Madras High Court
S. Thiruvariamuthu S/O. ... vs Southern Railways, Represented By Its ... on 14 September, 2005
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Civil Revision Petition is directed against the order dated 15.4.1996 of the District Munsif, Shencottah in I.A. No. 32 of 1996 in unnumbered O.S. (O.S. No. 229 of 1979 on the file of Sub-Court, Tenkasi), dismissing the petition filed under Order 9, Rule 9, C.P.C., declining to restore the Applications in I.A. Nos. 919 to 921 of 1993. The Plaintiffs are the Revision Petitioners.
2. The Deceased-Sadasivamoorthi Pillai had filed O.S. No. 246 of 1979 on the file of Subordinate Court, Tirunelveli for Declaration of his Title and for Permanent Injunction. (Subsequently, the suit was transferred to Subordinate Court, Tenkasi and re-numbered as O.S. No. 229 of 1979). According to the Plaintiff, the Suit Properties belonged to the Plaintiff as per the Patta granted by the Assistant Settlement Officer. The Plaintiff has been granted Patta for the portion of his lands, which have been assigned New Nos. 420/1-0.73 acres 420/3-0.59 acres. The land, where there is a Railway Track, has been treated as Railway Poromboke. New S. No. 420/2 pro. 1.93.5 and 420/4 pro.0.02.5 have been assigned to the Railway. It is alleged that ignoring the said order, the Railway Authorities have sold the usufructs of all the trees standing on both sides of the Railway track from Sankarankoil to Ariyankavu to the Third Defendant for a sum of Rs. 12,250. On the strength of the Public Auction, the Third Defendant has been attempting from 1.2.1979 to cut, pluck and remove the usufruct of the Trees which are in possession and enjoyment of the Plaintiff in new S. No. 420/1 and 420/3. On the above averments, the Deceased-Plaintiff has filed the Suit for declaration of his Title to the Suit Properties and to direct Defendants 1 to 3 to pay to the Plaintiff a sum of Rs. 1,500 as the loss caused to him by the unlawful removal of usufruct of the removal of usufruct of the Trees.
3. Defendants 1 and 2 Southern Railway entered appearance and filed written statement alleging that the Plaintiff's lands are only East of the Railway Track and they do not lie on the West of the Track. S. No. 420/1 and 420/3 are West of the Track and the Plaintiff is not entitled to any portion of S. No. 420/1. Since the Plaintiff has neither Title nor possession in respect of the Plaint Schedule Properties, the Plaintiff is not entitled for Declaration of Title and other reliefs.
4. The Plaintiff died. For a long time, the Legal Representatives of the Deceased-Plaintiff were not impleaded. With a delay of 1827 days, Applications in I.A. No. 919 of 1993 was filed to bring on Record the Legal Representatives of the Deceased-Plaintiff. I.A. Nos. 920 and 921 of 1993 were filed to set aside the abatement and to condone the delay of 1827 days in filing the Application to bring on record the Legal Representatives of the Deceased. Those three Applications were posted on 30.6.1995; on which date, neither the Plaintiffs nor their Counsel appeared. Hence, all the three Applications were dismissed for default.
5. I.A. No. 32 of 1996.-- This Application was filed by the Petitioners/ Legal Representatives of the Deceased First Plaintiff under Order 9, Rule 9 read with Section 151, C.P.C. for restoration of I.A. Nos. 919 to 921 of 1993. In the supporting Affidavit, it is alleged that the Second Petitioner was unwell on 4.7.1995 and their counsel had been to Munsif Court, Shencottah and could not be present on 30.6.1995 and their absence was not wilful and wanton. Stating that they have definite case, the Petitioners have filed this Application for restoration of the Applications which were dismissed for default.
6. The Application was resisted by the Respondents/Defendants contending that no sufficient cause had been shown for non-appearance on 30.6.1995. It is alleged that even the Application in I.A. No. 32 of 1996 (I.A. No. 642 of 1995 on the file of Sub-Court, Tenkasi) has been filed with delay only on 27.7.1995 and that the absence of the Petitioners/Plaintiffs on 30.6.1995 was deliberate and the Applications cannot be restored.
7. The Application to restore I.A. Nos. 919 to 921 of 1993 was filed in I.A. No. 642 of 1995 on the file of Sub-Court, Tenkasi. In 1996, due to enhancement of pecuniary jurisdiction of District Munsif Court, the Application in I.A. No. 642 of 1995 was transferred to District Munsif Court, Shencottah and re-numbered as I.A. No. 32 of 1996. Learned District Munsif has dismissed the Application that it was not filed immediately after 4.7.1995, but has been filed only with delay on 27.7.1995. Learned District Munsif was of the view that for restoration of all three applications I.A. Nos. 919 to 921 of 1993, one application had been filed and on one such Application, all three Applications cannot be restored. Pointing out the enormous delay of 1827 days in filing the Application to bring on record the Legal Representatives of the Deceased Plaintiff learned District Munsif was of the view that the Petitioners were not diligent in pursuing the matter and conducting the Suit.
8. Aggrieved over the order of dismissal of the Application in I.A. No. 32 of 1996, the Petitioners/Plaintiffs/Proposed Parties have preferred this Civil Revision Petition. Assailing the Impugned Order, learned Counsel for the Revision Petitioners has submitted that the reasons assigned by the lower Court is unsustainable. It is submitted that the objection regarding the filing of one Application for restoration of all Three Applications could only be a technical objection. Placing reliance upon the decision L.S. Harilakshmi v. Laguduva Rathinammal, 1993 TLNJ 303, learned Counsel has submitted that the procedural law is only an handmaid of justice, which cannot stand in the way of advancing substantial justice. Learned Counsel has further submitted that the Court below has erred in approaching the matter to the delay in filing the Petition from 4.7.1995 to 27.7.1995.
9. Countering the arguments, learned Central Government Standing Counsel has submitted that there is negligence on the part of the Plaintiffs in pursuing the matter. Submitting that the Suit is of the year 1979, learned Counsel for the Respondents has submitted that there was enormous delay of 1827 days in filing the Application to bring on record the Legal Representatives of the Deceased-Plaintiff and that the reasons stated by the Petitioners/Plaintiffs is unsupported by any material.
10. The only point that arises for consideration is whether the lower Court was, right in declining to restore the Applications for the reasonings stated in the impugned order.
11. On 30.6.1995, all three Applications were posted for hearing. According to the Second Petitioner, he could not be present on 30.06.1995 since he vas suffering from dysentery and that his counsel also could not appear on that day since he had gone to attend a case at Shencottah. The Second Petitioner being a commoner, it cannot be expected from him to produce the Medical Certificate for his illness. Non-production of any Medical Certificate showing his illness cannot be the reason to disbelieve his version. On 30.6.1995, when the Applications have been posted for enquiry, the appearance may be by party or by a Pleader. It is alleged that the counsel on record for the Petitioners had been to Shencottah to attend a case in the Court and absolutely there is no reason to disbelieve the same.
12. In order to set aside the order of dismissal, sufficient cause for non-appearance must be shown to the satisfaction of the Court. The expression "Sufficient Cause" is to be liberally construed. Where no sufficient cause is shown, the Court cannot restore the Suit/Application. A liberal approach is to be adopted in interpreting the expression "Sufficient Cause" for the non-appearance of the parties. It is always desirable to decide the matters on merits rather than dismissing the Applications/Suits for default. The Application to implead the Legal Representatives of the Deceased Plaintiff has been filed with a delay of 1827 days. But, the Petitioners cannot be penalised in this Application-I.A. No. 32 of 1996 for their previous negligence. The lower Court was not right in declining to restore the Application on the ground that there was delay in filing the earlier Applications.
13. In the supporting Affidavit, it is alleged that the Petitioner has contacted his counsel on 4.7.1995 and came to know about the dismissal of the Applications on 30.6.1995. I.A. No. 32 of 1996 was filed under Order 9, Rule 9 read with Section 151, C.P.C., only on 27.7.1995. The lower Court has faulted the Petitioners for not filing the applications immediately after 4.7.2005. The lower Court was not right in saying that the Applications were not filed earlier. Under Article 122 of the Limitation Act, the application under Order 9, Rule 9, C.P.C., has to be made within 30 days from the date of dismissal of the Suit/Applications. I.A. No. 32 of 1996 was filed within the time. In consideration of the facts and circumstances of the case, the lower Court was not right in saying that the application was not filed immediately after 4.7.1995 i.e., after the Plaintiffs came to know about the dismissal of the Applications.
14. By perusal of the Cause Title, it is seen that the Petitioners are residing in distant places like Tuticorin, Chennai, Tiruppur and New Delhi. Perhaps, it might have taken some time to get the vakalat signed and filing the Applications. Under such circumstance, the lower Court was not right in faulting the Petitioners for not filing the Application immediately after 4.7.1995.
15. For restoration of all three Applications, only one Application in I.A. No. 32 of 1996 has been filed. Objection had been raised by the Respondents/Defendants on the ground that all three Applications cannot be restored on one such Application. The objection could only be a technical objection. It is not the number of Applications that were filed by the Petitioners. But, what is to be considered is whether the Petitioners/Plaintiffs honestly intended to restore the suit. This technical objection ought not to have weighed in the mind of the lower Court.
16. It is to be pointed out that whenever the Applications are filed to implead the Legal Representatives of the Deceased Party and when the Applications are filed to set aside the abatement and also to condone the delay, the normal practice is to assign numbers only to one Application, which is the Application to condone the delay. The right practice would be to assign number to other two applications only after the delay is condoned. It is noted that in some Mofusil Courts all three applications are being simultaneously numbered, which may not be a correct procedure. In case, if the Application for condonation of delay is dismissed, the other two applications viz., to set aside the abatement and to bring on Legal Representatives of the Deceased may not be taken up at all, in which case, the assignment of numbers to those Applications becomes otiose. Hence, it is always desirable to firstly assign number to the Application to condone the delay filed under Section 5 of the Limitation Act and to assign numbers to other two applications filed under Order 22, Rule 9(2), C.P.C. and Order 22, Rule 3 or Rule 4, C.P.C., only thereafter.
17. The objection raised on the ground of filing only one Application could only be a technical objection. The procedural law is only to subserve the ends of justice. In the decision Manohar Lal v. N.B.M. Supply, 1970 (1) SCR 22, the Supreme Court has held that the Rules and Procedures are intended to be handmaid to the Administration of Justice. The same was followed in the decision L.S. Harilakshmi v. Laguduva Rathinammal, 1993 TLNJ 303. The application for restoration ought not to have been dismissed on the ground of technicalities.
18. Pointing out the delay of 1827 days in filing the Application in I.A. No. 921 of 1993 to bring on record the Legal Representatives of the Deceased-Plaintiff, the lower Court was of the view that the Petitioners were not diligent in prosecuting their case. The Parties are to be given an opportunity to explain their position as to why they could not file the Application to bring on record the Legal Representatives of the Deceased/Plaintiff, while considering the Application in I.A. No. 921 of 1993, the lower Court is to determine whether such delay was deliberate or wanton. But, the Petitioners cannot be penalised for their previous negligence, if any. In that view, of the matter, the Impugned Order is to be set aside to enable the Petitioners/Plaintiffs to pursue their Applications in I.A. Nos. 919 to 921 of 1993.
19. For the foregoing reasons, the order dated 15.4.1996 of the District Munsif, Shencottah in I.A. No. 32 of 1996 in unnumbered O.S (O.S. No. 229 of 1979 on the file of Sub-Court, Tenkasi) is set aside and this Civil Revision Petition is allowed. I.A. Nos. 919 to 921 of 1993 on the file of Sub-Court, Tenkasi are ordered to be restored. In the circumstances of the case, there is no order as to costs.
20. If those I.A. Nos. 919 to 921 of 1993 are not available in the case records, the Learned District Munsif, Shencottah is directed to take appropriate steps to send for those Applications by communicating with the learned Subordinate Judge, Tenkasi and learned Principal District Judge, Tirunelveli. Learned District Munsif, Shencottah is directed to afford an opportunity to both the parties in all three applications and dispose of the matter in accordance with law.