Madras High Court
R. Jacob vs C. Prabakar on 30 November, 2006
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Revision Petition arises out of the Order of II Assistant/City Civil Court, Chennai in I.A. No. 10600/2006 in O.S. No. 5295/1996, allowing the Petition under Section 5 of the Limitation Act and condoning the delay of 2006 days, on payment of cost of Rs. 1,000/-.
2. Brief facts of the case are as follows:
2.1.The Respondent/Plaintiff filed O.S. No. 5295/1996 for Specific Performance. The Defendant has entered appearance and filed Written Statement denying execution of the Agreement of Sale. The suit was posted in the list on 15.11.2000. PW-1 was examined in Chief on 15.11.2000 and the case was adjourned to 21.11.2000. On 21.11.2000, there was no representation for the Defendant and hence the Defendant was called absent and the suit was decreed exparte on the same day i.e. on 21.11.2000. For execution of the Decree, Plaintiff has filed E.P. No. 259/2006 and the Defendant has received Notice in the Execution Proceedings on 07.07.2006.
2.2. On receipt of Notice in the E.P., the Petitioner has filed I.A. No. 10600/2006 seeking condonation of delay of 2006 days in filing application to set aside the exparte Decree. According to the Defendant, he had several family problems and hence he was unable to give necessary instructions to his counsel and could not get along with the matter. The Revision Petitioner/Plaintiff has resisted that application.
2.3. Finding that sufficient cause has been shown by the Petitioner for the delay and placing reliance upon 2002 (1) CTC 769, [Ram Nath Sao and Ors. v. Gobardhan Sao and Ors.] the lower Court has allowed the application, condoning the delay of 2006 days on payment of cost of Rs. 1,000/-, which is challenged in this revision.
3. The learned Counsel for the Revision Petitioner has submitted that the inordinate delay of 2006 days has not been properly explained and while so, the Court has erroneously condoned the delay. Placing reliance upon [Ramlal Motilal and Chotelal v. Rewa Coalfields Ltd.] it was further submitted that condonation of delay is not a matter of right and liberal construction of the expression "sufficient cause" cannot be stretched to such an extent of condoning the inordinate delay, which has not been satisfactorily explained.
4. The learned Counsel for the Respondent has submitted that even after obtaining the Decree, the Decree Holder has not applied for executing the Decree. E.P. has been filed only in 2006 and opportunity ought to be given to the Defendant to contest the matter. It was further submitted that if opportunity is not given in a suit for specific performance, the Defendant would be subjected to great hardship.
5. I have carefully examined the materials on record and considered the submissions. Case of the Revision Petitioner/Plaintiff is that the Respondent has agreed to sell the superstructure part bearing No. 33, Kattoor Nallamuthu Achari Street, Choolai, Chennai for Rs. 24,000/- and he has paid the entire sale consideration. The Defendant is said to have executed an Agreement of Sale on 22.04.1993 and the Plaintiff was also put in possession of the suit property in part performance of the contract. Since the Defendant has not executed the Sale Deed, after issuing Advocate Notice on 13.01.1996, the Plaintiff has filed the suit for Specific Performance. The Defendant has filed Written Statement denying the execution of the Agreement of Sale and also denied receipt of sale consideration. After framing issues, the suit was posted in the Special List on 15.11.2000 and the Plaintiff was examined as PW-1. When the case was posted for PW-1's cross examination on 21.11.2000, the Defendant did not turn up and hence the suit was decreed exparte.
6. According to the Defendant, he had family problems and that he could not give instructions to his counsel and could not get along with the matter. In exercising the discretion under Section 5 of the Limitation Act, for 'sufficient cause', the Court has to require distinct proof from the party on whom the burden lies. It became necessary for the applicant to prove sufficient cause, explaining the inordinate delay of 2006 days. The reasons stated by the Petitioner that he was having family problems is not explained and not convincing. 2006 days means nearly a period of 51/2 years, which has not been satisfactorily explained by the Revision Petitioner.
7. Holding that for condoning the delay, the applicant has not explained the reasons for the delay covered by the period between the last day of limitation and the date on which the application was filed, in 1962 (2) SCR 762 [cited supra], the Supreme Court has held:
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 bonafides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bonafides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act.
8. The lower Court does not seem to have tested the bonafide and due diligence of the Petitioner. The lower Court has applied the decision of the Supreme Court in 2002 (1) CTC 769 [cited supra]. The said case arose out of the delay in filing the applications to set aside abatement of suit for failure to bring the legal heirs on record. In that context the Supreme Court has observed as follows:
7. The expression 'sufficient cause' within the meaning of Section 5 of the Limitation Act, 1963 [hereinafter referred to as 'the Act'], Order 22 Rule 9 of the Code of Civil Procedure [hereinafter referred to as 'the Code'] as well as similar other provisions and the ambit of exercise of powers thereunder have been subject matter of consideration before this Court on numerous occasions. In the case of The State of West Bengal v. The Administrator, Howrah Municipality and Ors. , while considering the scope of the expression 'sufficient cause' within the meaning of Section 5 of the Act, this Court laid down that the said expression 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.
9. There can be no doubt in holding that Section 5 of the Limitation Act, Order 22 Rule 9 CPC and similar provisions should receive liberal construction. But, can the same ratio be applied to the exparte Decree in a suit for Specific Performance which the Defendant seeks to set aside after a period of six years is the question to be considered.
10. It is not the length of the period of delay which is vital, but how the delay has been explained assumes importance. Even if a liberal interpretation is to be given then also, the unexplained long delay of nearly 51/2 years cannot be condoned. If the delay of this nature is to be condoned, valuable right accrued to the Plaintiff over years back would be unsettled. At one point or other, there has to be a finality of litigation. Ends of justice does not mean favour to the applicant at the cost of affecting the valuable right accrued to the opposite party.
11. In 1999 (1) MLJ 114(SC) [Balakrishnan v. Krishnamurthy] the Supreme Court has held that rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort 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.
12. In [Popat and Kotecha Property v. State Bank of India Staff Association] the Supreme Court has held that the law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy.
13. The subject matter of the Agreement of Sale appears to be superstructure on a small strip of site measuring 190 sq.ft. Over the years valuable right has been accrued. The Plaintiff and the settled state of things cannot be disturbed on the ground that the Defendant has come out with an application with vague reasons that he had family problems. There is no proper exercise of discretion by the lower Court in condoning the delay and the impugned Order cannot be sustained.
14. In the result, the Order made in I.A. No. 10600/2006 in O.S. No. 5295/1996 dated 30.8.2006, by the II Assistant Judge, City Civil Court, Chennai is set aside and this Revision Petition is allowed. Consequently, MP No. 1/2006 is closed.