Madras High Court
T.Marimuthu vs M.Dhanalakshmi on 7 November, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/11/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD)(MD)No.96 of 2012 and M.P(MD)No.1 of 2012 T.Marimuthu ... Petitioner/Petitioner/ Defendant Vs. 1.M.Dhanalakshmi 2.Minor M.Selvi ... Respondents/Respondents/ Plaintiffs Prayer Petition filed under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.567 of 2009 in O.S.No.369 of 2000 by the learned District Munsif, Palani, dated 19.07.2010. !For Petitioner ... Mr.D.Venkatesh ^For Respondents ... Mr.M.P.Senthil * * * * * :ORDER
This Civil Revision Petition has been filed to get set aside the order passed in I.A.No.567 of 2009 in O.S.No.369 of 2000 by the learned District Munsif, Palani, dated 19.07.2010.
2. The nitty-gritty, the gist and kernel of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
(i) The respondents/plaintiffs filed the suit in O.S.No.369 of 2000 on the file of the learned District Munsif, Palani, seeking maintenance from the revision petitioner/defendant, who happened to be the husband of the first respondent and the father of the second respondent. The revision petitioner/defendant remained exparte even without filing the written statement, whereupon an exparte decree was passed, awarding a sum of Rs.2,000/- (Rupees Two Thousand only) payable by the revision petitioner/defendant in favour of the respondents/plaintiffs.
(ii) It so happened that after a lapse of 2741 days, the revision petitioner/defendant in the suit, filed I.A.No.567 of 2009, to get the delay condoned in filing the application to get set aside the exparte decree. After hearing both sides, the lower Court dismissed the application, which resulted in filing of this Civil Revision Petition under Article 227 of the Constitution of India on various grounds.
3. The learned Counsel for the revision petitioner/defendant would echo the cri de coeur of the revision petitioner to the effect that his client was deprived of the opportunity to contest the matter in view of the dismissal of the said interlocutory application. According to the learned Counsel for the revision petitioner/defendant, his client was in Kerala for eking out his livelihood and in the meanwhile, the suit went as against him in the litigative process which he wants to get remedied, but the lower Court did not give such opportunity.
4. Per contra, the learned Counsel for the respondents/plaintiffs would express and expatiate the heart burns of his clients to the effect that despite passing such exparte decree, not even a single paise was paid by the revision petitioner/defendant towards maintenance and they are in penury; in such a case, it will be highly attrocious on the part of the revision petitioner to press for getting the exparte decree set aside by filing an application and that too, with such huge delay. Accordingly, he would pray for the dismissal of this Civil Revision Petition.
5. The point for consideration is as to whether there is any perversity or illegality in the order of the lower Court in dismissing the application for getting the delay of 2741 days condoned in filing the application to get the exparte decree set aside?
The Point:
6. I recollect the following legal maxims:
(i) "Vigilantibus et non dormientibus jura subveniunt." [The laws aid the vigilant, not those who sleep.]
(ii) "Interest reipublicae ut sit finis litium." [It is in the interest of the State that there be a limit to litigation.]
7. The aforesaid legal maxims are to the effect that the litigant in the litigative process, should be keen in getting it processed and he cannot sleep over the matter. So far the revision petitioner is concerned, he slept over the matter and allowed to grass to grow under his feet and that too, in the maintenance case.
8. When this Court raised a query as to whether the relationship between the parties is not in dispute, both sides in union would submit that the relationship is an admitted one. The maintenance awarded in favour of the respondents, as against the revision petitioner was meagre as only Rs.2,000/- (Rupees Two Thousand only) was awarded in favour of the respondents herein payable by the petitioner. The reasons found set out in the affidavit accompanying the application filed by the revision petitioner was that he was in Kerala for eking out his livelihood and he would venture to say that he was there for 2741 days virtually leaving his wife and child to reel under impecunious and cash strapped situation and that the delay should be condoned for enabling him to contest the matter. The lower Court appropriately and appositely keeping in mind the current proposition of law, dismissed the said application, warranting no interference at the hands of this Court. There is no reason much less valid reason found set out in the application for condoning such a huge delay.
9. In this connection, I would like to refer to the decision of the Honourable Supreme Court in Balwant Singh v. Jagdish Singh reported in (2010) 8 Supreme Court Cases 685. Certain excerpts from it, would run thus:
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
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29. In Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361, this Court took the view: (AIR pp. 363-65, paras 7 & 12) "7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR (1890) 13 Mad 269:
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12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done;
the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;"
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35. The expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)"
10. As such, keeping in mind the aforesaid precedent, if the matter is viewed, it is pellucidly and axiomatically clear that in matter of this nature, such huge delay should not be condoned. Wherefore, I could see no reason to interfere with the order of the lower Court. The point is answered accordingly.
11. In the result, the Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
rsb To:
The Court of District Munsif, Palani.