Madras High Court
R. Subbarayan vs Ravaimani Ammal on 8 October, 1987
Equivalent citations: AIR1988MAD228, (1988)IMLJ294, AIR 1988 MADRAS 228, (1988) 2 CIVLJ 271
ORDER
1. The contention raised on behalf of the revision petitioner is that the lower Court has not given adequate reasons for condoning the delay of 505 days in filing !he application to set aside the ex parte decree in the case. It is submitted further that in the counter filed by the plaintiff (revision petitioner herein) it is specifically stated that the respondent-defendant had eloped with someone and had driven away the revision petitioner from the premises at Durgah, G.S.T. Road, Chengalpattu. It is also pointed out that the lower Court, in paragraph 5 onwards of its order, has, dealt with properly. the contentions of the revision petitioner (plaintiff) and had excused the delay merely on the ground that the respondent-defendant is *a woman. This Court has gone through the order under revision. This Court was also ,taken through the contents of the contentions ,raised by the revision petitioner before the lower Court in the petition for condoning the delay.
2. It is a well settled principle of law that the judicial discretion vested with the court in considering the question whether a delay , however small or however huge and enormous it may be, rests with the Court's discretion and it is -that discretion that matters at the end. However much evidence may be available explaining each day's delay, yet it is not as if the so-called explanation for each day's delay is one which may stand or may ,not stand judicial scrutiny. The background against which the question of delay has to be approached is, whether opportunity ha; to be granted or not to the person who knocks at the doors of the temple of justice for adjudication of the matter that had already been decided ex parte and a conclusion is to be arrived at. This backdrop should always be available in the arena of judicial scrutiny. With this background alone, a Court has to approach the question whether the delay is to be condoned or not. Under these circumstances, this Court finds that the lower Court has not gone anyway against the principle of law that the principle of law and equity is given its proper place and followed in the proper perspective in discussing the case put forward by the person who wants the delay to be condoned and the contentions arised by the-other party who had the benefit of a decree in his favour ex parte.
3. Audi alteram partem has been discussed at pages 91 to 94 of Broom's Legal Maxims, Eighth Edition, as follows: -
"It has long been a received rule that no one is to be condemned, punished, or deprived of his property in any judicial proceeding, unless he has had an opportunity of being heard.
"A writ of sequestration, therefore, cannot properly issue from the consistory Court of the Diocese to a vicar who had disobeyed a monition from his bishop, without previous notice to the vicar to show cause why it should not issue; for the sequestration is a proceeding partly in poenum, and no proposition is more clearly established than that a man cannot incur the loss of liberty or, property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him, unless, indeed, the legislature has expressly or impliedly given an authority to act without that necessary preliminary.
"An award made in violation of the above principle, may be set aside; and the principle is binding upon the committee of a members' club when they expel a member for alleged misconduct.
"No person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it be given to him.
'The laws of God and Man', said Fortes cue, J., in Dr. Bentley's case (R. v. Chancellor of Cambridge, (1723) 1 Str 557; per Maule, J.Abley v. Dale, 10 CB 62 (71); per Ld. Campbell, Ex. p. Ramshay, 18 QB 173 (19ft per Byles, 1., (1863) 14 CBNS 180 (194),'both give the party an opportunity to make-his defence, if he has any'. And immemorial custom cannot avail in contravention of this principle.
"In conformity also with the elementary principle under consideration, when a complaint has been made or* an information exhibited before justice of the peace, the accused person has due notice given him, by summons or otherwise, of the accusation against him, in order that he may have an opportunity of answering it.
"A statute establishing a gas-light company enacted that if any person should neglect, for a period of ten days after demand, to pay rent due from him to the company for gas supplied, the rent should be recoverable by a warrant of justice and execution there under. A warrant issued by a justice under this Act, without previously summoning and hearing the party to be distrained upon, was held to be illegal, though a summons and hearing were not in terms required by the Act; for the warrant is in the nature of an execution; without a summons the party charged has no opportunity of going to the justice, and a man shall not suffer in person or in purse without an opportunity of being heard.
"The Metropolis Local Management Act,1855, Sec. 76, empowered the vestry or district board to alter or demolish a house where the builder had neglected to give notice of, his intention to build seven days before proceeding to lay or dig the foundation It was held that this enactment did not empower the board to demolish such building without first giving the party guilty of the omission an opportunity of being heard, for a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds, and that rule is of universal application and founded upon the plainest principles of justice.
"Although cases may be found in the books of decisions under particular statutes which at first sight seem to conflict with the maxim it will be found on consideration that they are not inconsistent with it, for the rule, which is one of elementary justice, only requires that a man shall not be subject to final judgment or- to punishment without an opportunity of being heard."
4. In the present case, we find that the lower Court has given cogent and convincing reasons for condoning the delay of 17 months i.e. 505 days in filing the application. There is no infirmity in the order of the lower Court under revision. Hence, aft the stage of admission, the civil revision petition is dismissed.
5. Petition dismissed.