Madras High Court
M.Ramasamy Gounder vs S.Karuppathal on 25 March, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 25.03.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.R.P.(NPD).No.335 of 2008 and M.P.No.1 of 2008 M.Ramasamy Gounder .. Petitioner Vs. 1.S.Karuppathal 2.S.Ramathal 3.S.Nanjammal 4.C.Kuttiyammal 5.S.Valliyammal 6.P.Sarasu 7.K.Avanasiappan 8.K.Kandasamy .. Respondents Prayer:-This revision petition is filed under 115 of CPC against the order dated 28.08.2007 in I.A.No.954 of 2005 in O.S.No.42 of 2002 on the file of the Principal District Munsif, Sathyamangalam. For Petitioner : Mr.N.Manokaran, Advocate For Respondents: Mr.I.C.Vasudevan, Advocate O R D E R
The order passed in I.A.No.954 of 2005 in O.S.No.42 of 2002 on the file of the Principal District Munsif, Sathyamangalam, is under challenge. I.A.No.954 of 2005 was filed by the defendant under section 5 of the Limitation Act to condone the delay of 679 days in filing the petition under Order 9 Rule 13 of CPC. The Principal District Munsif after considering the averments in the affidavit and the contentions of the learned counsel for the respondent in his counter and after hearing the learned counsel on both sides has allowed the application on costs of Rs.1000/-. The cost has been deposited into the Court and the petition was allowed. Aggrieved by the orders of the learned Principal District Munsif, Sathyamangalam, in I.A.No.954 of 2005 in O.S.No.42 of 2002, this revision has been preferred by the respondent in I.A.No.954 of 2005 / plaintiff in O.S.No.42 of 2002.
2.Heard the learned counsel for the revision petitioner Mr.Manokaran, who would contend that each and every day's delay is to be explained properly, but the applicants in I.A.No.954 of 2005 have failed to explain each and every day's delay. In support of his contention, the learned counsel for the revision petitioner would rely on 2007(4) LW 639 (R.Jacob Vs. C.Prabakar), wherein the application filed under Section 5 of the Limitation Act to condone the delay of 2006 days was allowed by the learned II Assistant Judge, City Civil Court, Chennai, on payment of cost of Rs.1000/-, and on revision this Court has allowed the revision with the following observation:-
"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 do not mean favour to the applicant at the cost of affecting the valuable right accrued to the opposite party."
But the facts of the above said case is that the suit O.S.No.5295 of 1996 was filed for specific performance of the contract. The defendant 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 ie., on 21.11.2000. For execution of the decree, plaintiff has filed EP.No.259 of 2006 and the defendant has received notice in the execution proceedings on 7.7.2006. Only thereafter, the defendant filed IA.No.10600 of 2006 seeking condonation of delay of 2006 days in filing application to set aside the exparte decree. Only under such circumstance, this Court has held that the said application cannot be encouraged by imposing cost, which will affect the valuable right of the plaintiff.
3.In 2007(2) CTC 643 (Jayaraman.G Vs. Devarajan), the trial Court has condoned the delay of 553 days in filing the application to set aside the exparte decree. While allowing the revision, it was observed by this Court as follows:-
"Discretion must not be exercised in an arbitrary or vague manner but must be exercised with vigilance and circumspection. Delay cannot be condoned as matter of judicial generosity. Right accrued to other side ought to be kept in view while considering plaint relating to affording opportunity to advance substantial justice."
The facts of the said case is that the plaintiff filed O.S.No.204 of 1998 before the District Munsif, Kancheepuram, for recovery of a sum of Rs.68,000/-. After service of suit summons, the defendant was set exparte on 20.11.1998 since he failed to appear for the hearing on 20.11.1998. The defendant filed I.A.No.858 of 1998 under Order 9 Rule 7 CPC to set aside the exparte decree. The same was allowed on 27.11.1998. The suit was posted for filing written statement on various dates from 27.11.1998 to 30.06.2003. Thereafter, the defendant filed I.A.No.71 of 2005 under Section 5 of the Limitation Act to condone the delay of 563 days in filing the application to set aside the exparte decree dated 30.06.2003. The trial Court had allowed the application. While allowing the revision, this Court has set aside the order of the Trial Court observing that 'delay cannot be condoned as a matter of judicial generosity and exercise ofdiscretion would cause prejudice to the plaintiff / decree holder'. But the facts in the above said ratios differ from the facts of the present case. In the affidavit to I.A.No.954 of 2005 the reasoning stated for the delay of 670 days in preferring the petition to set aside the expate decree by the defendant is that they have engaged an advocate Mr.K.R.Somasundaram who had obtained their signatures in unwritten white papers and informed the adjournment dates at the beginning. But he has failed to inform about the date of hearing of the suit for filing written statement and he has also failed to inform the subsequent dates of hearing of the suit, and that all the defendants have entrusted their case only to advocate Mr.K.R.Somasundaram and along with him, Advocate Manimegalai also appeared for D2 to D6 and Advocate Mr.Sivakumar appeared for D8 to D10. Taking advantage of the fact that the defendants are illiterate the above said advocates failed to participate in the hearing of the case, which resulted in an exparte decree passed against them, and that only due to the lapse of their advocate Mr.K.R.Somasundaram, they could not file a petition to set aside the exparte decree within time, and that they have got good defence in the suit.
4.In a similar circumstance, in AIR 1981 SC 1400 (Rafiq and another Vs. Munshilal and another) the Honourable Apex Court has held as follows:-
"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr.A.K.Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr.A.K.Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
The facts of the above said case in all four corners fit in with the facts of the case on hand. The Court below taking into consideration the plight of the applicant in I.A.No.954 of 2005 had allowed the application on payment of cost of Rs.1000/-, which has already been deposited with the Court.
5.The learned counsel for the revision petitioner Mr.Manokaran would further contend that the petition filed by all the defendants is also not maintainable because the suit was decreed exparte on 09.12.2002. The defendants 2 to 6 alone have filed a petition on 8.1.2003, but again the suit was decreed exparte on 29.12.2003. All the defendants including D1, D7 to D10 have filed I.A.No.954 of 2005 to condone the delay of 678 days on 08.12.2005 under section 5 of the Limitation Act. According to the learned counsel this application is not maintainable because an exparte decree was passed against D2 to D6 on 29.12.2003 itself was not set aside till today. No doubt the days regarding delay in preferring a petition under section 5 of the Limitation Act by D1, D7 to D10 in one set, and by D2 to D6 in another set may vary. But the fact remains that all the defendants have entrusted the work to one counsel viz. Mr.K.R.Somasundaram to defend them and that he had failed to inform the date of hearing for filing the written statement, which resulted in an exparte decree against them on 29.12.2003. Under such circumstance, I am of the view that the petition filed by D1, D7 to D10 under I.A.No.954 of 2005 cannot be held to be not maintainable. Under such circumstance, I do not find any reason to interfere with the findings of the learned District Munsif, Santhyamangalam, in I.A.No.954 of 2005 in O.S.No.42 of 2002.
6.In fine, the revision is dismissed confirming the order passed in I.A.No.954 of 2005 in O.S.No.42 of 2002 on the file of the District Munsif, A.C.ARUMUGAPERUMAL ADITYAN, J.
Sathyamangalam. The learned trial Judge is directed to dispose of O.S.No.42 of 2002 in accordance with law after giving an opportunity to the defendants to file their written statement within three months from the date of receipt of copy of this order. No costs. Connected Miscellaneous Petition is closed.
25.03.2008 Index:yes/No Internet:yes/No ssv To, The District Munsif, Santhyamangalam.
C.R.P.(NPD).No.335 of 2008