Madras High Court
N.Packiamoni vs S.Muthuramalingam on 15 November, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/11/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD)No.1932 of 2012 & M.P(MD)No.1 of 2012 N.Packiamoni ... Petitioner Vs 1.S.Muthuramalingam 2.Thangaiah 3.Erachakulam, Oor Nanchil Nadu Vellalar Samudaya Trust, Re.pby its Trustees, Nallasivam Pillai, Erachakulam Village, Thovalai Taluk, Kanyakumari District. 4.Raman, Trustee, Erachakulam Nanchil Nadu Vellalar Samudaya Trust, Nallasivam Pillai, Erachakulam Village, Thovalai Taluk, Kanyakumari District. 5.Muthaiah Pillai, Trustee, Erachakulam Nanchil Nadu Vellalar Samudaya Trust, Nallasivam Pillai, Erachakulam Village, Thovalai Taluk, Kanyakumari District. 6.Mathiappan 7.Vasantha ... Respondents (The respondents 3, 5 to 7 ex-parte before the trial Court and appellate Court) Prayer Petition filed under Section 227 of the Constitution of India to set aside the fair and decreetal order dated 23.08.2012 in I.A.No.7 of 2010 in A.S.(SR) No.921 of 2010 on the file of the Court of the Principal Subordinate Judge, Nagercoil. !For Petitioner ... Mr.M.Suri ^For Respondents... Mr.D.R.Murugesan * * * * * :ORDER
This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 23.08.2012 passed in I.A.No.7 of 2010 in A.S.(SR) No.921 of 2010 by the learned Principal Subordinate Judge, Nagercoil.
2.The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:-
The revision petitioner herein is the plaintiff in the suit which was decreed as against the second defendant who is S.Muthuramalingam/R1 herein and as against the rest of the defendants, it was passed on merits. The second defendant instead of filing application under Order 9 Rule 13 of Civil Procedure Code with a condone delay application under Section 5 of the Limitation Act did choose to approach the appellate Court by filing memorandum of appeal accompanied by an application to get the delay of 24 days condoned in filing such appeal as against the ex-parte decree. After hearing both sides, the Appellate Court condoned the delay subject to the condition of payment of Rs.400/-(Rupees Four Hundred only) to be paid by the second defendant to the complainant.
3.Being aggrieved by and dissatisfied with the order of the First Appellate Court, this Civil Revision Petition is focused.
4.The learned Counsel for the revision petitioner/plaintiff by drawing the attention of this Court to various portions of the typed set of papers, would implore and entreat that without assigning any reasons much less a valid reason, the lower Court condoned the delay. In fact, the records, would reveal that the second defendant refused to receive the summon and subsequently R.P.A.D summons was served and decided to allow the matter as ex-parte and in such a case, no leniency could be shown to the said defendant. However, the lower Court condoned the delay for no good reasons warranting interference in this revision.
5.However, the learned Counsel for the first respondent/second defendant would submit that there is no harm in approaching the appellate Court straightaway as against the ex-parte decree passed concerning the second defendant and only there was a delay of 24 days in filing such appeal.
6.The point for consideration is as to whether the delay of 24 days condoned by the First Appellate Court in entertaining the appeal, is proper for the reasons set out in the revision.
7.I would fruitfully refer to the decision of the Honourable Apex Court as under:
Balwant Singh v. Jagdish Singh reported in (2010) 8 Supreme Court Cases
685. Certain excerpt from it would run thus:
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
27. The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.
28. In State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 this Court had taken a liberal approach for condoning the delay in cases of the Government to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.
29. In Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361, this Court took the view: (AIR pp. 363-65, paras 7 & 12) "7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR (1890) 13 Mad 269:
12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;"
30. In Union of India v. Tata Yodogawa Ltd., (1988) 38 ELT 739 (SC) this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the special leave petition, the application for condonation of delay was dismissed.
31. Similarly, in CCE v. A. Md. Bilal & Co., (2000) 10 SCC 63, the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22 Rule 9 CPC have been the subject-matter of judicial scrutiny for considerable time now. Sometimes the courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straitjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case.
32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.
33. Furthermore, it is also a well-settled canon of interpretative jurisprudence that the Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the learned counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.
34. Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect "sufficient cause" as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edn., 1997)
35. The expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)".
8.A mere running of the eye over these precedents, would display and demonstrate that in matters where there is no huge delay, the Court could give an opportunity to the party concerned adhering to the principles of audi alteram partem. In the application in I.A.No.7 of 2010 the first respondent/second defendant herein detailed and delineated the reasons to the effect that the delay of 24 days occasioned due to the communication gap between himself and his Advocate.
9.Taking into account the ratio laid down by the Honourable Apex Court in deciding the aforesaid cases and also the factual matrix involved in this case, I am of the view that the reasons cited for condoning the small delay of 24 days, warrants no interference.
10.As such, no interference is warranted in this appeal.
11. On hearing the order, the learned Counsel for the plaintiffs would make an extempore submission that suitable direction may be given to the First Appellate Court to dispose of the appeal expeditiously. Hence, I would like to direct the First Appellate Court to dispose of the appeal within a period of three months from the date of receipt of a copy of this order.
12. Accordingly, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous petition is closed.
gsr TO The Principal Subordinate Judge, Nagercoil.