Madras High Court
Kaliaperumal vs Parasuraman on 21 October, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.10.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.2725 of 2009 and M.P.No.1 of 2009 Kaliaperumal ... Petitioner Vs. Parasuraman ... Respondent Prayer: Petition filed under Section 115 of Civil Procedure Code, against the fair and final order dated 21.7.2009 passed in I.A.No.737 of 2007 in O.S.No.341 of 1994 on the file of the learned District Munsif of Panruti. For Petitioner : Mr.S.Kingston Jerold ORDER
The revision petitioner/petitioner/defendant has filed this civil revision petition as against the order dated 21.7.2009 in I.A.No.737 of 2007 in O.S.No.341 of 1994 passed by the learned District Munsif, Panruti in dismissing the application filed by the petitioner under Section 5 of Limitation Act praying to condone the delay of 3351 days in filing the application to set aside the exparte decree dated 5.11.1998.
2.To avoid an avoidable delay, this Court in the interest of justice dispenses with the issuance of the notice to the respondent.
3.The trial Court, while passing orders in I.A.No.737 of 2007, has come to the conclusion that the revision petitioner/defendant has not assigned proper reasons in regard to the delay of 3351 days and resultantly dismissed the application without costs.
4.According to the learned counsel for the revision petitioner, the trial Court has committed an error in dismissing the I.A.No.737 of 2007 and the trial Court has not taken note of the fact that after service of summons in the suit, the revision petitioner has engaged an Advocate who promised to communicate the progress of the case and since his Advocate has failed to communicate the progress of the case, the revision petitioner bona fide believed the statement of his counsel and therefore has not contacted him in person to ascertain the progress of the case and further that the revision petitioner has come to know about the passing of the exparte decree only on 28.3.2009 when he has received a notice from the Executing Court and as a matter of fact, the trial Court has not given any findings in regard to the sufficient cause shown for the delay that as occurred and in any event the reasoning of the trial Court is unsustainable in the eye of law and therefore, prays for allowing the civil revision petition to promote substantial cause of justice.
5.Before the trial Court, the revision petitioner in his affidavit in I.A.No.737 of 2007 has inter alia averred that he has engaged Thiru.G.Gunalan, Advocate to contest his case and his previous counsel assured him that "he will write a letter to him at the time of trial," but till this date no letter has been served on him from previous counsel and on 28.3.2007 the court notice has been served on him in connection with the Execution case and the matter has been posted for hearing on 30.3.2007 in E.P.No.11 of 2007 and only then he has come to know that an exparte decree has been passed against him in the main suit in O.S.No.341 of 1994 on 05.1.1998 and it is the mistake of his previous counsel in not informing the date of trial to him and for the mistake of an Advocate a party should not suffer and it is the principle of law and in that process, there has occasioned the delay of 3351 days in preferring the application to set aside the exparte decree passed against him on 05.1.1998 and the said delay is neither wilful nor wanton but it is due to the mistake of his previous counsel and therefore has prayed for allowing the condonation of delay appliaction.
6.In the counter filed by the respondent/plaintiff/decree holder, it is mentioned that the main suit has been filed for the relief of specific performance and that the suit has been decreed as early as on 05.1.1998 and for the past 9 = years, the revision petitioner/ defendant has not cared to know about the case which shows the spine indifference and carelessness and wantonness in not taking part in the trial and further the suit has been posted in the list and for the appearance of the revision petitioner/defendant etc. and there is no truth or genuineness on the part of the revision petitioner/defendant in filing this petition and therefore, has prayed for dismissal of the application.
7.The learned counsel for the revision petitioner contends before this Court that a Court of law, while dealing with the application filed under Section 5 of the Limitation Act, will have to adopt a meaningful and purposeful approach by taking a liberal view of the matter and by allowing the said Section 5 application, the maximum that can happen is a party will be allowed to contest the main case on merits and if the application is allowed by a Court then his cause will be decided on merits and in fact, a pedantic approach should not be adopted by a Court of law and viewed in that perspective, the order suffers from serious infirmity and patent illegality in the eye of law and as such, the same has to be set aside to prevent an aberration of justice.
8.A careful scrutiny of the averments made in the affidavit in I.A.No.737 of 2007 filed by the revision petitioner/petitioner/ defendant indicates that he has engaged Mr.G.Gunalan , counsel to contest the case and his previous counsel has assured that "he will write a letter to him at the time of trial, but till this date no letter has been served on him from previous counsel and only upon receipt of notice in E.P.No.11 of 2007 for the hearing on 30.3.2007 the revision petitioner has come to know about the passing of the decree on 5.1.1998. In substance, the revision petitioner/defendant is blaming his counsel on the footing that his counsel has not informed him of the date of trial and for the mistake committed by the counsel, a litigant should not be penalised in a processual system of jurisprudence.
9.This Court has given its anxious consideration to the arguments advanced on the side of the revision petitioner.
10.It is to be borne in mind that the principles of law of limitation indeed will affect a particular party but while condoning the delay or otherwise the Court has to exercise its discretion in a judicious way. It is an axiomatic fact that a litigant cannot remain idle that his counsel will inform him about the hearing date of a case and a litigant cannot pass on the blame to the counsel and that cannot be a ruse in regard to the condonation of huge delay of 3351 days in the matter in issue. Significantly, the affidavit in I.A.No.737 of 2007 filed by the revision petitioner is conspicuously absent as to why he has not contacted his counsel for a long gap of 10 years. Indeed, the law of limitation is based on the principles of sound public policy and a party who approaches the Court for seeking a relief viz., the decree holder cannot be allowed to be at the mercies or whims and fancies of the opponent as the case may be.
11.On a careful consideration of the arguments advanced on the side of revision petitioner and on going through the relevant typed set of papers filed in the present case and on considering the available material on record, this Court comes to the inevitable conclusion that the revision petitioner/defendant has not assigned cogent, convincing and acceptable reasons, in his affidavit in regard to the condonation of delay of 3351 days and the reasons mentioned by him in the said affidavit have not inspired the confidence of this Court and resultantly, the order of the trial Court in dismissing the said application does not suffer from any irregularity or patent illegality and as such the civil revision petition fails.
12.In the result, the Civil Revision Petition is dismissed without costs. Consequently, connected miscellaneous petition is closed.
sgl To The District Munsif, Panruti