Madras High Court
P.R.Ravichandran vs K.Aswani Kumar on 4 August, 2015
Bench: S.Manikumar, M. Venugopal
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 04.08.2015 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE M. VENUGOPAL M.P.No.2 of 2014 in A.S. SR No.28282 of 2014 1.P.R.Ravichandran 2.R.Swetha 3.R.Swathy 4.Minor R.Gowtham ... Petitioners/Appellants Vs. K.Aswani Kumar Respondent Prayer in MP No.2 of 2014: The Miscellaneous Petition filed under Section 5 of Limitation Act, to condone the delay of 1206 days in filing the appeal against the judgment and decree dated 31.08.2010 made in O.S.No.72 of 2010 by the learned District Judge, District Court No.II, Kancheepuram. Prayer in A.S.Sr.No.28282 of 2014: The Appeal Suit is filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 31.08.2010 made in O.S.No.72 of 2010 by the learned District Judge, District Court No.II, Kancheepuram. For Petitioners/Appellants : Mr.S.Parthasarathy, Sr.Counsel for Mr.S.Prabhu For Respondent : Mr.Avinash for Mr.V.Raghavachari ORDER
(Order of the Court was made by S.MANIKUMAR, J.) This Miscellaneous Petition has been filed to condone the delay of 1206 days.
2. In the supporting affidavit, to the condonation petition M.P.No.2 of 2014, the petitioners have contended that the respondent has filed a suit in O.S.No.72 of 2010 before the learned District Judge, Kancheepuram for specific performance and mandatory injunction, alleging that the 1st petitioner, has entered into an agreement to sell the subject property, for sale consideration of Rs.25 Lakhs on 28.05.2007. Further contention has been made that in the suit a sum of Rs.1,50,000/- was paid in advance and time for execution of the sale agreement was one month i.e. 27.06.2007 and that the respondent was ready and willing to pay the balance amount for completion of sale. Though, the respondent issued a notice dated 07.09.2007 for compliance, sale agreement was not executed. Hence, the suit for specific performance.
3. In the supporting affidavit to the condonation petition, petitioners have further contended that DW1 was examined. Thereafter, Kancheepuram Advocates' Association, boycotted the Court. The 1st petitioner was under the impression that the case would be adjourned. In the meantime, he had developed ailments such as Diabetes Mellitus, Hypertension with Eye related problem and he underwent treatment at Trinity Acute Care Hospital, Mylapore, Chennai, during January 2011 and was advised bed rest.
4. The 1st petitioner has further submitted that he shifted his residence from Kancheepuram to Chennai and for the abovesaid reasons, from January 2011 to March 2012, he was under medication. His Blood Pressure was also fluctuating and he developed Hyperglycemia. When the 1st petitioner came to know about the filing of the execution petition, he immediately, contacted his counsel and came to know that the suit for specific performance was decreed by the learned District Judge, Kancheepuram on 31.08.2010. The learned counsel for the petitioners has filed copy application on 17.09.2010 and that it was made ready on 18.02.2011. However, the learned counsel for the petitioners did not communicate the same in time, owing to the petitioner's non-availability in Kancheepuram. The 1st Petitioner has further submitted that he is the only adult male member in his family, and he has to pay a sum of Rs.1,87,500/- for preferring an appeal to this Court. Since, he had already suffered heavy financial setback owing to his ill health, he could not arrange such a huge amount, towards the court fee and after mobilising the funds in the 2nd week of March 2014, the appeal was filed on 24.03.2014. Thus, he has explained the delay of 1206 days in filing the appeal against the judgment and decree in O.S.No.72 of 2010 on the file of the learned District Judge, Kancheepuram, dated 31.08.2010.
5. Opposing the petition filed for condonation, the respondent has submitted that suit in O.S.No.72 of 2010 filed by him for enforcement of a contract was decided and that the suit was decreed on 31.08.2010. Pursuant to the judgment and decree, dated 31.08.2010 in O.S.No.72 of 2010 on the file of the learned District Judge, Kancheepuram, execution petition was filed on 16.02.2011. Petitioners had deliberately avoided their presence and the execution petition was ordered exparte on 08.11.2012. Subsequently, an application was filed on 19.04.2013 by the petitioners to set aside the exparte order dated 08.11.2012 under Order 21 Rule 106 CPC.
6. The respondent in his counter affidavit has further stated that the reason given for setting aside the exparte order was that the petitioner was suffering from diabetes for the past ten years and due to family circumstances, he was unable to maintain his health properly. The respondent has further contended that, in variance and contrary to the averments mentioned in the supporting affidavit to the petition filed for setting aside the exparte order dated 08.11.2012, now, in the present condonation application M.P.No.2 of 2014 in AS.Sr.No.28280 of 2014, the petitioner has contended that he was suffering from eye related problems, diabetes, blood pressure and that he was under treatment.
7. The respondent has further stated that from April 2013 to September 2014, delay has not been satisfactorily explained. In addition to the above, Mr.Avinash, learned counsel for the respondent submitted that the petition to condone the delay lacks bonafides and that there is also suppression of fact. On the above aspect, he submitted that when the petitioner has filed an application to set aside the exparte order dated 08.11.2012, passed in the execution petition, the said fact does not find place in the supporting affidavit filed to the present condonation petition. Further, placing on the decision in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another, reported in 2015 (1) Supreme Court Cases 680, the learned counsel for the respondent, prayed for dismissal of the condonation petition.
8. Heard the learned counsel for the parties and perused the materials available on record.
9. Suit has been decreed on 31.08.2010. Even as per the supporting affidavit, copy application was filed on 17.09.2010 and made ready on 18.02.2011. Though, the petitioner has contended that he was under the bonafide impression that due to agitation and boycott, his case would be adjourned without any effective hearing and also submitted that he shifted his business from Kancheepuram to Chennai on account of ill health, that cannot be the reason for not diligently prosecuting the case from June 2011 to March 2014. Even taking it for granted that there was a boycott, yet it is the duty of the litigant to ascertain from the learned counsel, the next date of hearing.
10. As rightly pointed out by the learned counsel for the respondent, when the 1st petitioner was aware of the execution petition and also the exparte order dated 08.11.2012 and having taken out an application to set aside the exparte order dated 08.11.2012, under Order 21 Rule 106 CPC on 19.04.2013, for the reason that he was suffering from diabetes for nearly ten years, yet, he has not chosen to make any averments in the present petition regarding the steps taken in the year 2013, to set aside the exparte order. From the above, it could be deduced that the 1st petitioner was fully aware of the exparte decree and also of the order dated 08.11.2012 made in the execution petition filed by the respondent. Fact that he had filed an application to set aside the exparte order dated 08.11.2012 under Order 21 Rule 106 CPC on 19.04.2013, makes it clear that the 1st petitioner was fully aware of the exparte decree. Hence, suppression of fact in the present supporting affidavit filed for condonation of 1206 days is per se apparent.
11. Yet another fact brought to the notice of this Court is that the 1st petitioner has filed the application to set aside the exparte order dated 08.11.2012 on the sole ground that he was suffering from diabetes for ten years. As rightly pointed out, in variance to the above, in the present supporting affidavit, he has added many more diseases like hypertension, eye related problems, taking treatment at Trinity Acute Care Hospital from 2011 to 2014, etc. When the petitioner had filed an application on 19.04.2013, to set aside the exparte order dated 08.11.2012, there is no reason as to why, he did not file an application to condone the delay in preferring an appeal against the exparte judgment and decree.
12. In H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another, reported in 2015 (1) Supreme Court Cases 680, the Hon'ble Supreme Court, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649 at paragraph Nos.23 and 24, held as follows:
23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) 21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weight the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
24. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.
13. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case.
14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. 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 case 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 period 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. It 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?
14. In N.Balakrishnan versus M.Krishnamurthy, reported in 1998 (2) CTC 5 33 , this Court held as follows:
"14. It must be remembered that in every case of delay there can be some lapse 'on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the ex-planation does not smack of mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliber-ately to gain time then the court should lean against acceptance of the explanation "
15. In the Hon'ble Division Bench Judgment of our High Court, in C.Subramaniam versus Tamil Nadu Housing Board rep. by its Chairman And Managing Director, reported 2000 (3) CTC 727 = 2000 3 L.W. 938, the position has been stated, as hereunder.
31. To turn up the legal position, (1) the work "sufficient cause" should receive liberal construction to do substantial justice; (2) what is "sufficient cause" is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion' (5) once the Court accepts the explanation as "sufficient", it is the result of positive exercise of discretion and normally the superior court should not disturb in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship, the' discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor; (9). If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether.
16. In M.K. Prasad versus P. Arumugam, reported in 2001(6) SCC 176, it has been held as under in para 9.
9. Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed 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. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay....
17. In Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others, reported in 2002(3) SCC 195 = 2002-3-L.W.417, the position has been succinctly set out in para 12 which reads as under:
12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner....
18. Judgment in Sundar Gnanaolivu rep. By his Power of Attorney Agent Mr.Rukini Vs. Rajendra Gnanavolivu rep. By his Power of Attorney Agent Veina Gnanavolivu, reported in 2003 (1) LW 585 (DB), can also be made applicable to the facts of this case, as there is not only lack of bonafides, on the part of the petitioner, but there is also a failure on his part in bringing forth the true facts, regarding the knowledge of exparte decree.
19. In Sundar Gnanavolivu's case, after considering a catena of decisions, the Hon'ble Division Bench, at paragraph Nos.15 and 16, held as follows:
"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 to 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 delay 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 ex-planation 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 compen-sating the prejudice caused to the other side monetarily, the condonation of delay can be favourbly ordered.
16. As held by His Lordship Mr. Justice M. Srinivasan, as he then was, in the Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin versus Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the rules prescribing the period of limitation have to be obeyed by the concerned party and in order to get over such period prescribed, sufficient explanation should be tendered. His Lordship was pleased to hold that question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a litigant cannot be expected to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.
20. In Kaliammal and Others Vs. Sundharammal and another, reported in 2006 (5) CTC 822, a learned Single Judge, of this Court, on the facts and circumstances of the case, held that the interest of justice warrants that, there must be finality to the litigation and in absence of such finality, rights accrued to the opposite party would be unsettled by uncertainties of litigation.
21. In Union Bank of India, Oppanakara Street, Coimbatore 641 001 Vs. K.R.Jewellers and Others, reported in 2008 (5) CTC 651, whereas a Hon'ble Division Bench of this Court held that mere allegation of negligence against a counsel is not a ground to condone the delay, because, the party has equal responsibility to follow up the matter. In the above reported case, there was a delay of 1287 days, in filing the appeal, before the Debts Recovery Tribunal and that the appellate Tribunal, has condoned the delay. Upon consideration of the facts and circumstances, this Court has set aside the order of condonation, by agreeing to the contentions of the respondent therein that mere allegations of negligence against the counsel cannot be a sufficient reason to condone the delay.
22. In C.Raghupathy Vs. C.Govindan and Others, reported in 2009 (1) CTC 319, there was a delay of 942 days, in setting aside an exparte decree. After contest, the application for condonation was dismissed. The reason assigned, by the revision petitioner therein was that his counsel, did not fulfill his obligations properly and hence, there was a delay. Rebutting the same, the respondents therein, have submitted that there was lack of bonafide and when the question of limitation was based on principles of public policy, the victorious litigant should not be expected to remain disgruntled, indefinitely for the period to be determined, at the whims and fancies of opponent. Objection blaming the counsel for the delay has also been resisted on the ground, that it is for the party to keep in contact with him and failure to do so, amounts to negligence. After considering the rival submissions, this Court has accepted the contentions of the respondents therein, and held that "even by engaging a counsel, party to the case is not relieved of his duties and obligations. Where a party either does not fully brief the counsel or keep no contact with him, it is the party who is in default and negligence and has to bear the consequences."
This Court has also observed that "when there is total lack of bonafides on the part of the petitioner, while coming forward with the application, I am of the view that this case does not deserve liberal approach formula in matters relating to condonation of delay. Therefore, the reason adduced by the petitioner that there was a communication gap between him and his previous counsel on record for seeking condonation of extraordinary delay of 942 days in filing an application to set aside the exparte decree has to be dismissed."
23. In Shanmugam Vs. Chokkalingam, reported in 2009 (5) CTC 48, this Court was called upon to test the correctness of the order dismissing the application, seeking condonation of the delay in filing an application, to set aside the exparte decree. The reason assigned in the supporting affidavit was that, he could not avail leave from employment and hence could not appear before the Court. He did not know about the passing of the exparte decree. Only when he met his counsel, he came to know about the decree. After considering a catena of decision, on the aspect as to how and in what circumstances, delay could be condoned or not and on the facts and circumstances, this Court held that there was no illegality in dismissing the application filed for condonation of 332 days in seeking to set aside the exparte decree. It is worthwhile to reproduce the decision relied on in Shanmugam's case:
"9. .... Before going into the merits of the case, it has become absolutely necessary for this Court to refer the Judgment of the Honourable Apex Court reported in MANU/SC/0573/1998 : 1998(7) SCC 123 in between N. Balakrishnan v. M. Krishnamurthy, which reads as under:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not meant to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The words 'sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.
10. Similarly, the judgment of this Court reported in 2002(3) CTC 13 in between Sankaralingam and Anr. v. V. Rahuraman would also enlighten this Court regarding the points to be pondered in a case of condonation of delay. The relevant portion would run as under:
This Court is inclined to point out the following facts and circumstances which would speak volume against the petitioners (i.e.)
(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances,
(b) Vagueness of the affidavit and contradiction between the affidavit and deposition before Court,
(c) Failure to place any materials before Court to substantiate the case, and
(d) Absence of arguable points and law in the defence.
11. In another judgment of this Court reported MANU/TN/0695/2005 : 2005(3) MLJ 439 between Yanaimal Thottam Trust v. B. Lakshmanan and Anr. it has been held as follows:
The power to be exercised under Section 5 of the Limitation Act is a discretionary exercise that is if the trial Court is satisfied that there is sufficient cause that is enough to condone the delay. That was the reason given by the courts below that the party should be given an opportunity to meet the case on merits instead of denying the valuable right on technicalities. The trial Court has exercised the jurisdiction in favour of the respondent to meet the case on merits. It is very well settled that when technicalities and substantial justice are pitted against each other, law and Courts would always be in favour of the substantial justice rather than technicalities.
In yet another judgment of our Honourable Apex Court reported in MANU/SC/0534/1971 : AIR 1972 SC 749 in between State of West Bengal v. Administrator, Howrah Municipality, it has been categorically laid down as follows:
From the above observations it is clear that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.
The other judgment of this Court made in MANU/TN/0705/2005 : 2005(3) MLJ 425 between Periasamy and Ors. v. Allimuthu and Ors. would go to show as follows:
Of course, it may be stated that the third respondent ought to have been more careful in filing the application. The omission to adopt such care need not be used as a ground in refusing to condone the delay. In every pending case, while impleading the legal representatives, in one way or other, there occurs some lapse on the part of the litigant concerned in filing the application to implead the legal representatives. But that alone is not enough to turn down the plea to implead the legal representatives. When there is no inordinate delay, opportunity is to be afforded to bring on record the legal representatives.
12. Similarly the judgment of this Court made in 2004(3) MLJ 36 between Rathinathammal v. Muthusamy and Ors. would run as follows:
Admittedly, the 11th defendant received notice in execution proceedings on 26.11.1996, but she filed the petition I.A. No. 259 of 1998 to condone the delay of 545 days in filing the petition to set aside the exparte decree only on 8.6.1998 stating that she was under the impression that her counsel could have taken steps to set aside the exparte decree which is unbelievable as pointed out by the trial Court that she had to wait for about two years after entrusting the matter to the counsel. Therefore, considering all these facts, the trial Court has rightly dismissed the petition that no sufficient reason was shown by the 11th defendant to condone the delay of 545 days in filling the petition to set aside the exparte decree.
13. On a careful understanding of the aforesaid judgments of our Honourable Apex Court and this Court, I could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bonafide is imputable to a party claiming condonation."
24. In S.Ramakrishnan and two others, Vs. S.Rajeswari, reported in 2010 (6) CTC 10, a learned Single Judge of this Court has considered a case of refusal to condone the delay of 1128 days in filing an application to set aside the exparte decree. The revision petitioner therein has claimed that he had knowledge of the decree only during the execution proceedings. The lower Court has dismissed the application, holding that no sufficient cause was shown. The learned single Judge, on the uncontroverted facts and circumstances, found that though, the revision petitioner therein, had appeared before the Court below, through a counsel, who subsequently failed to cross examine the plaintiff's witness and hence, after adjournments to various dates, a decree came to be passed and in the above said circumstances, held that it is not open to the revision petitioner therein, to plead ignorance of the decree and seek for condonation of the inordinate delay of more than three years.
25. In Kaliaperumal Vs. Parasuraman, reported in 2010 (1) TNCJ 61 (Mad), there was a Delay of 3351 days. The defence taken was that counsel did not inform about proceeding of case. Holding that no reason has been given by petitioner, as to why he himself has not contacted his counsel, this Court rejected the case of the petitioner.
26. In Anthonysamy Vs. Loordhusamy, reported in 2012 (1) TNCJ 914 (Mad), there was a delay of 1486 days. The application for condonation was dismissed. The reason assigned was that the appeal was filed in time, but the papers were mistakenly handed over by the counsel to another client. On the facts and circumstances of the case, the Court below having taken note of the fact that the revision petitioner has participated in the final decree and also in the eviction petition, cannot plead ignorance of legal proceedings and accordingly, upheld the order of dismissal.
27. On the aspect of extending equity to the petitioner, who has approached this Court, without disclosing the entire facts, that he had chosen to file an application to set aside the exparte order made in the Execution Petition, this Court deems it fit to extract few decisions.
(i) In Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, the Supreme Court held as follows:
"12. .......It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
(ii) In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) "When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression clean hands is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for."
(iii) In Halsburys Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms:
1303. He who seeks equity must do equity.In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.
* * * 1305. He who comes into equity must come with clean hands.A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim he who has committed iniquity shall not have equity, and relief was refused where a transaction was based on the plaintiffs fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.
The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiffs demerits.
28. Contention that he had to mobilise funds, cannot be countenanced. The reasons assigned are not only unsatisfactory, but, as rightly pointed out by the learned counsel for the respondent, there is also suppression of fact. The condone delay petition lacks bonafide and hence, this Miscellaneous petition is dismissed and the appeal in A.S.SR No.28282 of 2014 is rejected. No costs.
(S.M.K.,J.) (M.V.,J.) 04.08.2015 Index: Yes Internet: Yes ars To
1. The District Judge, Kancheepuram.
2. The Section Officer, VR Section, High Court, Madras.
S.MANIKUMAR, J., and M. VENUGOPAL,J., ars M.P.No.2 of 2014 in A.S. SR No.28282 of 2014 04.08.2015