Madras High Court
Aruna Jagadeesan vs L.Ganesan And 19 Others on 15 June, 2010
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.06.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN OA.Nos.596 and 762/2010 in CS.No.1036/2005 ORDER :
ARUNA JAGADEESAN, J.
The above said suit in CS.No.1036/2005 was filed by the Respondent/plaintiff for a judgement and decree against the applicants/defendants, directing them to quit, vacate and deliver vacant possession of the suit property, to pay a sum of Rs.72,00,000/- to the Plaintiff towards damages for occupation of the suit property for the period from 5.12.2002 to 4.12.2005, to pay the future damages at the rate of Rs.10,00,000/- per month from the date of filing of the suit until the delivery of vacant possession of the suit property, to pay interest at the rate of 12% p.a. on the amount payable towards damages and for costs of the suit.
2. The above said applications are filed by the Defendants 1 and 2 in the said suit respectively to condone the delay of 1422 days and 1467 days in filing the Written Statement.
3. The reasons given by the applicant/1st Defendant are that the Written Statement though prepared as early as in January 2006 could not be filed, as it was misplaced and that despite thorough search, it could not be traced. It is stated that only when the applications were listed for hearing, the applicant has once again made ready the Written Statement and filed it. Even according to the 1st Defendant, suit summons was issued on them on 3.1.2006 and they immediately entered appearance through their counsel. They also filed an application under Section 9 of the Tamil Nadu City Tenants Protection Act. There is no dispute that the notice in A.No.1123/05 was served on the 1st Defendant through "RPAD" on 3.1.2006. The said application has been disposed of on 6.10.2009. It is not the case of the applicant/1st Defendant that since the application under Section 9 was pending, they have not filed the Written Statement. It is specifically averred that the Written Statement was prepared, but was misplaced.
4. The learned senior counsel Mr.R.Thiayagarjan, for the Respondent pointed out that the affidavits and counter affidavits filed by the applicants are computer generated and therefore, it is futile to contend that the Written Statement prepared along with the application in January could not be retrieved till 4.2.2010 from the system. There is every force in the said submissions made by the learned senior counsel for the Respondent. If the Written Statement had been prepared in January 2006, along with the affidavit in application, there should be no difficulty in retrieving the Written Statement from the system. Even assuming that the applicants were bona fidely prosecuting the application under Section 9 of the City Tenant Protection Act, the said application has been dismissed as early as on 6.10.2009 and this court has directed the suit to be posted under the caption of "undefended board" on 27.10.2009 when his attention was drawn to the fact that no Written Statement was filed by the Defendants. Even thereafter, the Defendants have not filed a Written Statement and the suit was also not posted in the list, which had necessitated the Respondent to represent before the Registrar in writing to post the suit before the court. The Written Statement has been filed by the applicant/1st Defendant only on 5.2.2010 with an application to condone the delay of 1442 days. As rightly pointed out by the learned senior counsel for the Respondent, there is absolutely no explanation for the delay at least for the period from 6.10.2009 to 4.2.2010.
5. According to the 2nd Defendant, one of the partners, who was taking care of certain activities of the firm entrusted legal work to the deponent and he was not informed of the case as there was no much legal issues and he had come to know about the case only through the letter dated 17.9.2009 sent by the Plaintiff. Here also the Written Statement has been filed only on 11.2.2010.
6. The learned senior counsel for the Respondent has cited various decisions of the Honourable Supreme Court and this court, emphasizing that the question of limitation is not merely a technical consideration, but based on principles of sound public policy as well as equity and that a victorious litigant cannot be expected to remain disgruntled indefinitely for a period to be determined at the whims and fancies of the opponent. The decisions cited by the learned senior counsel for the Respondent are given in a chronological order as under:-
1.State by the Deputy Superintendent of Police, CBCID, Coimbatore by Public Prosecutor and another Vs. L.Ganesan and 19 others [1995-3-CTC-185]
2.S.Rajalakshmi Vs. Ambiga Deivasigamani [1997-3-CTC-453]
3.P.K.Ramachandran Vs. State of Kerala and another [AIR-1998-SC-2276]
4.N.Balakrishnan Vs. Krishnamurthy [AIR-1998-SC-3222]
5.Reliance Industries Limited by Reliance Consultancy Services Limited Vs. M.Rajkumari [2001-3-CTC-321]
6.Union of India Owning Southern Railway by General Manager Vs. Krishnammal and 3 others [2001-3-CTC-324]
7.Vijay Syal and another Vs. State of Punjab and others [2003-9-SCC-401]
8.MCD Vs. State of Delhi and another [2005-4-SCC-605]
9.R.J.Jadi & Brothers and others Vs. Subashchandra [2007-6-SCC-420]
10.Mahabir Singh Vs. Subhash and others [AIR-2008-SC-276]
11.C.Reghupathy Vs. C.Govindan and others [2009-3-MLJ-782]
12.Shanmugam Vs. Chokkaingam [2009-8-MLJ-581]
13.Vellaithai and two others Vs. V.Duraisamy [2009-5-LW-880]
14.Katari Suryanarayana and others Vs. Koppisetti Suba Rao and others [2009-4-CTC-286]
15.C.Raghupathy Vs. C.Govindan and others [2009-1-CTC-319]
7. The expression "sufficient cause" is not defined in the Limitation Act. It means "a cause", which is beyond the control of the party invoking the aid of Section 5 of the said Act. The test whether or not a cause is sufficient, is to see whether it is a bona fide cause inasmuch as nothing shall be taken to be done bona fide or in good faith, which is not done with due care and attention. It is only subject to the above test, the words "sufficient cause" should receive liberal construction so as to advance substantial justice. Only when no negligence nor inaction nor want of bona fide is imputable to a party for the delay in filing an appeal, it would constitute sufficient cause.
8. On perusal of the explanation offered, it is clear that the conduct of the applicants has certainly been far from satisfactory and it does appear that they have tried to delay the matters. Even though, the courts have to be liberal in dealing with the belated filing of Written Statement, yet there is a limit upto which such liberal attitude can be extended. In the present case, the applicants are paying only a paltry sum as rent and are deliberately prolonging the case as far as possible. It is also seen that even after the specific direction to post the suit under the caption of "undefended board" in order dated 6.10.2009, the applicants have not chosen to file their Written Statement and there is no explanation for those days. Thus, the conduct of the applicants/Defendants clearly shows that there has been a deliberate inaction and gross negligence on the part of the Defendants.
9. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
10. At this juncture, it is relevant to extract the passage in the words of the Hon'ble Justice P.K.Subramanian in the three Judges Bench of the Honourable Supreme Court made in the case of R.N.Jadi and Brothers and others Vs. Suhashchandra [2007-6-SCC-420] as follows:-
"A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen V. Sir Alfred McAlpine & Sons [1968-2-QB-22:1968-2-WLR-366] that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?"
11. For all the reasons stated above, I am of the considered view that the reasons shown by the applicants/Defendants for such an inordinate delay in filing the Written Statements are not just, proper and satisfactory and the rule of liberal approach cannot be extended in matters relating to condonation of such an inordinate delay. Hence, these applications for condonation of delay merit no consideration and deserve to be dismissed and accordingly, they are dismissed.
15.06.2010 Srcm ARUNA JAGADEESAN, J.
Srcm Pre-Delivery Order in OA.Nos.596 and 762/2010 in CS.No.1036/2005 15.06.2010