Madras High Court
D.Soundararaj vs K.Ashok on 2 November, 2011
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 2.11.2011
Coram
The Honourable Mr. Justice R.SUDHAKAR
Civil Revision Petition (N.P.D.) Nos.4110 and 4111 of 2011
and
M.P.No.1 of 2011 in both CRPs.
D.Soundararaj. ... Petitioner/Petitioner/Defendant.
(in both C.R.Ps.)
vs.
K.Ashok. ... Respondent/Respondent/Plaintiff.
(in both C.R.Ps.)
This Civil Revision Petition No.4110 of 2011 is preferred under Section 115 of the Civil Procedure Code against the Order and Decretal Order dated 12.8.2011 passed in I.A.No.799 of 2010 in O.S.No.81 of 2004 on the file of the Principal Subordinate Court, Coimbatore.
This Civil Revision Petition No.4111 of 2011 is preferred under Section 115 of the Civil Procedure Code against the Order and Decretal Order dated 12.8.2011 passed in I.A.No.800 of 2010 in O.S.No.81 of 2004 on the file of the Principal Subordinate Court, Coimbatore.
For petitioner
in both C.R.Ps. : Mr.Shivakumar
-----
COMMON ORDER
The Civil Revision Petition No.4110 of 2011 is filed challenging the Order and Decretal Order dated 12.8.2011 passed in I.A.No.799 of 2010 in O.S.No.81 of 2004 on the file of the Principal Subordinate Court, Coimbatore.
2. The Civil Revision Petition No.4111 of 2011 is filed challenging the Order and Decretal Order dated 12.8.2011 passed in I.A.No.800 of 2010 in O.S.No.81 of 2004 on the file of the Principal Subordinate Court, Coimbatore.
3. Respondent herein filed a suit O.S.No.81 of 2004 on the file of the Principal Sub Court, Coimbatore, for recovery of money against the revision petitioner/defendant. He also filed application I.A.No.678 of 2004 under Order 37 Rule 3(4) CPC seeking judgment under summary proceedings. When the I.A.No.678 of 2004 was posted for enquiry on 29.8.2006, due to non appearance of the defendant, the revision petitioner, he was set ex parte and the I.A.No.678 of 2004 was allowed. Based on the order passed in I.A.No.678 of 2004, ex parte judgment and decree was pronounced in O.S.No.81 of 2004 against the revision petitioner/defendant.
4. Thereafter the revision petitioner/defendant filed I.A.No.799 of 2010 under Section 5 of the Limitation Act to condone the delay of 1489 days in filing the petition to set aside the ex parte decree passed on 29.8.2006 in O.S.No.81 of 2004. He also filed another application I.A.No.800 of 2010 under Section 5 of the Limitation Act to condone the delay of 1489 days in filing the petition to set aside the ex parte order passed on 29.8.2006 in I.A.No.678 of 2004. In both the applications filed for condonation of delay, two reasons have been submitted by the revision petitioner/defendant and it is as follows:-
(i) Revision petitioner/defendant went to Bangalore to attend some important meeting in the month of June, 2006 to January 2007.
(ii) Due to ill-health, the revision petitioner/defendant is unable to contact his counsel.
5. The delay of nearly 3 and half years was seriously opposed by the respondent/plaintiff stating that the revision petitioner/defendant did not produce any document to prove that he was in Bangalore from June, 2006 to January, 2007 and also failed to produce documents relating to ill-health.
6. The Court below rejected both the applications inter alia holding that the revision petitioner/defendant did not appear before the Court at the time of enquiry to explain the delay of 1489 days. The affidavit filed is bereft of particulars and there was no records to support the delay of 1489 days. The Court below relying upon the Apex Court's decision in N.Balakrishnan - vs. - M.Krishnamoorthy reported in 1999(1) MLJ 114 and the Division Bench Judgment of this Court in C.Subramaniam vs. - Tamil Nadu Housing Board represented by its Chairman reported in 200(3) CTC 727 : 2000(3) LW 938, came to conclusion that the applications filed for condonation of delay of 1489 days cannot be accepted due to the inaction on the part of the revision petitioner/defendant for the long period of time. It held that the delay is deliberate and based on the parameters laid down by the Apex Court, the revision petitioner/defendant, has not given convincing reasons to condone the abnormal delay of 1489 days and therefore, he is not entitled to the relief. Accordingly, the Court below dismissed both the applications. Challenging the same the two revision petitions have been filed.
7. The only plea taken by the learned counsel for the revision petitioner is that the medical certificate given by Dr.Varadharajan has not been considered by the Court below. The said medical certificate dated 8.7.2011 is available in page 28 of the typeset of papers. The plea of the counsel for the revision petitioner appears to be totally unacceptable as the medical certificate is given for the absence from duty due to mental depression. The revision petitioner is a business man and he is not an employee in any company or government office. Therefore, the medical certificate is totally irrelevant and appears to be created for the case.
8. In any event for the treatment given to the revision petitioner for two years should have been supported by records and there is none. No medical records or prescription has been produced. Still worse, the so-called medical leave certificate itself has not been marked as document before the Court below. The learned counsel for the revision petitioner fairly concedes that the medical leave certificate was not marked as exhibit before the Court below and it is enclosed as document only before this Court. Revision petitioner is not entitled to rely upon it at this stage. It justifies the doubt that has occurred to the mind of the court. The revision petitioner has not explained his absence from Coimbatore from June, 2006 to January, 2007 which is almost seven months. The so-called important meeting at Bangalore has also not been explained. The statement of delay is vague and evasive.
9. The recent decision of the Apex Court in Lanka Venkateswarlu (D) by Lrs. - vs. - State of A.P. and others reported in 2011- 3- L.W. 26 has clearly held that discretionary powers, especially, judicial powers, have to be exercised within reasonable bounds known to law. The Court does not enjoy unlimited and unbridled discretionary power. It also holds that "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation, especially, in cases where the Court concludes that there is no justification for the delay. Paragraphs 17 and 26 which is relevant is extracted hereunder:-
" (17) .... Even though the Courts have power to condone the delay, it cannot be condoned without any justification. Such an approach would result in rendering the provisions contained in the Limitation Act redundant and inoperative."
"(26) We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", " Justice oriented approach", " substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. "
10. The Court below was justified in dismissing both the applications filed for condonation of delay in the absence of proper reasons and in the absence of proper material or records. This Court is not inclined to interfere with the order under challenge as there is no infirmity or irregularity in the order.
11. Finding no merits, the two Civil Revision Petitions are dismissed at the admission stage. No costs. Consequently, connected miscellaneous petitions are closed.
ts To The Principal Subordinate Judge, Coimbatore