Mohamad Batcha v. R. Andi Ambalam & Others — 1999 DIGILAW 706 (MAD)

Judgment :- Mohamad Batcha is the appellant herein. 2. The appellant has filed this appeal against the order of the tribunal, dismissing the application for condonation of delay of 526 days in filing the petition to set aside the ex parte order, directing him to pay the compensation of Rs.34,560 to the claimants respondents 1 and 2 for the death of their son in the accident occurred due to the negligent driving of the driver of the tractor belonging to the appellant. .3. Mathim alias Ilamathi, aged about 15 years, was working under I.Mohamed Batcha, .the appellant herein, by assisting him in carrying water by the tractor belonging to him. 4. On 20.6.1986 at about 4 p.m., when the driver of the tractor and the deceased were engaged in the course of carrying water for irrigating ‘thopes’, the driver drove the tractor in a rash and negligent manner. In view of the rash driving, the deceased, who was sitting in the tractor, was thrown off and right front wheel of the tractor ran over the boy and caused severe multiple injuries on him. He was taken to the Government Rajaji Hospital. Madurai and at 10 p.m. he died. 5. The parents, Andi Ambalam and Irulayee, the respondents 1 and 2 herein, filed a petition, seeking for compensation of Rs.1,00,000 from the owner of the tractor, the appellant herein and the insurance company. Both the respondents therein, the owner of the Tractor and insurance company, filed their respective counters. 6. After enquiry, the tribunal exonerated the insurance company, but directed the owner of the Tractor, the appellant herein, to pay compensation of Rs.34,560 as against the total compensation of Rs.1,00,000 claimed by the parents of the deceased. 7. After nearly about one and half years, the appellant filed a petition before the tribunal to condone the delay of 526 days in filing the petition to set aside the ex parte award earlier passed. 8. After notice to the parties, the enquiry was conducted by the tribunal in the said petition. The appellant was examined in chief and cross. After nearly about one and half years, the appellant filed a petition before the tribunal to condone the delay of 526 days in filing the petition to set aside the ex parte award earlier passed. 8. After notice to the parties, the enquiry was conducted by the tribunal in the said petition. The appellant was examined in chief and cross. Thereupon, the tribunal heard the counsel for the parties and considered the materials and rejected the petition to condone the delay mainly on the ground that the delay was a huge one and not properly explained and that the same was filed, in order to drag on the proceedings and to escape from liability. 9. Having aggrieved over this order, the appellant, the owner of the tractor, which was involved in the accident, is before this Court through this appeal. .10. Mr.S.Subbiah, learned counsel appearing for the appellant, would mainly contend that the explanation given for the delay is an acceptable one and the tribunal ought to have taken a liberal approach in condoning the delay and that the request to condone the delay should not have been rejected merely on the reason that it was huge delay. 11. Mr.Jaganathan, learned counsel appearing for the claimants, respondents 1 and 2 herein, has supported the impugned order in his submission and requested this Court to confirm the same, as it contains valid reasons to reject the prayer to condone the delay. 12. The learned counsel for the appellant would elaborately argue on the strength of the decisions reported in N.Balakrishnan v. M.Krishnamurthy N.Balakrishnan v. M.Krishnamurthy N.Balakrishnan v. M.Krishnamurthy , (1998)7 S.C.C. 123 and Sonerao Sadashivrao Patil in order to substantiate the plea that the length of the time cannot be taken as a relevant factor in considering the condonation of delay, as the term “sufficient cause” should be interpreted and construed liberally and the discretion vested with the tribunal has got to be exercised to advance substantial justice. 13. On going through the decisions cited supra, it is clear that the principles relating to the matter of condonation of delay are well settled. The court is armed with power to condone the delay. The judicial power and the discretion are given to the court to advance substantial justice. 13. On going through the decisions cited supra, it is clear that the principles relating to the matter of condonation of delay are well settled. The court is armed with power to condone the delay. The judicial power and the discretion are given to the court to advance substantial justice. If the spirit behind the empowerment of discretionary power on the court is taken note of it would be clear that the court is required to adopt liberal approach in the matter of interpretation of the phrase “sufficient cause” as mentioned in Sec.5 of the Limitation Act. This concept is adequately elastic to enable the court to apply the law in a meaningful manner. 14. The requirement of explanation of every dayss delay does not mean that the courts shall take a pedantic approach, but they are required to adopt rational, common sense and pragmatic approach. The substantial justice alone is to be preferred against technical flaws. 15. The primary function of the court is to adjudicate the dispute between the contesting parties and to advance substantial justice. It is to be borne in mind that the rules of limitation are not made to harm the valuable rights of the parties. If a narrow and rigid approach is adopted in the matter of condonation of delay rather than taking a pragmatic approach, it would not advance the cause of justice, but on the other hand, it would result in the denial of justice. As pointed out by the Apex Court, “Extreme Law is extreme injury”. In dealing with the application for condonation of delay, the duration of delay is insignificant. The court has to take into account whether there is acceptable or pardonable explanation. 16. Sec.5 of the Limitation Act does not say that the discretion can be exercised only if the delay is within a certain limit. Length of delay is not a matter, but acceptability of the explanation alone is the criterion. In some cases, delay of few days may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a lengthy period can be condoned when the explanation is found satisfactory. 17. 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. 17. 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 idea is that every legal remedy must be kept alive for legislatively fixed period of time. It shall be remembered that in every case of delay, there may be some lapse on the part of the litigant concerned That alone is not enough to put down his plea and to shut the door against him. If the explanation does not show any mala fide or the same is not put forth as dilatory part of tactics, then the court should show utmost consideration to the applicant. When there are reasonable grounds to think that the delay was occasioned by the applicant deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the case of opposite party altogether. 18. In the light of the above principles laid down by this Court as well as by the Apex Court, let us now go into the impugned order, in order to decide whether it would suffer from any infirmity. While dealing with this question, it would be appropriate to refer few facts of the case. 19. The appellant, Mohamed Batcha, was the employer of the deceased boy aged about 15 years. On 20.6.1986, while the boy was in the course of his employment, he met with an accident, due to the negligent driving of the driver of the Tractor belonging to the appellant. He died on the same day at the hospital. 20. The parents of the deceased filed a claim petition in M.C.O.P.No.107 of 1987 dated 112. 1986 before the tribunal, Madurai, claiming compensation of Rs,1,00,000 from the owner of the vehicle and from the insurance company. The insurance company filed a counter dated 18. 1987 stating that the company was not liable to pay compensation. Earlier, the appellant also, through his counsel, filed a counter dated 25. 1987 stating that the driver of the Tractor was not negligent and that he was also not liable to pay compensation to the claimants. 21. The claim petition was originally pending before the District Court. Thereafter, it was transferred to IV Additional Sub Court (Motor Accidents Claims Tribunal). Earlier, the appellant also, through his counsel, filed a counter dated 25. 1987 stating that the driver of the Tractor was not negligent and that he was also not liable to pay compensation to the claimants. 21. The claim petition was originally pending before the District Court. Thereafter, it was transferred to IV Additional Sub Court (Motor Accidents Claims Tribunal). Finally, it was transferred to the I Additional District Judge, (Tribunal), Madurai on 23. 1989. The case came up for enquiry on 20.4.1989. Since the parties were not ready for enquiry, it was adjourned to 26. 1989. Since the Tribunals Judge was on leave on 26. 1989, it was again adjourned to 27. 1989. On that day, on behalf of claimants, two witnesses were examined and Exs.A-1 to A-7 were marked, and thereafter, it was adjourned to 8. 1989 for examination of witnesses on behalf of other side. Accordingly, on 8. 1989, three witnesses were examined on behalf of respondents and through them, three exhibits i.e., Exs.R-1 to R-3 were marked. Then, the matter was adjourned to 8. 1989 and thereafter to 8. 1989. On 8. 1989, arguments from the counsel for all the parties concerned were heard and the case was posted for judgment on 18. 1989. On that date, the judgment was pronounced exonerating the insurance company from its liability and directing the owner of the tractor (the appellant) to pay Rs.34,560 as compensation to the claimants. 22. It is quite relevant to note in this context, that the counsel, who appeared for the appellant herein, i.e., the second respondent in the claim petition, was on record and participated in all the proceedings throughout. The enquiry commenced and evidence was recorded on 27. 1989. On that date, the counsel for the appellant, who was present, did not inform the court that he had no instructions. On the other hand, witnesses examined on the side of claimants were cross-examined and on behalf of the owner of the Tractor and insurance company, on subsequent dates, witnesses were examined and documents were marked. Even during the course of arguments, after enquiry was over, the counsel who was on record and appearing for the appellant had participated. 23. Under these circumstances, there is nothing to indicate in the records and the judgment that the appellant remained ex parte and enquiry was conducted after passing an order, setting him ex parte. Even during the course of arguments, after enquiry was over, the counsel who was on record and appearing for the appellant had participated. 23. Under these circumstances, there is nothing to indicate in the records and the judgment that the appellant remained ex parte and enquiry was conducted after passing an order, setting him ex parte. Even in the final judgment, rendered on 18. 1989, it is clearly mentioned that the tribunal heard the arguments of the counsel appearing for the appellant also. Despite these materials to show that the order was passed only on merits as against the owner of the Tractor, the appellant filed an application on 21. 1991 before the tribunal, namely, I Additional District Judge, Madurai for condoning the delay of 526 days in filing the petition to set aside the alleged ex parte order. The strange feature is that this application had been filed along with an affidavit, through the very same counsel, who participated in the earlier proceedings throughout. 24. When the office of the tribunal returned the papers with an endorsement “The advocate is on record throughout. Orders have been passed on merits only. To state how this petition is maintainablee” This return was made on 21. 1991. It is quite interesting to note that the very same counsel put an endorsement saying “As the petitioner, (Mohamed Batcha), who is the second respondent in the main O.P. did not participate in the proceedings, the provisions of O.17, Rule 2 are attracted and whether his counsel is on record or not is immaterial. So, though the order is passed under O.17, Rule 3, it has to be treated as one passed under O.17, Rule 2, C.P.C. Hence, this petition is maintainable. Re-presented.” 25. When it is admitted in the endorsement that the order was passed under O.17, Rule 2, C.P.C., i.e., on merits, then the appellant, shall be advised to go to the Appellate Forum to challenge the order of award. But, without doing that, the counsel who participated throughout, requested the tribunal to treat the order as an ex parte order under O.17, Rule 2, C.P.C. and then take up the application to condone the delay. .26. But, without doing that, the counsel who participated throughout, requested the tribunal to treat the order as an ex parte order under O.17, Rule 2, C.P.C. and then take up the application to condone the delay. .26. However, the tribunal, thereafter entertained the application to condone the delay in I.A.No.23 of 1991, even without considering the question whether the point raised in the endorsement made by the counsel for the appellant regarding the maintainability is correct or not. Thereupon, the tribunal issued notice. Counter had been filed by the claimants opposing the application to condone the delay, both on merits and on maintainability. There was a separate enquiry conducted by the tribunal, by which, an opportunity was given to the appellant to come to the box and give explanation for the delay of 526 days. He was also cross-examined. The tribunal heard the counsel for the parties and finally passed the impugned order on 7. 1991, dismissing the application to condone the delay on the ground that the delay was not properly explained and the same was filed in order to drag on the proceedings. 27. As against the order dated 7. 1991, the appellant filed this appeal on 211. 1991. before this Court. The said appeal was returned by the office, putting some queries on 12. 1991. After compliance, the papers were again re-presented on 210. 1992 with a delay of 315 days in “re-presentation”. 28. To condone the delay in re-presentation, an application has been filed before this Court in C.M.P.No.14843 of 1992 and the same was ordered by this Court on 30.10.1992. Thereafter, the civil miscellaneous appeal got numbered on 11. 1992 and this Court admitted the same on 11. 1992. This Court also granted an interim stay. These details would clearly show that though the award was passed on 18. 1989, directing the owner of the tractor to pay Rs.34,560 as compensation for the death of the deceased, who was employed under him. The claimants, till date, are not able to get even a single pie from the appellant, despite the lapse of nine years. 129. As indicated earlier, the appellant, instead of challenging the award dated 18. 1989, directing the owner of the tractor to pay Rs.34,560 as compensation for the death of the deceased, who was employed under him. The claimants, till date, are not able to get even a single pie from the appellant, despite the lapse of nine years. 129. As indicated earlier, the appellant, instead of challenging the award dated 18. 1989, which was passed on merits, by filing an appeal before this Court, had approached the very same tribunal with an application to condone the delay of 526 days and after dismissal of the same, he has approached this Court by way of appeal, probably to gain some time and to avoid the payment of the award to the parents of the deceased who was employed under the appellant. .30. However, this Court does not propose to go into the question whether the application to condone the delay in filing the application to set aside the ex parte award, though it is not actually an ex parte award, is maintainable or not, particularly, when the tribunal has not gone into the said question. The dismissal order by the tribunal is only on the reasoning that the explanation is not acceptable to condone the delay and the application to condone the delay was not bona fide. In such a situation, we are only concerned with the question as to whether those reasonings, contained in the impugned order, are correct or not. 131. On going through the records and the order impugned, I am of the clear opinion that the application to condone the delay filed by the appellant is a deliberate attempt to avoid the payment by adopting the dilatory tactics. Further more, I am of the view that the explanation is not only unsatisfactory, but also the appellant had given a false evidence before the tribunal, in order to achieve his object of dragging on the matter to cause further delay in making the payment of award. 132. Further more, I am of the view that the explanation is not only unsatisfactory, but also the appellant had given a false evidence before the tribunal, in order to achieve his object of dragging on the matter to cause further delay in making the payment of award. 132. According to the appellant, in the affidavit to condone the delay before the tribunal, he attended the court on 20.4.1989 and on that date, he was informed by the office that the case would be transferred to the ‘Lok Adalat’ and that he would be getting a notice from that Forum and that he told the said fact to his Advocates clerk and returned home, and that only when he received a notice on 1. 1991 in Execution Petition No.8 of 1990, he went to his Advocates office and came to know that the main O.P. was transferred from IV Additional Sub Court to I Additional District Court and after trial, the award was passed on 18. 1989. This statement would show that he appeared before the IV Additional Sub Court 20.4.1989. But, a reading of the impugned order would make it clear that the case was transferred from IV Additional Sub-Court even on 23. 1989 and was posted before the I Additional Sessions Judge on 20.4.1989 and since parties were not ready, it was adjourned to 26. 1989. 133. But, contrary to this factual position, as contained in the impugned order, the appellant would state in the affidavit to condone the delay, that he appeared before the Sub-court on 20.4.1989 and thereafter, he came to know from his Advocate that the case was transferred to I Additional District Court and the enquiry was completed. 134. Yet another factor is quite relevant. In the affidavit to condone the delay, the appellant stated that he went to the Sub-Court on 20.4.1989 and the office of the court informed him that the matter would be transferred to “Lok Adalat”. But, in the deposition, he would state that he did not appear on 20.4.1989 and only the Advocate appeared on his behalf. The exact words are as follows: This statement in the deposition is quite contradictory to his statement made in the counter. 35. Under these circumstances, the explanation, giving varied versions in the counter and in the deposition, cannot at all be considered to be an acceptable or believable one. 36. The exact words are as follows: This statement in the deposition is quite contradictory to his statement made in the counter. 35. Under these circumstances, the explanation, giving varied versions in the counter and in the deposition, cannot at all be considered to be an acceptable or believable one. 36. The decisions cited by the counsel for appellant (cited supra), would specifically observe that if the explanation does not show bona fide and the same has been put forth as a part of the dilatory tactics and if it is found that there is a reasonable ground to think that the delay was occasioned by the applicant, deliberate to gain time, then this Court has no other alternative except to reject the explanation, as the tribunal has correctly done in this case. 37. Under these circumstances, the appeal, which is devoid of merits, is dismissed. Since the conduct of the appellant does not show bona fide throughout. It is appropriate to order costs throughout. Consequently, connected C.M.Ps. are closed.