Madras High Court
E.Lakshmi vs M.Elumalai on 25 April, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.04.2018 CORAM THE HON'BLE MR. JUSTICE M.V.MURALIDARAN C.R.P. (NPD) No.1872 of 2005 and CMP.No.6726 of 2006 1. E.Lakshmi 2. Udayakumar 3. Charumadhi .. Petitioners Vs. M.Elumalai .. Respondent Revision filed under Section 115 of the Code of Civil Procedure against the order dated 31.1.2005 made in I.A.No.2001 of 2004 in O.S.No.93 of 2003 on the file of the II Additional Principal Judge, Family Court, Chennai. For Petitioner : Mr.V.Bhiman For Respondent : Not ready notice ORDER
The petitioners have filed this revision under Section 115 of the Code of Civil Procedure against the order dated 31.01.2005 made in I.A.No.2001 of 2004 in O.S.No.93 of 2003, on the file of the learned II Additional Principal Judge, Family Court, Chennai.
2. The facts in a nutshell are as under:
The petitioners herein filed the suit in O.S.No.93 of 2003, inter alia, to permit them to file the suit as indigent persons; to pass a decree directing the respondent/ first defendant to pay to the plaintiffs future maintenance of Rs.3,500/- per mensem; to direct the respondent/first defendant to pay a sum of Rs.56,000/- towards past maintenance; to create a charge over the schedule mentioned property.
3. The Court below set ex parte the respondent/first defendant and passed a decree and judgment dated 22.08.2003 granting the relief sought by the petitioners/plaintiffs.
4. The respondent/first defendant filed an application, being I.A.No.2001 of 2004, under Section 5 of the Limitation Act seeking to condone the delay of 153 days in filing the petition to set aside the ex parte decree, specifically pleading that the suit summons were not served on the respondent/first defendant and that he came to know about the proceedings only on receipt of notice in E.P.No.49 of 2003.
5. The Court below, by order dated 31.01.2005, allowed the application filed by the respondent/first defendant and condoned the delay of 153 days in filing the application.
6. Assailing the said order dated 31.01.2005, the present revision is filed.
7. The learned counsel appearing on behalf of the petitioners submitted that the respondent/first defendant had not chosen to partake in the suit proceedings right from its inception and only when execution proceedings were filed for attachment of property, he appeared and filed the petition for condonation of delay and, therefore, such delay ought not to have been condoned without any sufficient cause.
8. I heard Mr.V.Bhiman, learned counsel for the petitioners and perused the documents available on record.
9. The Court below, on perusal of the records, arrived at a categoric finding, on facts, that the suit summons were not seen to have been served in person on the respondent/first defendant. It is only on this ground that the Court below held that since the suit summons was not served personally to him, I am of the view that one more opportunity could be given to him for participating in the Court proceedings and, accordingly, the delay of 153 days has to be condoned in filing the application to get the exparte decree set aside.
10. The Hon'ble Supreme Court, time and again, held that the power to condone delay by enacting Section 5 of the Limitation Act, 1963 is to enable the Courts to do substantial justice to parties by disposing of matters on merits; that the expression sufficient cause employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which serves the ends of justice which is the life purpose for the existence of the institution of Courts; substantial justice deserves to be preferred as against technical considerations; and the Courts should prefer to deliver justice on merits in preference to the approach which scuttles a decision on merits.
11. It is trite that the Courts are empowered to allow the application for condonation of delay, on sufficient cause being shown or reject such an application in exercise of its judicious discretion. However, such judicious discretion to condone the delay by adopting a liberal approach has to be exercised only in deserving cases, and not in cases where the delay is on account of lethargic attitude and negligence on the part of the applicant. It is not as if each application for condonation of delay has be allowed as a matter of right, no matter whether any sufficient cause for the delay is shown or not. Each case is to be decided on facts and circumstances. The length of delay is no matter. All that matters is the acceptability of explanation.
12. In the case on hand, no material has been produced to show that the suit summons were served on the respondent/first defendant. When the Court below, on facts, found that the suit summons were not served on the respondent/first defendant and in the interest of justice held that one more opportunity should be given to the respondent/first defendant for participating in the Court proceedings, such judicious discretion exercised, in my considered opinion, should not be interfered with.
13. For the foregoing reasons, this civil revision petition is dismissed. No costs. Consequently, C.M.P.No.6726 of 2006 is closed. The Court below is directed to expedite the suit proceedings and decide the same on merits and in accordance with law within a period of two months from the date of receipt of a copy of this order.
25.04.2018 vs Index : Yes Internet : Yes To The II Additional Principal Judge, Family Court, Chennai.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P. (NPD) No.1872 of 2005 and CMP.No.6726 of 2006 25.04.2018