Madras High Court
R.M. Arunachalam vs Pl.R. Arunachalam Chettiar And Ors. on 19 October, 2000
Equivalent citations: (2001)1MLJ105
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER V. Kanagaraj, J.
1. The plaintiff in the suit in O.S.No. 55 of 1994 has filed the above civil revision petition against the fair and decretal order dated 22.11.99 made in I.A.No. 263 of 1999 by the Court of Subordinate Judge, Devakottai, on grounds, such as, (i) that the lower court has failed to appreciate that the delay had been properly explained by examination of the petitioner and the Doctor who treated him as well, besides causing production of the document marked as Exs.A-1 to A-10; (ii) that the application under Section 5 should be viewed liberally, which the lower court has failed to consider; (iii) that the lower court has failed to note that the matter involves substantial determination of issues on facts and the same could not be casually dealt with: (iv) that the orders of the learned Subordinate Judge are opposed to the judgment of the Supreme Court reported in N. Balakrishnan v. M. Krishnamurthy : (1998)7 S.C.C. 123. On such grounds, the petitioner would pray to set aside the fair and decretal order of the lower court.
2. Today, when the above matter has been taken up for hearing, in consideration of the pleadings by parties and having regard to the materials placed on record and upon hearing the learned Counsel for both, what is assessed is that, seeking to condone the delay of 558 days, the petitioner has filed an interlocutory application in I.A.No. 263 of 1999 before the lower court mainly on ground that during the period when the delay had occurred to file the necessary petition to restore the suit, he met major calamities in his life, resulting in serious setbacks in his habits and consequently in his health, thus not only physically his health got affected but also had prolonged mental agony, sufferings and afflictions, as a result of which he was not able to take steps in time to restore the suit, which was dismissed for default. The petitioner, pleading that he recouped himself from all his illness and then on the advice of his counsel, he came forward to file the petition, and hence, would pray to condone the said delay of 558 days that had occurred in filing the application to restore the suit.
3. On the other hand, the respondents would stiffly oppose this application before the lower court and this Court as well on ground that the reasons assigned on the part of the petitioner for the delay of 558 days to occur, are unbelievable and unacceptable, and hence, the application should not be allowed at any cost. On the part of the petitioner, he had not only examined himself as a witness entering into the witness box, but also examined his physician in confirmation of the ills that gripped the petitioner during the period when he was not able to prosecute the suit, nor filed the application to restore the same after having been dismissed for default.
4. The lower court, having remarked on the stage of the case stating that it is a case filed by the petitioner seeking declaration and permanent injunction and the defendant have not only filed their written statements, but also a counter claim and when the case was posted on 25.7.1997, since the petitioner did not attend to the court, the lower court had dismissed the suit for default, and that thereafter, only with a delay of 558 days, the petitioner had come forward to file the application under Section 5 of the Limitation Act, seeking to condone the said delay on grounds that he got the worst affected in his private life which preyed heavily in his mind, resulting in himself adopting evil habits, consequent to which, his mental health became affected, and hence, he was not in a position either to prosecute the case, or to file the application in time to restore the suit dismissed for default.
5. Even though convincing reasons have been thus assigned on the part petitioner himself getting into the box to explain his state of mental health, and having examined his physician who treated him besides marking a number of documents, all of which are the medical bills almost covering the entire year 1998, the lower court having not been convinced of the reasons, would ultimately dismiss the application.
6. In the application of this Court, the reasons assigned on the part of the petitioner though not very strong, seem to be genuine and true and the same are acceptable for the purpose of condoning the delay that had occurred in filing the petition to restore the suit. Moreover, the valuable rights of the petitioner are involved in the suit which he himself filed for declaration and injunction regarding the suit properties and such of the rights of the petitioner cannot be compromised on account of the delay in his coming forward to restore the suit dismissed for default.
7. The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could only be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved.
8. Therefore, it is a case of that nature wherein, the petitioner, though left his suit for dismissal on account of default, now, having come forward to show genuine interests, should be given an opportunity to participate in the further trial proceedings in the suit, wherein the lower court will be in a position to decide the valuable rights of parties on merits. However, since by this time, the other side has gone a long way in executing the order obtained in the cross-objection and is in fact reported to have even taken delivery of possession of the suit property on 8.6.1999 as per the order made in E.P.No. 61 of 1998, and hence, in consideration of the hardships and inconveniences undergone on the part of the respondents, this Court is also of the view that the petitioner must be mulcted with heavy costs and in such consideration, a cost of Rs. 2,500 imposed on the petitioner that is to be paid to the respondents will meet the ends of justice. The costs should be deposited within eight weeks from today, for being made available for the respondents to receive the same.
9. The respondents have another request to be made with the court to the effect of not allowing the petitioner to disturb the possession of the suit properties delivered to them on 8.6.1999 and to stay such proceedings from being instituted by the petitioner. This relief cannot be considered by this Court since any such order passed in the C.R.P. when exercising jurisdiction under Section 115, C.P.C. on the question of condonation of delay is susceptible to affect the statutory remedies available to the parties which would mean nothing but setting at naught the legal remedies available to parties, which is undesirable in the circumstances of the case. However, a direction given to the lower court to expedite the proceedings of the trial in the suit starting from where it was left on 25.7.1977, will serve the ends of justice, at the moment.
In result,
(i) the above civil revision petition succeeds and the same is allowed at a cost of Rs. 2,500 which is to be deposited or handed over in person to the respondents, in eight weeks from today;
(ii) the fair and decretal order dated 22.11.1999 made in I.A.No. 263 of 1999 by the Court of Subordinate Judge, Devakottai, is hereby set aside;
(iii) the Court of Subordinate Judge, Devakottai is hereby directed to take up the trial of the suit in O.S.No. 55 of 1994 and expedite the trial procedure with further opportunities for both parties to be heard and shall deliver the judgment in four weeks from the date of receipt of a copy of this order.