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2001 DIGILAW 1161 (MAD)

C. Selvaraj v. M. Subramani

2001-10-01

S.JAGADEESAN

body2001
ORDER: The petitioner has filed this revision petition against the order of the learned District Munsif, Ambur, dismissing the petition filed by him in I.A. No.502 of 1998 to condone the delay of 283 days in filing the petition for setting aside the ex parte decree passed on 12.11.1997. 2. The respondent herein filed the said suit for declaration of his title in respect of the suit property and for recovery possession of 75 cents. The suit was originally filed at the District Munsif Court, Tirupattur and numbered as O.S. No.95 of 1995. Due to the change in the territorial jurisdiction, the said suit was transferred to Ambur District Munsif Court and numbered as O.S. No.685 of 1996. As the petitioner was not represented an ex parte decree was passed on 12.11.1997. The petitioner filed I.A. No.502 of 1998 to condone the delay of 283 days in filing the petition for setting aside the ex parte decree. In the affidavit filed in support of the said I.A. the petitioner has stated that he did not know about the transfer of the suit to the Ambur Court and he did not know the date of hearing of the suit. He was under the impression that his counsel would inform the progress of the suit. Since he had not received any letter from the counsel, he did not know anything about the progress of the suit. He received the notice in R.E.P. No.79 of 1998. After the receipt of the notice he met his counsel at Tirupattur who informed the petitioner that he already wrote a letter to the petitioner. However, the petitioner did not receive the letter. Thereafter the petitioner engaged a counsel at Ambur and came to know through him that he was set ex parte on 1.10.1997 for non-filing of the written statement and an ex parte decree was passed on 12.11.1997. The petition for setting aside the ex parte decree ought to have been filed on or before 12.12.1997, but the same was filed on 21.9.1998. Hence, there is a delay of 283 days which is neither wanton nor wiflful, due to the communication gap between the counsel and the petitioner. 3. The respondent herein filed the counter to the said I.A. stating that the petitioner was aware about the transfer of the suit to Ambur Court. Hence, there is a delay of 283 days which is neither wanton nor wiflful, due to the communication gap between the counsel and the petitioner. 3. The respondent herein filed the counter to the said I.A. stating that the petitioner was aware about the transfer of the suit to Ambur Court. The counsel who appeared at Tirupattur Court for the petitioner appeared before the Ambur Court also. However, the petitioner did not file the written statement and wanted to prolong the matter unduly and hence the Court passed an ex parte decree. There is absolutely no reason for condoning the inordinate delay of 283 days. 4. The lower Court, after considering the averments made in the affidavit as well as the counter, dismissed the petition by order dated 10.11.1999. As against the same, the present revision has been filed. 5. A perusal of the order of the Court below reveals that after the suit was transferred to the Ambur Court, the suit was posted for the first hearing on 15.3.1996 and thereafter the matter was adjourned on number of occasions for filing the written statement by the petitioner. As no written statement was filed for nearly 1 1/2 years after the transfer of the suit to Ambur Court, the petitioner was set ex parte on 1.10.1997 and the ex parte decree was passed on 12.11.1997. 6. When the matter was heard, the learned counsel for the petitioner contended that the counsel who appeared for the petitioner at the Munsif Court, Tirupattur did not appear in the Munsif Court, Ambur. Further the petitioner was not informed about the transfer of the suit and as such the petitioner cannot be blamed for his absence. Hence, the delay is a bona fide one and the same ought to have been condoned by the lower Court. 7. When such argument was advanced by the learned counsel for the petitioner, I directed him to get an affidavit from the counsel who appeared for the petitioner at Tirupattur Court, as I find from the proceedings of the lower Court that the counsel engaged by the petitioner at Tirupattur Court appeared at Ambur Court also. Even though twice time was taken, the learned counsel for the petitioner ultimately informed the Court that the said counsel engaged by the petitioner at Tirupattur Court is not willing to file an affidavit that he did not appear at Ambur Court. Even though twice time was taken, the learned counsel for the petitioner ultimately informed the Court that the said counsel engaged by the petitioner at Tirupattur Court is not willing to file an affidavit that he did not appear at Ambur Court. Hence, the statement made by the learned District Munsif that the petitioner was represented by the counsel at Ambur and inspite of several adjournments the petitioner did not take any steps to file the written statement, has to be accepted. 8. When the petitioner did not show any interest in filing the written statement at an early date and prolong the matter for nearly more than two years without filing the written statement, the conduct has to be taken into consideration. Though I do not find any error of jurisdiction in the order of the lower Court, however, keeping in mind the ruling of the Apex Court in the case of Balakrishnan v. Krishnamurthy, (1999)1 L.W. 739, I am of the view that some leniency may be shown to the petitioner by imposing the cost. In the above case, the Apex Court has held as follows: “A Court knows the refusal to condone delay would result in foreclosing a suitor 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 Sec.5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide: Shakuntala Devi Jain v. Kuntal Kumari, A.I.R. 1969 S.C. 575 and State of West Bengal v. The Administration, Howrah Municipality, A.I.R. 1972 S.C. 749: (1972)2 S.C.J. 42. ”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 putforth 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 delay, the Court should not forget the opposite party altogether. 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 delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to latches on the part of the applicant, the Court shall compensate the opposite party for his loss." On the above principles, I am of the view that the petitioner need not be non-suited on the ground of the inordinate delay alone. To show his bona fide, a chance can be given by imposing the cost; especially when the reason for the delay as pleaded is that of non-communication with the advocate. 9. I set aside the order of the lower Court and allow the civil revision petition on condition that the petitioner shall pay a cost of Rs.3,000 to the respondent directly and file the receipt before the lower Court on or before 17.10.2001. In case if the petitioner fails to do so, the civil revision petition shall stand dismissed.