant is that he has periodically paid the interest at the rate agreed and as agreed by the plaintiff and the defendants, he has also paid the entire amount on 25.09.2001 and at the time of settling the amount, a dispute has arisen in regard to the penal interest and the expenses incurred by the respondent/plaintiff and another for registering the documents obtained by them and taking advantage of the agreement, the respondent/plaintiff has rushed to Court and filed the present suit for specific performance and absolutely there is no cause of action for the respondent/ plaintiff to file the suit.
26.It is true that the term "sufficient cause" must be liberally interpreted to do substantial justice disposing of the matters on merits. Equally, the object of Court of law is to deliver evenhanded justice on merits in preference to the approach which scuttles a decision on merits. Generally speaking, the term "sufficient cause" is an elastic one to enable the Court to apply the law in a purposeful way which subserves the ends of justice.
27.As far as the present case is concerned, that publication has been effected in respect of D1 and D3 and they have been called absent and set exparte as early as on 07.2.2002 and only on 11.6.2002 the second defendant has been set exparte for not filing of written statement and when the matter has been posted for evidence on 21.6.2002, only on that day an exparte decree has been passed. No wonder, the period of limitation for setting aside the exparte decree is 30 days from the date when the defendant has come to know about the passing of the decree. At this juncture, it is pertinent to point out that the first revision petitioner/first defendant in his affidavit in I.A.No.188 of 2005 in para 4 has specifically averred that 'we have received notice in the execution petition in E.P.R.No.73 of 2004 and on receipt of the notice, they have contacted their previous counsel who got vakalat and his previous counsel filed his vakalat in the above execution petition and at that time, he represented on account of pressure of work, he was not able to get instructions in order to file written statement and therefore, he was not able to file the written statement and he is making arrangements to file an application to set aside an exparte decree and that he has failed to file an application to set aside the exparte decree and added further, in para 5 it is also averred that 'he does not know the legal proceedings and he is not aware of the proceedings taken in the matter and in fact, they have executed the agreement for sale with an intention to sell the suit properties etc. and though they have requested their counsel to take necessary action, he has failed to do so and thereafter, it was brought to their knowledge that their counsel failed to take steps to file an application to set aside the exparte decree and failed to file the written statement and they have got back the case bundle from their counsel and they have engaged the present counsel and their present counsel verified the Court diary and informed them that on 26.6.2002 the exparte decree has been passed and on the basis of set exparte the respondent has filed the execution petition E.P.R.No.73 of 2004 and thereby his counsel has got instructions for filing written statement and prepared the same and on 17.2.2007 he has filed the application to set aside the exparte decree passed.
28.It is the candid evidence of the first revision petitioner/P.W.1 in his cross examination on 21.4.2006 that till 05.1.2005 he has not taken steps to set aside the decree and others have also not taken any steps in this regard. Therefore, in view of the fact that the revision petitioners and others have not taken any endeavour to set aside the exparte decree till 05.1.2005, as spoken to by P.W.1/first revision petitioner/first defendant, though he has the knowledge of the said decree (since he is prosecuting the proceedings on behalf of the other petitioners) prior to the date of filing of the Section 5 application, this Court, on the basis of the facts and circumstances of the cases, is of the considered view that the petitioners have not shown sufficient cause to the subjective satisfaction of this Court for condoning the delay in filing the application to set aside the exparte decree and in reality, an exparte decree cannot be set aside in a cavalier fashion more so ever, when the Court has executed the sale deed etc. and viewed in that perspective, the order of the trial Court in dismissing the I.A.No.188 of 2005 dated 02.3.2007 is a valid and a proper one and the same does not require any interference and ultimately, the civil revision petition fails.
29.In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.188 of 2005 is affirmed for the reasons assigned by this Court in this revision. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
6.08.2009
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C.R.P.(NPD).No.2207 of 2008
6.08.2009