Madras High Court
S. Mohan, S/O. Late P. Subramani vs Cruz Mary And Anbu, S/O. Late P. ... on 2 August, 2005
Equivalent citations: 2006(1)CTC191
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Civil Revision Petition is directed against the order dated 10.09.2001 passed by IV Assistant Judge, City Civil Court, Chennai in I.A.No. 17056 of 2000 in O.S.No. 8894 of 1994, dismissing the Petition filed under Section 5 of the Limitation Act, declining to condone the delay of 547 days in filing the Application to restore the Suit in O.S.No. 8894 of 1994. The Plaintiff is the Revision Petitioner.
2. O.S.No. 8894 of 1994:- The Suit Property relates to Plot No. 51, Adisesha Nagar, Third Street, Main Road, Perambur, Madras - 600 012 measuring 1500 Sq.Ft., in R.S.No. 321. The Suit Property belonged to Perambur Harijan Welfare Co-operative House Site Society. The Society is a registered Society and its Members are Harijans. The object of the Society is to uplift the Harijan Members. The Suit Site was allotted to one Pappammal - Grandmother of the Plaintiff. The said Pappammal had put up a super structure in the Suit Property, which bears Door No. 4. The Suit Property consists of two portions, which is in the occupation of the First Defendant and another in the occupation of the Plaintiff and yet another portion in the occupation of D-2 and a thatched hut in the vacant site. Pappammal had a Daughter by name Panchalai. Panchalai was married to Subramani - Father of the Plaintiff. Even during the life time of Pappammal, the site allotted to her was transferred in the name of the Plaintiff's Father - Subramani with the consent of Pappammal. On account of transfer, a further sum of Rs. 106.25 became payable in addition to the sum of Rs. 525/-. The Plaintiff and his Brother - Anbu - Second Defendant and their Sister - Thangaruby are the Sons and Daughter of Subramani and Panchalai. Subramani died intestate on 04.01.1988. After his death, the Plaintiff paid a sum of Rs. 600/- due to the Society which he has paid from out of his earnings. The Society was ready to execute the Sale Deed in favour of the Plaintiff. According to the Plaintiff, he has all along been in the occupation of the Suit Property as the owner of the Suit Property. While being so, the First Defendant - Cruz Mary has filed a Petition in R.C.O.P.No. 1798 of 1990 in the Court of Small Causes, Chennai on the ground of Wilful Default against the Plaintiff. Exparte order of Eviction was ordered. In that proceedings, the Defendant had taken possession of the portions in the occupation of the Plaintiff and another portion in the occupation of the Tenant - Vanasundari. The Plaintiff learnt and understood that the Plaintiff's Brother Anbu - Second Defendant has joined hands with the First Defendant and with her consent, he is staying there. The portion in the occupation of the Defendants is shown as "B-Schedule" Property. Plaintiff's Father - Subramani never had right, title or interest in the property and he remained only an allottee without any Sale Deed in his favour. Further, the Plaintiff's Father - Subramani never paid the installments due to the Society and only the Plaintiff has paid the dues, due to the society. The possession of the Defendants is unauthorised and wrongful. Hence, the Plaintiff has filed the Suit for Declaration, declaring that "A-Schedule" Property belongs to the Plaintiff and for recovery of possession of the "B-Schedule" Property and other reliefs.
3. Resisting the Suit, the First Defendant has filed the Written Statement. The Suit was dismissed for default on 26.02.1999.
4. I.A.No. 17056 of 2000:- The Plaintiff has filed this Application on 25.09.2000. There was delay of 547 days in filing the Application to restore the Suit. Hence, the Application was filed under Section 5 of the Limitation Act to condone the delay. According to the Plaintiff, the counsel engaged by him was elevated and he had taken the bundle from his Advocate and thereafter he was not having any communication with his previous Counsel. It is averred that the bundles relating to other cases were handed over to his Junior Counsel. The Plaintiff had not contacted them and hence, the Juniors were under the impression that the Plaintiff was no longer connected with the previous counsel and hence, they failed to appear in O.S.No. 8894 of 1994 onbehalf of the Plaintiff. In the meantime, the Suit was called and dismissed for default on 26.02.1999. After the dismissal of the Suit, the First Respondent had approached the Co-operative Society requesting to transfer the patta in her name. On 22.09.2000, the Plaintiff had knowledge about the same from the officials of the Co-operative Society and immediately on verifying from the records, came to know about the dismissal of the Suit and thereafter filed the Application under Order IX Rule 9 C.P.C. The delay of 547 days in filing the Application is neither wilful nor wanton and hence, the Plaintiff seeks to condone the delay.
5. Resisting the Application, the First Defendant had filed the Counter Statement contending that the Application has been filed with inordinate delay. According to her, she has filed the Execution Proceedings in E.P.No. 616 of 1994, in which the Petitioner / Plaintiff had filed M.P.No. 199 of 1997 and the same was allowed on 31.03.1999, which is exactly after a month from the date of dismissal of the present case in O.S.No. 8894 of 1994. Though the Plaintiff had knowledge about the dismissal of the Suit, deliberately he had not taken any steps to restore the Suit.
6. Upon consideration of contentions of both parties, learned Assistant Judge, City Civil Court, Chennai has dismissed the Application finding that no valid reasons are given for non-appearance. Pointing out the Execution Petition in E.P.No. 616 of 1994, lower Court was of the view that despite the fact that the Petitioner / Plaintiff received the Notice in the Execution Proceedings, he had not taken appropriate steps to restore the Suit. It was held that had the Plaintiff been little more careful, he could have taken immediate steps to restore the Suit. Finding that no valid and convincing reasons are given for the delay, the Trial Court dismissed the Application, declining to condone the delay.
7. Aggrieved over the dismissal of the Application to condone the delay, the Revision Petitioner / Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has conteded that only because of the elevation of the Plaintiff's Counsel, he could not effectively conduct the Suit. Drawing the attention of the Court to the averments in the Plaint, learned counsel for the Revision Petitioner has submitted that the Plaintiff has raised serious dispute over the possession of the First Defendant and when the Suit has been filed for recovery of possession, opportunity is to be given to the Plaintiff to conduct his case or otherwise, serious prejudice would be caused to him.
8. Despite several notice, there is no representation onbehalf of the Respondents. The contentious points urged by the Respondents in the Court below had been taken into consideration for disposal of this Civil Revision Petition.
9. The Suit has been filed declaration of Plaintiff's Title in "A-Schedule" Property and for delivery of possession of "B-Schedule" Property. The following days are relevant to be noted:-
Suit dismissed for default :: 26.02.1999 M.P.No. 199 in 1997 in E.P.No. 616 of 1994 allowed on :: 31.03.1999 Petition filed to restore the Suit on :: 25.09.2000
10. According to the Plaintiff, he has engaged the Counsel and his previous counsel was elevated to the Bench and he had taken back the bundle from his Counsel. It is further averred that the Plaintiff had not handed over the bundle to the Junior Counsel. Though the Plaintiff had taken the bundle, the fact remains that the Plaintiff had not handed over the bundle either to Junior Counsel of his previous counsel or other Advocate. Had he been more vigilant, the Plaintiff would have taken steps to hand over the bundle. Because of such lack of care and vigilance, can he be attributed negligence and indifferent attitude declining to condone the delay is the short point arising for consideration in this Civil Revision Petition.
11. Of course, it may be said that if the Plaintiff had been more vigilant by handing over the bundle to other Advocate and he could have taken care and checking up the progress of the litigation. But, the omission on the part of the Plaintiff to adopt such care need not be used as a ground in declining to condone the delay. The length of delay is no matter; acceptability of the explanation is the criteria. It is well settled position that "Sufficient Cause" should be given, so as to advance substantial justice. When there is no inaction or no negligence or want of bonafides, the delay ought to be condoned. Holding that the discretion is to be exercised liberally and length of delay is no matter and sufficiency of the explanation is the relevant criteria, in the decision reported in N. Balakrishnan v. M. Krishnamurthy (1999 (1) L.W. 739) the Supreme Court has held as follows:-
"...8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But, during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
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 want of acceptable explanation whereas in certain other cases, delay of 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 refused to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court 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. 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 good cause.
11. Rules of limitation are not meant to destroy the right 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. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During 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. 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 be put to litigation). Rules of limitation are not meant to destroy the right 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 suit or 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 Shakuntala Devi Jain v. Kuntal Kumari and State of West Bengal v. The Administrator, Howrah Municipality ."
12. As discussed earlier, according to the Revision Petitioner / Plaintiff, the Suit Property had been allotted to his Grandmother - Pappammal and that his Father - Subramani did not pay the dues to the Society and only the Plaintiff has paid the installments amount due to the Society. The Plaintiff has raised serious disputes regarding Title of the Suit Property. It is seen that only an exparte order of Eviction has been passed in R.C.O.P.No. 1798 of 1990. Under such circumstances, an opportunity is to be given to the Plaintiff to put forth his case.
13. There is a delay of 547 days in filing the Application to restore the Suit in O.S.No. 8894 of 1994. As stated above, by an exparte order in R.C.O.P.No. 1798 of 1990, the Revision Petitioner has been evicted. By passage of time, valuable rights must have been accrued to the First Respondent. While giving opportunity to the Revision Petitioner, the right accrued to the First Respondent is also to be kept in view. In that view of the matter, a balance has to be struck. Interest of justice would be met by allowing the Application on condition that the Revision Petitioner shall pay a sum of Rs. 2500/- (Rupees Two Thousand and Five Hundred Only) to the First Respondent.
14. For the foregoing reasons, the order dated 10.09.2001 passed by the Fourth Assistant Judge, City Civil Court, Madras in I.A.No. 17056 of 2000 in O.S.No. 8894 of 1994 is set aside and this Civil Revision Petition is allowed. The delay of 547 days in filing the Application to restore the Suit in O.S.No. 8894 of 1994 would be condoned on payment of Cost of Rs. 2,500/-(Rupees Two Thousand and Five Hundred Only) to the First Respondent in the lower Court within a period of four weeks from the date of receipt of a copy of this order. On payment of such costs and allowing the Application in I.A.No. 17056 of 2000, learned Fourth Assistant Judge, City Civil Court, Chennai is directed to admit the Application under Order IX Rule 9 C.P.C to restore the Suit in O.S.No. 8894 of 1994 on file and dispose of the Application in accordance with law.