Madras High Court
Mrs. Zulaiha Syed Mohideen vs D. Visalakshi Ammal (Deceased) on 22 October, 2013
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22 -10-2013 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.R.P. (NPD) No. 2768 of 2013 and M.P. No. 1 of 2013 Mrs. Zulaiha Syed Mohideen No.80, Aspirin Garden II Street Kilpauk, Chennai 600 010 rep. by her Power of Attorney Agent Shahul Hameed C.S. B-2, T.N.H.B. Avadi, Chennai 600 054 .. Petitioner Versus 1. D. Visalakshi Ammal (deceased) 2. D. Vinayagam 3. D. Nithyanandam 4. D. Panneerselvam 5. D. Manohar 6. K. Sundari 7. H. Suguna .. Respondents Civil Revision Petition filed under Section 115 of CPC against the order dated 15.12.2012 made in I.A. No. 8835 of 2012 in O.S. No. 15292 of 1996 on the file of the II Additional City Civil Court, Chennai. For Petitioner : Mr. R. Rajesh Sitaram For Respondents : Mr. P. Govindarajan ORDER
The revision petitioner has come forward with this Civil Revision Petition questioning the correctness of the Order dated 15.12.2012 passed in I.A. No. 8835 of 2012 in O.S. No. 15292 of 1996 on the file of the learned II Additional Judge, City Civil Court, Madras, by which, the Petition filed by the respondents herein for condonation of delay of 2045 days in re-presenting the petition to set aside the exparte decree dated 08.10.2002 in O.S. No. 15292 of 1996 was allowed with costs of Rs.5,000/-.
2. (i) The admitted facts in this case is that the revision petitioner herein, as Plaintiff, has originally filed the suit in C.S. No. 103 of 1993 before this Court for specific performance of the agreement of sale dated 21.01.1992. Subsequently, the suit stood transferred and re-numbered as O.S. No. 15292 of 1996 on the file of learned II Additional Judge, City Civil Court, Chennai. On notice in the suit, the first defendant filed vakalat through her advocate on 07.03.1997. The first defendant also filed her written statement on 25.07.1997. While so, the suit was dismissed for default and to restore the suit which was dismissed for default, the plaintiff/revision petitioner herein has filed an application in I.A. No. 152 of 1999 to set aside the order, in which notice was ordered. On notice, except the fourth defendant, all the defendants have filed vakalath on various dates. As far as the 7th and 8th defendants are concerned, they have filed Vakalath on 08.02.1999 and the defendants 2, 3, 5 and 6 have filed vakalath on 22.03.1999. Ultimately, the suit was restored to file.
(ii) Subsequently, the defendants/respondents herein were called absent and an exparte decree was passed on 08.10.2002. For setting aside the exparte decree, an application was filed by all the defendants, except the fourth defendant, on 17.12.2004 under Order IX Rule 13 of CPC by claiming that they came to know about the exparte decree only on receipt of notice in the Execution Petition No. 206 of 2004. In the meantime, at the instance of the plaintiff, sale papers have been filed in the Execution Petition.
(iii) While so, on 16.12.2006, on behalf of the fourth defendant, who is said to be a lunatic, the seventh defendant filed two applications in I.A. No. 23112 and 23113 of 2004 in O.S. No. 15292 of 1996 to set aside the exparte decree along with a petition to condone the delay of 772 days in filing the petition to set aside the exparte decree dated 08.10.2002. These petitions were filed under Order 32 Rule 3 of CPC read with Section 5 of the Limitation Act. These petitions were dismissed by the trial court against which two Civil Revision Petitions were filed before this Court in CRP (NPD) No. 872 and 873 of 2007. This Court, by an order dated 13.02.2008, allowed both the Civil Revision Petitions with a direction to produce the mentally retarded fourth defendant before the learned II Additional Judge, City Civil Court Chennai on 12.03.2008 and on such production, the learned II Additional Judge, City Civil Court, Chennai shall refer him to a Psychiatrist in the Government Mental Hospital, Kilpauk to ascertain his mental illness, duration of the probable attack of the said illness etc., and after getting a report regarding his mental status, the trial court was directed to proceed further to dispose of the suit. Admittedly, as per the directions issued by this Court, the fourth defendant was neither produced before the trial court nor a Psychiatrist attached to the Government Mental Hospital, Kilpauk, Chennai to ascertain his mental status.
(iv) In the meantime, on 17.12.2004, the fifth defendant in the suit filed a Petition under Order IX Rule 13 of CPC to set aside the exparte decree dated 08.10.2002 by claiming that he came to know about the exparte decree only on 27.11.2004 when a paper publication was caused. This petition was returned on 29.12.2004 for complying with certain defects and it was re-presented on 21.06.2010. Once again the petition was returned on 20.12.2011 and it was re-presented along with a petition in I.A. No. 8835 of 2012 in O.S. No. 15292 of 1996 to condone the delay of 2045 days in filing the petition to set aside the exparte decree dated 08.10.2002. The trial court, allowed this petition with costs of Rs.5,000/- on 15.12.2012. Aggrieved by this order, the plaintiff has filed this Civil Revision Petition.
3. (i) The learned counsel appearing for the plaintiff/revision petitioner would contend that the trial court ought not to have ordinarily allowed the petition to condone the enormous delay of 2045 days in re-presenting the Petition in I.A. No. 8835 of 2012 in the absence of any explanation, much less acceptable explanation offered by the respondents. The court below ought to have taken into consideration that the respondents have filed one application after the other and have successfully dragged on the execution proceedings. The learned counsel for the revision petitioner pointed out that earlier, on behalf of the fourth defendant/respondent, who according to the respondents is a lunatic, an application was filed by the seventh respondent and it was dismissed. As against the same, CRP (NPD) No. 872 and 873 of 2007 and it was allowed by this Court on 13.02.2008 with a direction to produce the fourth defendant, a lunatic, before the trial court and on such production the trial court was directed to refer him to a Psychiatrist attached to the Government Mental Hospital, Kilpauk, Chennai. This order dated 13.02.2008 passed by this Court has not been complied with and the fourth defendant was never produced before the trial court or before the Psychiatrist, as directed by this Court.
(ii) As far as the present petition in I.A. No. 8835 of 2012 is concerned, it was filed on 17.12.2004 by claiming that the respondents came to know about the exparte decree dated 08.10.2002 only after a paper publication was effected on 27.11.2004. Even though this application was filed on 17.12.2004, it was kept pending for a quite long time, it was re-presented twice and thereafter, the instant application was filed to condone the inordinate delay of 2045 days in re-presenting the petition. The learned counsel for the revision petitioner also brought to the notice of this Court that to stall the execution proceedings, the respondents have also filed an application under Section 47 of CPC claiming that the Execution Petition is not executable.
(iii) As far as the reasons offered in the application in I.A. No. 8835 of 2012 is concerned, it was only claimed that their mother was handling the case and due to her old age, she died on 20.04.2010. It is further stated that the respondents are taking interest to cure the illness caused to his elder brother, the fourth respondent herein and hence, they could not continue the litigation pending before the Court. Thus, the reasons assigned by the respondents for condoning the delay of 2045 days is not convincing, while so, the court below ought not to have ordinarily allowed the application for condonation of delay in re-presentation. The respondents were not diligent in defending the suit instituted by the plaintiff/revision petitioner and they were only interested in prolonging the proceedings. In such circumstances, the learned counsel for the revision petitioner prayed for allowing this Civil Revision Petition.
4. Per contra, the learned counsel for the respondent would mainly contend that the Court below, considering the fact that there is delay in only re-presenting the petition has exercised its discretionary power properly and condoned the delay. Even assuming that the respondents were not extra vigilant in pursuing the litigation, it will not be a ground for refusing to condone the delay in re-presenting the petition before the court below, which was returned for certain compliance. As far as the Execution Petition is concerned, the respondents were not served with any notice but only paper publication was effected on 22.11.2004. Immediately after such publication, petition was filed on behalf of the fourth respondent on 17.12.2004 to set aside the exparte decree i.e., within 30 days from the date on which paper publication was effected. It was further contended by the counsel for the respondents that once a court has passed an order in exercise of its discretionary power, such order need not be ordinarily interfered with. In any event, in order to afford an opportunity to the respondents, the trial court has rightly allowed the application with costs of Rs.5,000/- and it need not be interfered with by this Court.
5. I heard the counsel for both sides and perused the materials placed on record. The short point arise for consideration in this Civil Revision Petition is whether the trial court is justified in condoning the delay of 2045 days in re-presenting the petition to set aside the exparte decree passed in the suit on 08.10.2002.
6. Before going into the merits of the case, first of all, it should be stated that in a case of this nature for condonation of delay, it is well settled that length of delay is not material, but the reasons stated thereof for condonation of delay. In other words, for condonation of delay, the reasons adduced must be properly pleaded, convincing and acceptable and explanation should be offered for condonation of the delay. Unless proper explanation is offered, the Courts could not exercise its discretion in the proper perspective to advance substantial justice. It is also settled that when a court has exercised its discretionary power to condone the delay, the appellate Court, in exercise of its discretion, should not ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute. The appellate Court should also see whether the trial court has taken into consideration all the aspects of the matter, the advantage or disadvantage that may be caused to the other side while condoning the delay inasmuch as during the interregnum, the other party could have asserted a vested right. With this background, let us analyse the merits of the rival contentions urged by the counsel for both sides.
7. The revision petitioner has filed the suit for specific performance of the agreement dated 21.01.1992. The suit was filed in the year 1993 before this Court in C.S. No. 103 of 1993 and subsequently, it stood transferred and re-numbered as O.S.No. 15292 of 1996. In the suit, an exparte decree was passed on 08.10.2002. To set aside the exparte decree, an application was filed on 17.12.2004 claiming that the respondents came to know about the exparte decree only when a paper publication was effected on 27.11.2004 in the Execution Proceedings. It is to be mentioned that the revision petitioner has, in the meantime, filed E.P. No. 206 of 2004, for executing the exparte decree dated 08.10.2002. In the execution petition, pursuant to the paper publicatin effected, all the respondents, except the fourth respondent, have filed Vakalath through their respective counsel. While so, the application, which was filed on 17.12.2004 for setting aside the exparte decree was returned twice for compliance and thereafter, the present application in I.A. No. 8835 of 2012 in O.S. No. 15292 of 1996 for condonation of delay of 2045 days was filed on 23.02.2012.
8. In the affidavit filed in I.A. No. 8835 of 2012, on 23.02.2012, in para No.3 and 4, it was stated as follows:-
"3. I further state that the Petition to set aside the exparte decree which was returned for compliances on 29.12.2004 was re-presented on 21.06.2010. On 20.12.2011, the petition was once again returned for some compliances. I have also filed the petition to condone the delay in re-presentation. Hence there is a delay of 1994 days in re-presentation of the petition to set aside the exparte decree vide S.R. No. 53028 dated 17.12.2004. The delay in re-presentation is only due to the fact that we were pursuing the petition filed on behalf of my elder brother viz., Mr. D. Panneerselvam. My mother who was handling the case, due to her old age, died on 20.04.2010. Against the dismissal of the petition to set aside the exparte decree, we pursued the matter in the Hon'ble High Court, Madras in two Civil Revision Petitions and His Lordship Justice K. Venkataraman was pleased to admit the revision petitions and granted stay of the execution proceedings. At the time of final disposal of the revision petitions, His Lordship Justice Mr. Arumuga Perumal Adithan directed the mentally ill person viz., D. Panneerselvam to appear before this Honurable Court. Since the whereabouts of D. Panneerselvam was not known, the fourth defendant could not be produced before this Hon'ble Court and hence the petition to set aside the exparte decree was dismissed.
4. I further state that after the death of my mother, the other family members including me were taking interest to cure my elder brother viz., D. Nithyanandam, who is mentally ill. Hence I was unable to continue the litigation pending before this Hon'ble Court. Since I am doing building centering work on daily labour basis, for my survival, I could not contact my counsel and instruct him suitably. Hence, the delay in re-presentation of the petition to set aside the exparte decree. If the delay is not condoned, I would be put to irreparable loss and hardship."
9. It is evident from the averments made in the affidavit filed in support of the petition for condonation of delay of 2045 that the respondents were aware of the exparte decree. It is also evident that earlier, the respondents filed CRP Nos. 872 and 873 of 2007 before this Court in which an order dated 13.02.2008 was passed directing the respondents to produce the mentally retarded 4th respondent before the trial court and the trial court was further directed to refer the 4th respondent to a competent Medical Board. Admittedly, the order dated 13.02.2008 passed by this Court has not been complied with. Curiously, the respondents could only say that their mother was defending the suit and that she died on 20.04.2010 and therefore they could not defend the suit by contacting their lawyer. Admittedly, the present petition was filed two years after the death of the mother of the respondents 2 to 6 and it is not known as to why no steps were taken atleast after the death of their mother on 20.04.2010. It is also not known that when the sons are very much available, why that the mother should defend the suit, that too in her old age. Further, this Court, in the order dated 13.02.2008 in CRP (NPD) Nos. 872 and 873 of 2007 directed to produce the fourth respondent, who is a lunatic, but that was not complied with. Therefore, atleast between 2008 till the death of the mother of the respondents 2 to 6 on 20.04.2010, the respondents ought to have taken some steps to defend the suit, but it was not done. The other reason that the fifth respondent was doing building centering work on daily wage basis and he could not contact his counsel on record cannot be accepted as a reason for the inordinate delay of 2045 days in re-presenting the petition. Therefore, I am of the view that the reasons adduced by the respondents for condoning 2045 days in re-presenting the petition is not convincing and acceptable.
10. A perusal of the order dated 15.12.2012 passed by the Court below would indicate that the court below was carried away by the reasons adduced in the affidavit that the mother of the respondents 2 to 7 have passed away and therefore they could not prosecute the case. The court below did not see that the respondents have not filed any oral or documentary evidence to substantiate their claim. The 8th respondent has already filed a petition under Section 47 of CPC in E.P. No. 206 of 2004 and it is pending and therefore, the court below ought to have held that the respondents had knowledge about the pendency of the proceedings but they were not diligent in defending the case. The court below, simply, without any discussion as to the explanation offered by the respondents for condonation of delay, has summarily allowed the application. Further, the court below failed to note that the death of the mother of the respondents herein could not be a reason for condonation of enormous delay especially when the respondents, who are male members, are available and they could have defended the case on behalf of their mother. Therefore, I am of the view that the condonation of delay of 2045 days by the Court below would result in grave injustice to the respondent in pursuing the relief claimed in the suit.
11. The learned counsel for the respondents relied on the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176 to contend that failure to adopt extra vigilance should not be a ground for ousting a party from a litigation, in particular, where the inconvenience caused to the other party can be compensated by awarding appropriate and exemplary costs. The learned counsel for the respondents would mainly contend that when the court below had condoned the delay in exercise of its discretionary power, such an order need not be disturbed by this Court in the Civil Revision Petition.
12. In the above said case before the Honourable Supreme Court, the delay was 554 days in filing an application to set aside the exparte decree. The Honourable Supreme Court held 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. In that case, the Honourable Supreme Court also held that the whole conduct of the appellant did not warrant to castigating him as an irresponsible litigant and he could have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. This decision of the Honourable Supreme Court cannot be made applicable to the facts of this case. In this case, the respondents have adopted a dilly-dally approach in defending the case instituted by the revision petitioner. As mentioned above, the 7th respondent, representing the 4th respondent, a lunatic, has earlier filed I.A. Nos. 23112 and 23113 of 2004 before the court below for setting aside the exparte decree and for condonation of delay of 772 days and it was dismissed by the trial court on 16.12.2006. As against the same, CRP (NPD) Nos. 872 and 873 of 2007 were filed in which this Court directed the respondents to produce the lunatic, the fourth respondent, before the trial court and that the trial court shall refer him to a Psychiatrist to ascertain his mental status. Admittedly, this order dated 13.02.2008 passed by this Court has not been complied with by the respondents and it has become a finality. The instant application was also filed on 17.12.2004 and after successive returns, it was re-presented with delay of 2045 days on 23.02.2012. Thus, the respondents were not vigilant or diligent in defending the case and their intention is only to drag on the proceedings for one reason or the other. Further, it is not the case of the respondents that they were not aware of the proceedings. Therefore, the decision cited on behalf of the respondents cannot be made applicable to the facts of the present case.
13. On behalf of the revision petitioner, several decisions were cited. The learned counsel for the respondents objected for relying on the decisions by stating that they relate to condonation of delay in filing a petition and not with respect to condonation of delay in re-presenting a petition. Such an argument of the counsel for the respondents cannot be countenanced. Each and every case depends on the facts and circumstances of that case. Further, the issue involved in this case is whether the delay in filing a petition has been properly explained and sufficient cause has been shown for the delay or not and in support of the same, the learned counsel for the revision petitioner has relied on the following decisions:-
(i) In (Kandaswamy and four others vs. Krishnamandiram Trust, Karur, by its Trustees and 33 others) 2001 (4) CTC 722 this Court took note of the fact that the conduct of the revision petitioner in keeping quite for over two years only on account of inability to mobilise other petitioner evidences would amount to gross negligence, irresponsible inactive attitude and therefore the petitioner lacks bonafides. Under those circumstances, this Court refused to condone the delay of 797 days in filing a petition to set aside the exparte decree. In the above case, this Court also referred to the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents
(ii) In (Sundar Gnanaolivu rep. by his power of attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney agent Veina Gnanavalivu) 2003 1 Law Weekly 585, the Division Bench of this Court held that when the averments in the affidavit are untrue, lacks bona fides, then the case falls within the exception to the Rule of Liberal approach and it does not deserve the liberal approach formula in matters relating to condonation of delay. In this case also, the Division Bench of this Court followed the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents. In Para Nos. 14-A and 15, the Division Bench of this Court held thus:-
14-A. In yet another Division Bench Judgment reported in (1990) 1 LLN 457 (Tamil Nadu Mercantile Bank Limited, 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 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 (underlining is ours)
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 of 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 delays 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 explanation 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 compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered."
(iii) In the decision of this Court reported in (G. Jayaraman vs. Devarajan) 2007 (2) CTC 643, this Court held in a case where there was a delay of 553 days in filing an application to set aside the decree that discretion must not be exercised in an arbitrary or vague manner but must be exercised with vigilance and circumspection. It was further held that delay cannot be condoned as a matter of judicial generosity and the right accrued to the other side ought to be kept in view while considering the plea relating to affording opportunity to advance substantial justice. The facts involved in that case is identical to the facts of the case on hand. In that case, the decree holder was prevented from enjoying the fruits of the decree for about 8 years because of the filing of one petition after the other by the defendants to successfully stall the execution of the decree. In that context, this Court held that liberal approach theory would cause prejudice to the plaintiff/decree holder and the discretion exercised by the trial court to condone the delay of 553 days cannot be sustained. In Para Nos. 9, 10 and 16, this Court held as follows:-
"9. Of course, it is the consistent view taken by the Supreme Court in various decisions that "sufficient cause" appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bona fide on the part of the Applicant.
10. At the same time, the discretion must be exercised in any arbitrary or vague or fanciful manner, but must be exercised like any other judicial discretion with vigilance and circumspection. Delay cannot be condoned as a matter of judicial generosity. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay.
16. As stated earlier, delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party. Money suit was filed way back in 1998 and Revision petitioner/plaintiff has been pursuing the matter for nearly 7 to 8 years. The matter could not reach finality because of one Application or other filed by the respondent/ Defendant. The party claiming indulgence must prove that he is reasonably diligent in prosecuting the matter. This test for condoning the delay is not satisfied in this case. Liberal exercise of jurisdiction under Section 5 of the Act would cause prejudice to the plaintiff/Decree holder, who has been pursuing the money suit for quite a long time. In condoning the delay, there is improper exercise of discretion, and therefore, the impugned order cannot be sustained."
(iv) In (Shanmugam vs. Chokkalingam) 2009 (5) CTC 48 this Court held that the petitioner therein do not deserve indulgence inasmuch as the averments made by him in the affidavit are false and untrue. Under those circumstances, this Court refused to condone the delay of 332 days in filing a petition to set aside the exparte decree.
(v) In (Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and another) 2010 AIR SCW 1788 the Honourable Supreme Court rejected an application for condonation of delay of 4 years in filing an application to set aside an exparte decree on the ground that the explanation offered for condonation of delay is found to be not satisfied.
(vi) In the decision of this Court reported in (K.M. Balasubramaniam vs. C. Loganathan and another) 2011 (2) MWN (Civil) 741 this Court had an occasion to consider a case for condonation of delay of 1581 days in re-presenting an application to set aside the exparte decree. In that case, the suit was filed for recovery of money which was decreed exparte and the Execution Petition filed by the decree holder was also ordered exparte. Thereafter, the decree holder obtained sale certificate also and at the time of taking delivery of the property, the petitioner therein filed the application to condone the delay of 1581 days in setting aside the exparte decree. In that case also, a Petition under Section 47 of the CPC was filed stating that the decree is not executable. In the above facts and circumstances, this Court held that the delay offered for condonation of delay is not proper and acceptable. In Para Nos. 18 and 19, it was held as follows:-
18. It is not in dispute that the suit was filed based on a pro-note dated 01.08.1999 and the ex parte decree was passed on 08.09.2004, nearly 7 years back. It is an admitted fact that the Petitioner appeared in the suit as well as in the earlier E.P. No. 87 of 2005 through Counsel, however, the alleged petition filed under Order 9, Rule 13, C.P.C. to set aside the ex parte decree was not represented for more than four years and four months. Though arrest was ordered in the earlier E.P., however, as the petitioner evaded service, the E.P. was closed, then the present Execution Petition in E.P. No. 292 of 2006 was filed against the property belongs to the petitioner. Notice was served properly on the petitioner/judgment debtor and after proclamation of sale, property was sold in public auction. The successful bidder, a third party to the Suit paid the entire amount. As the sale was confirmed and Sale certificate was also issued, the amount deposited by the auction purchaser was withdrawn by the decree-holder by filing a petition before the Court below and full satisfaction was recorded. At this stage, the petitioner is not entitled to seek an order to condone the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the ex parte. It cannot be disputed that the length of delay is not a matter for deciding the petition filed under Section 5 of Limitation Act and rendering substantial justice is the paramount consideration.
19. In the instant case, it is clear that the Petitioner/Judgment Debtor has deliberately adopted delay tactics at various stages. Having appeared through Counsel in the earlier Execution Petition in E.P. No. 87 of 2005, evaded arrest and has not challenged various orders passed in the Execution Petitions has casually filed the Application before the court below to condone the delay in representing an Application filed under Order 9, Rule 13, C.P.C. and also filed a Petition under Section 47, C.P.C. which would show that it is an abuse of process of law, as argued by the learned counsel for the Respondents. On the aforesaid circumstances, I could find no merit in favour of the petitioner to allow the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the ex parte decree. As found by the Court below, the inordinate delay has not been satisfactorily explained by the Petitioner herein. While deciding the Petition, this Court has to consider the substantial justice. I am of the view that allowing the petition would render only injustice to the Second respondent/auction purchaser, who was impleaded by the order of this Court in this Revision and the first respondent/decree holder, hence, to meed the ends of justice, the Civil Revision Petition is liable to be dismissed, as an abuse of process of law by the Petitioner herein."
(vii) In (Postmaster General and others vs. Living Media India Limited and another) (2012) 3 SCC 563, the Honourable Supreme Court, while dismissing the application for condonation of delay of 427 days in filing the Special Leave Petition, held condonation of delay is not an exception and it should not be used as an anticipated benefit for the government departments. In that case, the Honourable Supreme Court held that unless the Department has reasonable and acceptable reason for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process cannot be accepted. In Para Nos. 25, 26, 27, 28, and 29, the Honourable Supreme Court dealt with the scope of 'sufficient cause' and held as follows:-
25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster vs. Living Media Limited as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010 i.e., after a period of nearly four months.
26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Deponent nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
27. It is not in dispute that the person (s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
14. In this case, the Honourable Supreme Court held that all the Government bodies, their agencies and instrumentalities have to come up with reasonable and acceptable explanation for the delay and to show that some bonafide effort was taken to get the delay condoned. This position of law was also reiterated by the Honourable Supreme Court in yet another decision rendered in (Maniben Devraj Shah vs. Municipal Corporation of Brihan, Mumbai) AIR 2012 Supreme Court 1629 by holding that delay cannot be condoned as a matter of course unless it is shown that refusal to condone the delay will result in injury to public interest. However, if delay is attributable due to lethargy or utter negligence on the part of officials, the delay could not be condoned.
15. In the present case on hand, the reasons adduced by the respondents are not convincing and it only exposes the sheer lethargy with which the affidavit was filed to get the huge delay of 2045 days condoned in filing a petition for re-presentation. It is also not the case of the respondents that they were not put on notice about the pendency of the suit. As mentioned above, the first defendant has even filed her written statement on 25.07.1997 and the other defendants also entered appearance by filing vakalath. While so, I hold that the delay in re-presenting the application cannot be condoned. The court below failed to consider the disadvantage that may be caused to the plaintiff/revision petitioner herein by condoning the delay.
16. In the result, the Civil Revision Petition is allowed as prayed for by setting aside the order dated 15.12.2012 passed in I.A. No. 8835 of 2012 in O.S. No. 15292 of 1996 on the file of the II Additional City Civil Court, Chennai. Consequently, I.A. No. 8835 of 2012 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
22-10-2013 rsh Index : Yes / No Internet : Yes / No To The II Additional Judge City Civil Court Chennai.
B. RAJENDRAN, J rsh Pre-delivery Order in CRP (NPD) No. 2768 of 2013 22.10.2013