Madras High Court
N.Sengoda Gounder vs R.Manickam on 20 October, 2010
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD.No.3746 of 2009 and M.P.No.1 of 2009 N.Sengoda Gounder ... Petitioner Vs. 1.R.Manickam 2.Minor Selvi D/o.R.Manickam (represented by the 1st respondent in the capacity of next friend and Guardian). ... Respondents PRAYER: This Civil Revision Petition has been filed by the petitioner under Article 227 of Constitution of India against the order dated 02.07.2009 made in I.A.No.531 of 2007 in O.S.No.780 of 1994 on the file of the First Additional Sub-Judge, Erode. For Petitioner : Mr.R.Marudhachalamurthy For Respondents : Mr.N.Manokaran O R D E R
This revision petition has been filed by the petitioner against the dismissal order passed in I.A.No.531 of 2007 in O.S.No.780 of 1994 by the lower Court in an application to condone the delay of 1452 days in representation of the application filed for restoration of the suit in O.S.No.780 of 1994 which was dismissed for default.
2. Heard Mr.R.Marudhachalamurthy, the learned counsel for the petitioner and Mr.N.Manokaran, the learned counsel for the respondent.
3. The learned counsel for the petitioner would submit in his argument that an application was filed by the petitioner before the lower Court for restoring the suit, dismissed for default, within the time allowed by law and the said application was returned for certain defects and there was a delay in re-presenting the said application before the lower Court and the said delay was not willful, however, the lower Court had dismissed the application to condone the delay. He would further submit in his argument that the delay in re-presentation was caused since the petitioner was restricted to limited movements due to his old age and therefore, he could not contact his counsel to enquire about the application, after the return but the returned papers were mixed up with some other case papers at advocate's office and therefore, the delay had been caused. He would also submit that the default was not on the part of the petitioner but only with the counsel's office. He would further submit in his argument that the letter written by his counsel intimating the said facts did not reach the petitioner and therefore, the petitioner could not contact his counsel for a longer period and when he contacted his counsel recently, the things happened were made known to him and the traced returned papers were immediately re-presented and in the meantime, a delay of 1452 days have been caused and it is purely due to the mistake of his counsel and it was beyond the control of the petitioner. He would further submit in his argument that the plaintiff has got a very good case for condonation and he had filed the suit for specific performance and alternatively for the refund of the advance and such a claim of the petitioner should not be fore-closed, due to the mistake committed by his Advocate's Office. He would draw the attention of the Court to a judgment of this Court reported in 2000 (II) CTC 321 in between Lakshminarayanan v. Vaigundanamamani and another in support of his argument. He would also place his reliance on yet another judgment of this Court reported in 2000 (III) CTC 311 in between S.Saravanan (Minor) represented by mother and next friend A.Latha v. The Chief Judge Court of Small Causes(Motor Accidents Claims Tribunal) for the same proposition of law.
4. He would also submit in his argument that the delay caused in re-presenting the matter to be decided in between the petitioner and the Court. He would draw the attention of the Court to a judgment of this Court reported in 2004 (3) MLJ 607 in between Muthusamy (died) and others v. Ammasi alias Muthu Gounder and others for the said principle. He would further submit in his argument that even though the delay is condoned in re-presentation of an application by an order of the Court, it would be purely an administrative order. He has relied upon the judgment reported in 2002 (3) CTC 22 in between Bhuvaneswari v. R.Elumalai, for the said proposition of law. He would also bring it to the notice of this Court to a judgment of the 1st Bench of this Court reported in 1993 TLNJ 375 in between Y.Cusbar v. K.Subbarayan for the principle that the delay in re-presentation should have been construed liberally for the justice does not suffer in such cases and if there is undue delay, it could have been compensated by awarding cost. He would also bring it to the notice of this Court a judgment of the Hon'ble Apex Court reported in 1998(7) SCC 123 in between N.Balakrishnan v. M.Krishnamurthy for the principle that the liberal construction should have been advanced for rendering substantial justice, when there is no negligence, inaction or laches imputable upon the person, who is seeking for condonation. Therefore, he would request the Court that the delay of 1452 days should have been condoned by the lower Court in re-presenting the restoration petition, but it has failed to pass such an order. Therefore, the order passed by the lower Court may be interfered and set aside and thus the revision may be allowed.
5. The learned counsel for the respondent would submit in his argument that the lower Court has correctly dismissed the claim of the petitioner, since he has not explained the long delay of 1452 days in re-presentation and his case was rightly found as in-consistant with the reasons. He would also submit in his argument that the rules applicable to condonation of delay to file an application in time as governed by the Limitation Act, is also applicable to the condonation of delay in re-presentation. Therefore, he would submit that the petitioner should have been explained the delay to the satisfaction of the Court but he failed in his attempt to do so. He would cite a judgment of this Court reported in 2006(1) CTC 187 in between A. Muthusamy v. Muniammal and others for the said proposition of law. He would further submit in his argument that the re-presentation of delay caused in filing the 2nd appeal was dismissed by this Court in a judgment reported in 2002 (1) LW 397 in between Lalliammal v.Thulasi and 6 others. He would further submit in his argument that the lower Court had correctly appraised the facts and circumstances of the case and had come to a reasonable conclusion that the petitioner was not interested in prosecuting the suit and had come to a conclusion of dismissing the application for re-presentation and therefore, the said order passed by the lower Court need not be interfered and set aside. He would therefore, request the Court to dismiss the revision petition.
6. I have given my anxious thoughts to the arguments advanced on either side. Indisputably, the suit was filed by the petitioner against the respondent for specific performance of a sale agreement in respect of the suit property and alternatively, he has claimed for the refund of advance amount and while the case was pending, the suit was dismissed for default for want of prosecution on the side of the plaintiff and it was promptly responded by the plaintiff by filing an application to restore the suit. The said application was returned by the lower Court for some defects to be caused by the petitioner and the return was also taken.
7. The further case of the petitioner/plaintiff was that the returned papers were misplaced at counsel's office and the petitioner was also very old and was not doing well and therefore, he could not approach his counsel to know about the fate of the re-presentation of the returned papers. Per contra the respondent/defendant had disputed the allegations made by the petitioners as not true.
8. The delay of 1452 days sought for condonation is for the re-presentation of the said restoration application filed by the petitioner in time. According to the submissions of the learned counsel for the petitioner that the condonation of delay in re-presentation is only an administrative act and even no notice is necessary for the respondent, therefore, it is a matter in between the petitioner and the Court. The judgment cited by him reported in 2002 (3) CTC 22 in between Bhuvaneswari v. R.Elumalai would cite the relevant passage thus:-
"14. The time granted by the Court for the representation of the plaint, is only an administrative order and not a judicial order, and as such, if there is any delay in the representation of the plaint, an application to excuse the said delay could be filed under Section 151, CPC and it need not necessarily be the one under Section 148, CPC. In fact, Section 151 CPC is an omnibus provision available in the code to make suitable orders, which was filed under Section 151, CPC would have been allowed by the Trial Court. Even otherwise, the substance of the petition is more important than the form. Mere quoting of the provision wrongly, is not fatal to the petition itself. In that view of the matter also, the Trial Court could have allowed the said petition in excusing the delay in representation of the plaint."
9. The said view of this Court was also confirmed by yet another judgment of this Court reported in 2004 (3) MLJ 607 in between Muthusamy (died) and others v. Ammasi alias Muthu Gounder and others. The relevant passage would be thus:-
"There was a delay of 117 days in re-presenting the appeal papers, to condone which, I.A.No.170 of 1996 was filed and it was dismissed by the Sub-Court, Sankari. It is that order which is in challenge in this revision. In view of the judgments of this Court in the cases reported in 1978 T.N.L.J.332 and 1993 T.N.L.J.375, to the effect that, in matters like this, no notice need be sent to the party in opposition the approach of the learned Sub-Judge in refusing to condone the delay is erroneous. Consequently, the impugned order is set aside and the revision is allowed."
10. In the said judgment, it has been referred to a judgment of a 1st Bench of this Court reported in 1993 TLNJ 375 in between Y.Cusbar v. K.Subbarayan. It has been categorically held as follows:-
"This is not a case where-in the appeal has been filed out of time. This is a case in which the appeal is filed in time. Therefore, it cannot be said that the decree under appeal has assumed finality and the right has been accrued to the respondent. The delay in representation of the papers in the instant case, cannot be put to the account of the party. Several times, it happens due to the mistake on the part of the advocate's clerk or the advocates in presenting the appeal. Therefore, the Court has to take care to see that the justice does not suffer in such cases. If there is any undue delay in representation of the papers it can be compensated by awarding costs. Therefore, we are of the view that when the appeal has been filed in time, but there is inordinate delay in representation of the papers returned for rectification of the defects, by the appellate Court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs."
11. As regards the contentions of the respondent that the principles governing the condonation of delay in filing an application or appeal are also applicable to condonation of re-presenting the delay, the respondent has relied upon the judgment of this Court reported in 2006 (1) CTC 187 in between A. Muthusamy v. Muniammal and others. The relevant portion of the judgment are found in para 13 of the said judgment which is run as follows:-
"13. Though the above observations are made in the proceedings under Section 5 of the limitation Act, those principles are applicable while considering the delay in re-presentation of the papers. The delay of 477 days appears to be due to deliberate in action on the part of the Revision Petitioner."
12. In the said judgment it has been pointed out that the revision petitioner in that case was inactive for causing such 477 days delay in re-presenting the papers. As far as the principles laid down by the Hon'ble Apex Court reported in 1998(7) SCC 123 in between N.Balakrishnan v. M.Krishnamurthy is concerned, it would be for liberal construction in considering the condonation of delay when there is no inaction, laches, negligence on the part of the person claiming so. The relevant portion relied upon in the said judgment would run thus:-
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court to consider the cause shown for the delay afresh and it is open to such superior Court to condone to come to its own finding even untrammeled by the conclusion of the lower Court.
10.The reason for such a different stance is thus:
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.
11. 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 life span 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 life span 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 reipublicae up sit finis litium (it is for the general welfare that a period by put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in 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 vide Shakunthala Devi Jain v.Kuntal Kumari and State of West Bengal v.Administrator, Howrah Municipality."
13. Therefore, now the point before this Court is whether the lower Court was correct in finding that there is a deliberate inaction on the part of the petitioner in not re-presenting the said application in time or the reason assigned for not re-presenting the papers by the counsel engaged by him since it was mixed up with other papers is appreciable. The lower Court had confused with the names of counsel as deposed in the evidence of PW1, examined before the said Court, but no name was referred in the affidavit filed by the petitioner for making out a contradiction. The definite reason is that the inaction was only on the part of the counsel and not on the part of the petitioner. The petitioner being a litigant cannot be penalised for the act or omission of his counsel. When the application has been filed in time, and it is returned for some defects, it would not be a party to take the papers from the Court, for causing the defects and to represent the said papers in time before the Court. On taking return of papers, it is the duty of the Advocate to represent the same and when some negligence on the part of the Advocate has been imputed and no fault could be found with the litigant, the litigant's right should not be fore-closed merely by refusing for condonation of delay in re-presentation. As per the judgments of this Court referred supra, even notice is not necessary in adjudicating the claim for condonation of delay in re-presentation and it is also an administrative order.
14. It has been categorically held by the Hon'ble Apex Court that liberal construction should have been given in condoning the delay when there is no inaction, negligence or laches imputable on the part of the person claiming condonation. This is a rule laid down by the Hon'ble Apex Court, even if, condonation under Section 5 of Limitation Act for the delay caused in filing an appeal or application, in which the period of limitation have been prescribed. As far as this case is concerned, the application to restore the suit was filed within the time as contemplated under the Limitation Act. Thereafter, the delay has been caused in re-presentation of the said application returned for some defects. Therefore, it has become necessary to hold that it has to be considered only in between the Court and the petitioner, claiming condonation for the delay of re-presentation. Even if, we take that the delay is equated to a delay caused in condonation in preferring an appeal or application and thereby, where the period of limitation has been extended by such condonation, the petitioner has categorically shown to the Court that the negligence was only on the part of his counsel and nothing was imputable against him. The judgment of 1st bench of this Court reported in 1993 TLNJ 375 in between Y.Cusbar v. K.Subbarayan, it has been held that the delay in representation cannot be put to the account of the party. Therefore, the delay caused in re-presentation was only because of the act of his counsel and not by the inaction of the petitioner. The suit was filed for specific performance and alternatively for refund of advance. The only inaction which could be attributed is that he has not contacted his counsel then and there, for enquiring about his application for restoring the suit. But, the very negligence is on the part of the advocate's office and it shall not penalise the litigant. Therefore, the principles laid down by the 1st Bench of this Court reported in 1993 TLNJ 375 in between Y.Cusbar v. K.Subbarayan, is squarely applicable to the facts of this case.
15. Therefore, it has become necessary for this Court to interfere with the order of the lower Court in refusing the condonation of delay in re-presentation and set aside the same for rendering substantial justice to the parties, by condoning the delay in representation. The lower Court ought to have condoned the delay as it is not the fault of the petitioner. At the same time, the inordinate delay of 1452 days has to be condoned, after compensating the respondent by the petitioner suitably. Therefore, this Court has come to a conclusion of allowing the revision petition on condition to pay a sum of Rs.3,000/- (Rupees Three Thousand Only) towards cost for condoning the delay of 1452 days in re-presentation. Accordingly, the learned counsel for the petitioner has paid a sum of Rs.3,000/- (Rupees Three Thousand Only), across the Bar to the learned counsel for the respondent and he has also received the said payment on behalf of the respondent. Therefore, the order passed by the lower Court, is accordingly interfered and set aside and thus the revision is allowed and consequently, the application filed by the petitioner before the lower Court to condone the delay of 1452 days in re-presentation of the restoration application is allowed.
16. In the result, the revision petition is ordered accordingly. No order as to costs. Consequently, connected miscellaneous petition is closed.
20.10.2010 Index : Yes / No Internet :Yes / No ssn To The First Additional Sub-Judge, Erode.
V.PERIYA KARUPPIAH, J., ssn C.R.P.NPD.No.3746 of 2009 and M.P.No. 1 of 2009 20.10.2010