Madras High Court
Mailammal vs Krishnaveni on 13 April, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.04.2015
CORAM:
THE HONOURABLE MS.JUSTICE K.B.K.VASUKI
C.R.P.(NPD).No.4216 of 2009
&
M.P.No.1 of 2009
1.Mailammal
2.Manimaran ... Petitioners
Vs.
1.Krishnaveni
2.Janarthanan ... Respondents
PRAYER: This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure against the fair and decretal order dated 19.08.2009 passed in I.A.No.1197 of 2008 in O.S.No.761 of 2004 on the file of the Additional District Munsif Court, Villupuram.
For Petitioners : Mr.R.Meenal
For Respondents : Mr.N.Suresh
O R D E R
The present petition is filed by the petitioners, who are defendants in the suit in O.S.No.761 of 2004 on the file of Additional District Munsif Court, Villupuram, filed by the respondents herein for declaring the first plaintiff as the legally wedded wife of one Srinivasan and the second plaintiff as the legitimate son through the first plaintiff and that they are entitled to get pension and monetary benefits due to deceased Srinivasan.
2.The petitioners herein as defendants therein participated in the suit proceedings. During trial, PW1 was examined and while PW2 was in the witness box, the defendants failed to appear before the trial Court for cross examining PW2. As a result, PW2 evidence was closed. After that the defendants were set exparte and an exparte judgment and decree was passed by the trial Court. The petitioners filed an application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the exparte decree stating that the first petitioner being illiterate and the second petitioner used to be out of station for job purpose, both of them were unable to follow the Court proceedings and they came to know about the same only on 20.09.2008 through the Village Administrative Officer and thereafter, the Interlocutory Application in I.A.No.1197 of 2008 came to be filed by the petitioners to condone the delay of 417 days in filing the application to set aside the exparte decree. The said application was seriously opposed by the respondents/plaintiffs. The trial Court without going into the reasons for the delay, dismissed the application on the ground that the judgment and decree was passed by the trial Court under Order 17 Rule 13 and not an ex parte decree and that the petition filed under Order 9 Rule 13 of CPC is not maintainable. Aggrieved against the same, the petitioners/defendants have come forward with this Civil Revision Petition before this Court.
3.Heard the rival submissions made on both sides.
4.As far as the ground on which, the petition was dismissed by the trial Court is concerned, the same is not legally sustainable. The petitioners/defendants failed to appear and cross examine PW2 and failed to appear for letting in evidence on their side and they having been set ex parte, the judgment and decree passed by the trial Court cannot be treated as the one passed under Order 17 Rule 3 of CPC, but ought to be treated as an ex parte decree.
5.Regarding the delay, the reasons set out in the affidavit filed in support of the petition is that the second petitioner used to be out of station for job purpose and he was unable to follow the court proceedings and his mother/first petitioner being illiterate was not aware of the Court proceedings.
6.The learned counsel for the petitioners/defendants contended that considering the nature of the relief sought for in the suit for determining the marital status of either the first plaintiff or the first defendant as the legally wedded wife of deceased Srinivasan, the petitioners/defendants may be given one more opportunity to contest the case.
7.In my considered view, the trial Court ought to have considered the relief sought for in the Interlocutory Application in the light of the averments raised in the affidavit and failure to do so resulted in miscarriage of justice. It is true that the Hon'ble Apex Court in the decision rendered in ESHA BHATTACHARJEE V. MANAGING COMMITTEE OF RAGHUNATHPUR, NAFAR ACADEMY AND OTHERS reported in 2013 (5) CTC 547 has laid down the principle governing the application for condonation of delay which reads as follows:
15. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an Application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The Concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of Prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of Law of Limitation.
(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a) An Application for Condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring th enotin that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An Application for Condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-serious manner and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.
8.This Court by applying the principles laid down by the Hon'ble Apex Court deems it a fit to accept the explanation offered by the petitioners as sufficient and reasonable for the delay occurred. As such, this Court is inclined to condone the delay thereby the impugned order stands set aside.
9.At this juncture, the learned counsel for the plaintiffs/respondents would submit that as per the exparte decree, the plaintiffs/respondents are paid monetary benefits due to the deceased and in the event of the exparte decree being set aside and the suit being restored to file, any order regarding monetary benefits already paid to the respondents may be passed after full fledged trial in the suit. In view of the above stated submission by the learned counsel for the plaintiffs/respondents, the trial Court is directed to pass necessary orders regarding the monetary benefits already paid subject to the outcome of the suit.
10.In the result, the Civil Revision Petition is allowed by setting aside the order passed by the lower Court in I.A.No.1197 of 2008 and Interlocutory Application stands ordered. The trial Court is directed to take up on file the petition to set aside the ex parte decree, if it is otherwise in order and dispose of the same on merits by having liberal approach and in the event of the petition filed under Order 9 Rule 13 of CPC, being allowed and ex parte judgment and decree being set aside, the suit may be taken up on file and the trial Court is directed to decide the same on merits, after giving opportunity to both the parties and as expeditiously as possible. No costs. Consequently, connected miscellaneous petition is closed.
13.04.2015 Index : Yes/No Internet : Yes/No kal To The Additional District Munsif Court, Villupuram. K.B.K.VASUKI, J kal C.R.P.(NPD).No.4216 of 2009 & M.P.No.1 of 2009 13.04.2015