Madras High Court
K.Balasubramanian (Died) vs S.Parvathy Ammal (Died) on 2 December, 2020
Author: R.Mahadevan
Bench: R.Mahadevan
C.R.P(NPD)(MD)No.241 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.12.2020
CORAM
THE HON'BLE MR.JUSTICE R.MAHADEVAN
C.R.P(NPD)(MD)No.241 of 2014
1.K.Balasubramanian (Died)
2.B.Manikandan
3.S.Kasiyammal
4.R.Sivakami
5.S.Ambiga
(Petitioners 2 to 5 are brought on record as
LRs of the deceased sole petitioner
as per the order of this Court dated 30.07.2019
in CMP.(MD)Nos.6642, 6643 and 6645 of 2019) ... Petitioners
Vs.
S.Parvathy Ammal (Died)
S.Sudalaimuthu ... Respondent
Prayer: Civil Revision Petition filed under Section 115 of the Civil
Procedure Code, against the fair and decreetal order dated 26.06.2012
passed in I.A.No.393 of 2010 in O.S.No.34 of 2006, on the file of the
Sub Court, Thoothukudi.
For Petitioners : Mr.G.Rajaraman
For Respondent : Mr.S.Sivathilagar
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C.R.P(NPD)(MD)No.241 of 2014
ORDER
The order dated 26.06.2012, passed by the learned Sub Judge, Thoothukudi, in I.A.No.393 of 2010 in O.S.No.34 of 2006 is under challenge, in this Civil Revision Petition.
2.The case in brief would run thus:
Originally, the father of the petitioners viz., K.Balasubramanian had filed a suit in O.S.No.34 of 2006 on the file of the Sub-Court, Thoothukudi, for the relief of specific performance in respect of the plaint schedule property. The said suit was decreed exparte, by order dated 22.12.2008, against which, the respondent filed an application to set aside the exparte decree along with an Interlocutory Application in I.A.No.393 of 2010 seeking to condone the delay of 423 days in filing the same. The trial Court allowed the said condone delay application subject to payment of costs of Rs.1,000/- to the plaintiff, vide order dated 26.06.2012. Aggrieved over the same, the present Civil Revision Petition came to be filed by the plaintiff. Pending the same, the original plaintiff died and his legal heirs were brought on record as the petitioners 2 to 5 in this Revision Petition.
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3.The learned counsel appearing for the petitioners submitted that the respondent has not adduced sufficient reasons for the delay in filing the application to set aside the exparte decree and hence, the said application ought to have been dismissed. However, the trial Court has allowed the said application, on payment of costs, which is erroneous, illegal and against the settled principles of law. Thus, according to the learned counsel, the order impugned herein has to be set aside.
4.The learned counsel appearing for the respondent submitted that the trial Court, after considering the facts and circumstances of the case and upon perusal of the evidence and materials placed before it, has rightly allowed the petition and condoned the delay in filing the application to set aside the exparte decree, subject to payment of costs. Hence, according to the learned counsel, the impugned order does not call for any interference by this Court.
5.Heard both sides and perused the materials placed before this Court.
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6.It is an admitted fact that the suit filed by the original plaintiff, was decreed exparte, which prompted the respondent to file an application to set aside the exparte decree along with an application to condone the delay of 423 days in filing the same. The trial Court, on merits, has allowed the application by condoning the delay in filing the application to set aside the exparte decree. Hence, this Civil Revision Petition by the petitioners.
7.The power vested with the trial Court, while dealing with an application under Section 5 of the Limitation Act is a discretionary power. The said discretion is exercised based on the peculiar facts of each and every case. In a catena of decision, the Supreme Court as well as this Court held that while giving a liberal approach to an application made under Section 5 of the Limitation Act, the merits of the case should also be looked into. A few of the same, for better appreciation, is reproduced hereunder:
(i) M.K.Prasad v. P.Arumugam, CDJ 2001 SC 404:
“While deciding the application for setting aside the exparte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the http://www.judis.nic.in 4/13 C.R.P(NPD)(MD)No.241 of 2014 inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs.”
(ii)Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao and Others, CDJ 2002 SC 190:
“13. 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 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.”
(iii)N.Balakrishnan vs. M.Krishnamurthy, 1999-1-L.W.739:
“A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”
(iv)V.Amudha v. S.A.Arumugham and 2 others, 2000-1-L.W. http://www.judis.nic.in 5/13 C.R.P(NPD)(MD)No.241 of 2014 547:
“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. 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 lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest republicate 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 tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” http://www.judis.nic.in 6/13 C.R.P(NPD)(MD)No.241 of 2014
(v)S.Rajaram vs. S.Seenivasan, 2007 (4) CTC 136:
“In the case on hand, admittedly there is a delay of thirteen months. The reason adduced by the complainant is that compromise talk was going on between the parties. It is also not in dispute that the accused borrowed a sum of Rupees one lakh from the complainant. So, his stake is heavy. Only a person who lent such a huge amount could not kept silent for a long time and accordingly, the complainant took steps by serving legal notice to the accused/respondent after receipt of intimation of dishonour of cheque from the Bank. So, at this juncture, the complainant cannot be found fault with and he was not negligent and he had taken sufficient steps.”
(vi)Bhagmal and others vs. Kunwar Lal and others, 2010 (5) CTC 827:
“Under such circumstances, the High Court should not have taken the hyper-technical view that no separate application was filed under Section 5. The application under Order IX Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice. Here was a party which bona fide believed the assurance given in the compromise panchnama that the respondent No. 1/plaintiff would get his suit withdrawn or dismissed. The http://www.judis.nic.in 7/13 C.R.P(NPD)(MD)No.241 of 2014 said compromise panchnama was made before the elders of the village. Writing was also effected, displaying that compromise. The witnesses were also examined. Under such circumstances, the non-attendance of the appellants/defendants, which was proved in the further proceedings, was quite justifiable.”
(vii)M/s.Bharat Petroleum vs C.S.Prakasa Rao, CDJ 2014 MHC 3671:
“14.While deciding, whether the delay has to be condoned or not, the nature of the relief claimed in the plaint, the nature of the defence taken and the benefits, that could be sought under Section 9 of the City Tenants Protection Act or in the alternative, to make a claim of compensation under Section 3 of the City Tenants' Protection Act, have to be kept in mind”.
(viii)Padmanabhan vs. I.M.Karthikeyan and 4 others, CRP(MD)Nos.1771 of 2016 and 1153 of 2017 dated 14.08.2018:
“Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute ?sufficient cause? or http://www.judis.nic.in 8/13 C.R.P(NPD)(MD)No.241 of 2014 not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps.
But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide 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. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”
(ix)Karuppiah vs. T.Ramavelar, 2019 (1) TNLJ 47 (Civil):
http://www.judis.nic.in 9/13 C.R.P(NPD)(MD)No.241 of 2014 “Inordinate delay of 543 days unexplained - Application dismissed by the Trial Court - Revision filed - On the settled legal position that merits of the matter should be looked instead throwing it on the aspect of delay, the order of trial Court was set aside.”
8.In the present case, the respondent did not file written statement within the statutory period, which resulted in exparte decree against him. Thereafter, he took out an application to set aside the said exparte decree, along with delay application stating that his advocate clerk failed to note down the hearing dates of the suit and his advocate also did not follow the case and hence, the delay occasioned was not due to the fault on the part of the respondent, but on the part of his counsel. The said reason was proved by examining the witnesses during trial. Considering the same, the trial Court allowed the delay application, subject to payment of costs, observing that the delay in filing the set aside the exparte decree application, was due to the mistake committed on the part of the respondent's counsel and his clerk, for which, the party could not be made to suffer.
9.In the opinion of this Court, the parties must be given an http://www.judis.nic.in 10/13 C.R.P(NPD)(MD)No.241 of 2014 opportunity to put forth and prove the case on merits and the technical approach should not prevent them from proving the case on merits. Thus, the trial Court, after considering the facts and circumstances of the case and upon analysing the evidence and materials placed before it and also in the light of the legal principles, has rightly condoned the delay in filing the application to set aside the exparte decree, of-course, subject to payment of costs. In Salil Dutta v. T.M. & Mc (P) Ltd., [1993] 1 SCR 794, it was observed by the Supreme Court as under:
"It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."
10.In the ultimate analysis, this Court finds no infirmity or illegality in the order so passed by the trial Court, warranting interference.
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11.Accordingly, this Civil Revision Petition stands dismissed. However, the learned Subordinate Judge, Thoothukudi is directed to dispose of the main suit in O.S.No.34 of 2006 pending his file, on merits and in accordance with law, after affording due opportunity of hearing to both the parties, as expeditiously as possible. No Costs.
02.12.2020 Index : Yes/No Internet : Yes/No vsm Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To
1.The Subordinate Judge, Sub Court, Thoothukudi.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
R.MAHADEVAN, J.
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