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2002 DIGILAW 377 (MAD)

Karunakaran v. Santha

2002-04-25

K.GNANAPRAKASAM

body2002
Judgment : K. Gnanaprakasam, J. 1. The Revision petitioner is the first defendant in O.S.No.76 of 1999 on the file of Sub Court, Cheyyar who challenges the order dated 20.9.2001 passed in I.A.No.235 of 2001 by the Sub Court, Cheyyar. 2. In the suit filed by the respondent/plaintiff, the petitioner/first defendant was set export on 19.9.2000 and the first defendant came to know of the same only on 20.12.2000 and he has filed an application to set aside the ex parte decree dated 19.9.2000. As there was a delay of 93 days in filing the petition under order 9 Rule 13 of Civil Procedure to set aside the ex parte decree, the defendant also filed an application to condone the delay under Section 5 of the Limitation Act in I.A.No.49 of 2001. The said application was posted on 8.8.2001 and the defendant neither represented in person nor through his advocate. Therefore, the petition filed by the defendant was dismissed on 8.8.2001.The first defendant filed another application in I.A.NO.235 of 2001 to restore the order of dismissal dated 8.8.2001 and to restore the application inI.A.49 of 2001 and the same came to be dismissed by order dated 20.9.2001 and the said order is being impugned in this civil Revision Petiton. 3. Learned advocate for the petitioner/first defendant has submitted that the petitioner was affected by Jaundice and he could not move about and his advocate also misplaced the bundle on 8.8.2001 and only in those circumstances, neither the defendant nor his advocate appeared before the Court, which resulted in the dismissal of I.A.No.49 of 2001. In fact, the very same reasons were set forth in the affidavit filed by the petitioner in support of the petition filed to set aside the order of dismissal dated 8.8.2001. 4. Learned advocate for the respondent/plaintiff would submit that there was no truth in the averments stated in the affidavit filed by the defendant and only with a view to drag on the proceedings, the defendant remained ex parte and then filed an application to set aside the order of dismissal. The very same reasons were set out in the counter filed by the defendant before the trial Court also. 5. The very same reasons were set out in the counter filed by the defendant before the trial Court also. 5. The Trial Court after taking into consideration the averments made in the affidavit and also in the counter filed by the plaintiff, came to the conclusion that the reasons set out in the affidavit by the defendant are not sufficient for his absence and dismissed the petition. Aggrieved by the same, the first defendant has filed the above Civil Revision Petition. 6. When the matter was taken up for enquiry, on a question by this Court whether the petitioner/defendant has filed his written statement, it was stated no and there upon this Court directed the petitioner/defendant to file a written statement to find out whether the defendant has got any statable defence. On such a direction, the defendant also filed a written statement and a copy of the same has been filed in the additional typed set of papers by the petitoner/defendant. 7. The respondent/plaintiff filed the suit for specific performance of contract of sale agreement executed by the defendant in favour of the plaintiff. The plaintiff has stated that several payments were made pursuant to the agreement but the defendant in the written statement would deny the payments said to have been paid by the plaintiff and also disputes the time granted in the agreement. I am not, for a moment to give any opinion or finding about the correctness of the payments said to have been made by the plaintiff or the denial made by the defendants. It is not for this Court to consider all those aspects in this Civil Revision Petition. What I could see from the written statement is that the defendant has got a statable case which he has to establish before the trial Court. But, however, the defendant remained ex parte and the application filed by him to set aside the ex parte order of dismissal along with an application to condone the delay was dismissed and an application filed by the defendant to restore the said application was also dismissed. Only in the said circumstances, We have to consider as to whether the application filed by the petitioner/defendant has got to be allowed? 8. Learned advocate for the petitioner has submitted that the defendant has got valuable defence in the suit. Only in the said circumstances, We have to consider as to whether the application filed by the petitioner/defendant has got to be allowed? 8. Learned advocate for the petitioner has submitted that the defendant has got valuable defence in the suit. If he is not permitted to contest the suit, his right will be jeopardised and the same will be at stake. On the contrary, learned advocate for the respondent/plaintiff would contend that the defendant has wantonly evaded from prosecuting the petition. The reasons set forth in the affidavit to set aside the order of dismissal are also not sufficient and convincing. 9. I have carefully considered the rival submissions of both the learned advocate for the petitioner as well as the respondent. 10. Learned advocate for the petitioner/defendant has submitted that the Court may adopt a liberal approach to the petitions of this nature and the defendant may be given an opportunity to set forth his valuable defence. Learned advocate for the petitioenr relied upon the decision in the case of COLLECTOR, LAND ACQUISITON, ANANTNAG AND ANOTEHR (Appellants) VS MST. KATIJI AND OTHERS (Respondents) wherein the Apex Court has observed as follows: " Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grapsed that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 11. He also relied upon the judgment rendered in the case of C.K.LOKESH VS. P.E.PANDURANGA NAIDU reported in 1997-2-Law Weekly, 645. That is the case where there is a delay of 2015 days in filing an application to set aside the ex parte decree and an application under Section 5 of the Limitation Act was filed to condone the delay on the ground that the said application was filed within 30 days from the date of knowledge. It was also proved that there was no sufficient service and in this context, the Supreme Court held that the delay of 2015 days has got to be condoned while accepting the reasons of the petitioner. 12. Learned counsel further relied upon the judgment rendered in the case of G.P SRIVATSAVA (Appellant) VS R.K.RAIZADA AND OTHERS (Respondents) . In that case, the failure on the part of the petitioner to appear before the Court either in person or through his advocate, came up for consideration wherein the Apex Court observed as hereunder: "The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. Both the trial Court as also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of the appellant despite the fact that he had put a reasonable defence and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period. Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant/defendant is allowed opportunity to prove his case within a reasonable time." 13. On the contrary, the learned advocate for the respondent/plaintiff has submitted that the reasons stated in the petition are not sufficient and relied upon the decision rendered in the case of P.K. RAMACHANDRAN (Appellant) VS STATE OF KERALA AND ANOTEHR (Respodents) to sustain his argument. In that case, the petitioner has not given proper and valid reasons to condone the delay and the Court also did not record any satisfaction of reasonable or satisfactory explanation for inordinate delay and on those grounds, the Apex Court came to the conclusion that" We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days and dismissed the appeal." 14. In the case of N. BALAKRISHNAN (Appellant) VS. M. KRISHNAMURTHY (Respondent) the Supreme Court had an occasion to consider about the sufficient cause shown by the party to condone the delay. In para 13, it had observed as follows: "A Court knows that 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 Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumar, and State of West Bengal VS The Administrator, Howrah Municipality, The only restriction made by the Supreme Court is the explanation should not smack of mala fides or it is put forth as part of dilatory strategy, the Court must show the utmost consideration to the suitor. 15. Kuntal Kumar, and State of West Bengal VS The Administrator, Howrah Municipality, The only restriction made by the Supreme Court is the explanation should not smack of mala fides or it is put forth as part of dilatory strategy, the Court must show the utmost consideration to the suitor. 15. On an analysis of the submissions made by the parties and in consideration of decisions cited by both the advocate for petitioner as well as the respondent, it is clear that the uniform view taken by the Apex Court is, that the Court should not adopt unrealistic and technical approach while dealing with this kind of application as all parties would be put to unnecessary hardship and inconvenience. The ends of justice would be met only if the litigant is given an opportunity to prove his case within reasonable time. The Court should not refuse to condone the delay as it would result in foreclosing a suitor from putting forth his case. (i.e) Nipping the case of the parties in the bud itself and the same is not approved and appreciated by the Apex Court. This Court should not also more hyper technical in the petitions of this nature. Having this in mind, I feel that as the petitioner/defendant has raised certain statable defence in the written statement, which is subject to proof he must be given an opportunity to contest the matter on merits. I also feel that the petitioner/defendant can not be short circuited with the help of the ex parte order of dismissal of his application. At the same time, the petitioner /defendant also should be made to feel that he should be diligent in prosecuting the case. 16. In the said view of the matter, I am inclined to allow the Civil Revision Petition on payment of cost of Rs.5,000/- by the petitioner on or before 10.6.2002 failing which the order passed today shall stand cancelled automatically. That out of Rs.5,000/- a sum of Rs.2,500/- shall be paid to the respondent/plaintiff and the balance of Rs.2,500/-shall be paid by the petitioner/defendant to the Free Legal Aid Authority at Cheyyar. 17. In the result, the Civil Revision Petition is allowed. Consequently, C.M.P.No.16300 of 2001 is closed.