Madras High Court
P. Chandrasekaran vs A.S. Chinnamuthu on 4 September, 2002
ORDER K. Gnanaprakasam, J.
1. This Civil Revision Petition is directed against the fair and decretal order dated 15.10.2001 passed by the Additional Subordinate Judge, Salem, in I.A.No.484/2001 in O.S.No.524/1993.
2. The respondent/plaintiff filed a suit for partition and the revision petitioner is the first defendant in the suit. The first defendant was set exparte on 31.7.1997. Hence, he filed an application to set aside the exparte decree but there is a delay in filing the said petition and application under Section 5 of the Limitation Act was filed to condone the delay and the same was dismissed by the Court below by order dated 15.10.2001 and the same is challenged in this Civil Revision Petition.
3. The petitioner has filed an affidavit in support of the petition to condone the delay wherein he has stated that he had engaged an advocate to defend his case. He has been under the bonafide impression that he is defending the case deligently but the said advocate has shifted his practice to Madras and he was not defending the case of the defendant. Only in August 1999, the first defendant came to know that he was set exparte on 31.7.1997 itself and preliminary decree was passed. An application to pass a final decree was also filed; that thereafter he has engaged another advocate who expressed his inability to file an application to set aside the preliminary decree on the ground that back case papers were not available and therefore he has filed an application in the final decree proceedings to set aside the exparte order passed in the final decree and the said application was dismissed on 18.8.2000; that thereafter the first defendant filed application to set aside the exparte decree passed on 31.7.1997 and there was a delay of 1397 days and application under section 5 of the Limitation Act was filed to condone the delay.
4. The respondent/plaintiff resisted the said application on the ground that the petitioner/first defendant had knowledge about the passing of the preliminary decree at least in 1999 and instead of filing an application to set aside the exparte preliminary decree, he has filed an application to set aside the exparte in the final decree and the same was dismissed; that thereafter only, the defendant filed an application to set aside the exparte preliminary decree and there is absolutely no bonafide on the part of the defendant in not having filed the petition in time. The plaintiff has also stated that only with a view to protract the proceedings, the defendant has filed the petitioner at the belated stage without assigning good and valid reasons.
5. The Trial Court after taking into consideration all the aspects of the case took a view that the defendant remained exparte not only at the time of passing of preliminary decree but also at the time of passing of the final decree and he has not taken any deligent steps to set aside the said decrees. As the reasons offered by the defendant were not sufficient, the trial court dismissed the petition. Aggrieved by the same, the defendant has preferred this Civil Revision Petition.
6. Learned counsel for the petitioner/defendant would contend that he had entrusted the entire matter in the hands of the advocates and the first advocate had shifted his practice to Madras and did not defend the suit deligently and therefore he was set exparte and the preliminary decree was passed on 31.7.1997 but he came to know of the same only in August 1999. The advocate engaged subsequently has also not advised the defendant properly and he has filed an application to set aside the exparte order passed in final decree without filing an application to set aside the exparte decree passed in the preliminary decree. Hence, the application in I.A.No.553/99 came to be dismissed on 18.8.2000; that thereafter only the defendant was advised to file an application to set aside the exparte preliminary decree passed on 31.7.1997 and accordingly an application was filed. In such circumstances, there was a delay in filing the petition.
7. It is argued on behalf of the petitioner that the petitioner was not properly advised of what steps should be taken in the matter entrusted to his advocate and only in the said circumstances, the petitioner was not able to file an application to set aside the exparte preliminary decree and instead an application was filed to set aside the exparte final decree.
8. I see some force in the said submission. When a litigant approaches an advocate it is the duty of the advocate to guide him properly and also advise him of the proper steps to be taken. It appears that when the matter was entrusted to the first advocate he had shifted his practice to Madras without even informing the petitioner and only in the said circumstances the petitioner was set exparte. The advocate engaged subsequently has also not taken proper steps and instead of filing an application to set aside the exparte preliminary decree he has filed an application to set aside the exparte final decree and the same came to be dismissed. Of course, it is seen that the petitioner remained exparte on both the occasions. But however, when the petitioner filed an application to set aside the exparte decree, he has also filed the written statement. In the written statement the defendant has raised certain defence which requires consideration.
9. Therefore, in the interest of justice, the petitioner/defendant must be given an opportunity to defend the case and if the said opportunity is denied to the petitioner his right to the property would be at stake and his interest would be jeopardised and he would also be put to irreparable injury. With a view to meet the ends of justice, I feel that the petitioner/defendant must be given an opportunity to defend the case.
10. In this connection, it would be useful to refer the case N.Balakrishnan -Vs- M.Krishnamurthy wherein the Supreme Court has observed " 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 cases, delay of a very long range can be condoned as the explanation thereof is satisfactory". It is also further observed " 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 only a good cause". It is further observed that " 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. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
11. There is no material to come to the conclusion that the petitioner is wantonly delaying the matter due to some malafide intention and in the absence of the same, the principles laid down by the Supreme Court is squarely applicable to the case on hand. In this case, the petitioner mainly depend upon the advocates who according to him have not properly advised which resulted in the delay in filing the petition. The explanation offered by the petitioner appears to be reasonable and sufficient and for the fault of others, the litigant should not be penalised and his remedy cannot be crippled. As the court is always interested in advancing fair and substantial justice, the laches if any, on the part of the litigant has got to be condoned. However, the Court should also take into consideration the plight of the opposite party. In the said view of the matter, it is fit and proper case to allow the Revision on payment of cost.
12. In the result, the Civil Revision Petition is allowed and the petitioner is directed to pay a sum of Rs.2,500/- towards costs before the lower Court within two weeks from the date of receipt of this order. As the suit is of the year 1993, the trial Court is directed to dispose of the suit as expeditiously as possible. Consequently, C.M.P.No.5150/2002 is closed.