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2003 DIGILAW 1625 (MAD)

K. S. Selvaraj & Others v. Sree Komaleeswarar Devasthanam

2003-10-13

S.R.SINGHARAVELU

body2003
Judgment :- The revision arises against the impugned order dated 13.6.2002 on the file of the Third Additional Judge, City Civil Court, Chennai in allowing an application filed by the landlord to condone the delay of 1182 days in preferring the application to set aside the ex parte order passed against them in A.S.No.251 of 1993 preferred by the revision petitioners. 2. This is a case of total abuse of process of law by the petitioners/tenants in their attempt to grab the valuable properties belonging to Komaleeswarar temple atKomaleeswaranpettai, Chennai-2. The most unfortunate event is that even the Executive Officers, who are both morally and legally bound to safe-guard the interests of the idol, appear to have played havoc in joining hands with the tenants and seem to have colluded themselves to act against the interests of the idol. The slackness whether wanton or otherwise of the Executive Officers of the temple could be easily noted on going through the facts narrated here-under that even after deposit of the value of the building as directed by the Court, no tenable action was taken against the tenants in getting the building in favour of the temple. Suspicion of collusion is unavoidable. 3. An ejectment suit was filed seeking eviction from 2¬ grounds of the land wherein one Somasundara Mudaliar - the father of the revision petitioners has constructed a building. The eviction was resisted by saying that the tenant has invested enormous money in constructing the building thereon. On 19.1.1977, the then tenant Somasundara Mudalir filed an application under the City Tenants Protection Act in I.A.No.15296 of 1973, which was allowed permitting him to purchase the said 2¬ grounds at the rate of Rs.24,000/- per ground. As no amount was deposited, he could not fetch the remedy granted by the Court. Subsequently, the temple authorities filed I.A.No.13076 of 1978 under Section 4 of the said Act to permit them to purchase the building and that was dismissed for default on 29.1.1980. When the temple authorities filed I.A.No.13171 of 1980 in order to restore the earlier application on 11.2.1980, the said Somasundara Mudaliar expired at the end of the year 1980. 4. Therefore, an application to implead the legal heirs was preferred and the same was allowed on 18.11.1981. It is subsequent to that, the restoration application filed by the temple authorities in I.A.No.13171 of 1980 was allowed in September 1985. 4. Therefore, an application to implead the legal heirs was preferred and the same was allowed on 18.11.1981. It is subsequent to that, the restoration application filed by the temple authorities in I.A.No.13171 of 1980 was allowed in September 1985. Thus, the application in I.A.No.13076 of 1978 filed under Section 4 of the said Act was restored and the valuation of the building was fixed at Rs.1,60,377/-. On 12.4.1985, the said sum was deposited by the temple authorities and so the eviction was ordered on 14.3.1991 in I.A.NO.4902 of 1989. 5. Against this, the revision petitioners filed an appeal in A.S.No.251 of 1993 and since the temple authorities remained ex parte on 14.9.1993, the said appeal was allowed. 6. Subsequent to the ex parte order in A.S.No.251 of 1993 passed against the temple authorities, the latter preferred to file CMP.No.416 of 1997 to condone the delay of 1182 days in preferring an application under Order IX Rule 13 of the Civil Procedure Code. Unfortunately, by the lapse on the part of the temple authorities, the same was dismissed on 17.4.1997. Therefore, the temple authorities preferred an application under Order IX Rule 9 of the Civil Procedure Code to restore the same with a petition to condone the delay. The two applications were allowed in favour of the temple and thus, CMP.NO.416 of 1997 was restored. The subject matter in that application was to condone the delay of 1182 days in preferring an application under Order IX Rule 9 of the Civil Procedure Code in A.S.No.251 of 1993. For very many reasons, the same was allowed, against which, the petitioners preferred this revision petition. 7. From the above facts, it is very much clear that the tenants have resorted to dilatory tactics to protract the proceedings of ejectment against them from 1973 till date including that of successfully demoralizing the office of the executive authorities by making them to collude with them tacitly. The series of acts of leaving the applications at lurch effectively and making them to go against the idol in order to prolong and protract the proceedings of ejectment against the tenants only make me to observe as above. 8. When a person interested in the worship of the idol can be clothed with an adhoc power of representation to protect its interest, as observed in the case of Bishwanath Vs. 8. When a person interested in the worship of the idol can be clothed with an adhoc power of representation to protect its interest, as observed in the case of Bishwanath Vs. Radha Ballabhji ( AIR 1967 SC 1044 ), the idol is in the position of a minor and when the person representing it leaves it in lurch, any worshipper can have the power of representation to protect its interest. That only makes me to observe about the inactive and implied support extended all-along by the persons occupying the post of executive officer. It is based upon this theory, the idol shall be compared with a minor whose interest is to be protected by the Courts of law. 9. An observation was made in the case of Sri Madhavaperumal Devasthanam Vs. Tmt.Dhanalakshmi & Others (1996 I LW 231), which is as follows : "The Court can take notice of the fact that Executive Officers who are put in charge of the temple are changed periodically and in many a case, they do not get fully acquainted with the history or affairs of the temple. If there is some slackness on the part of the Executive Officer or even the trustees of the temple, it is the duty of the Court to see that the idol does not suffer thereby. Courts should be astute to protect the interests of an idol in any litigation." 10. It is, in this background, there was an interpretation of the word 'sufficient cause' under Section 5 of the Limitation Act made in the case of State of Haryana Vs. Chandra Mani & Ors. (1996 II LW 18), which is as follows: "Judiciary is not respected 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. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal??" It was again observed as follows : "The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal??" It was again observed as follows : "The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice oriented process???Equally, the State cannot put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained??" 11. Again, it is in this background, it was held in the case of M/s.Fast Cool Services Vs. Shanthakumari ( 2000 MLJ 506 ) that in most of the decisions, it has been held that Section 5 of the Limitation Act will have to be interpreted liberally in favour of the litigant and merely because the party came a little late, doors of the Court should not be closed unless the Court is of the view that the application itself is filed without bona fides to prolong the litigation. 12. In the case of Sankaralingam Vs.V.Rahuraman (2002 III CTC 13), the four principles governing the condonation (7) of delay under Section 5 of the Limitation Act and its aspects were formulated as below : "i. Whether petitioner has satisfactorily proved sufficient cause for delay? ii. Whether petitioner is guilty of negligence or inaction or want of bona fide? iii.Whether valuable right that has accrued to other party is likely to be defeated by condonation of delay? And iv. Whether petitioner has arguable points on facts and law?" 13. Considering the above four aspects, the delay has been proved in-as-much as the machinery to protect the interests of the idol was inactive and by having a pragmatic approach, as the idol being compared with a minor, the Courts have an inherent duty to protect its interest, especially when the persons appointed for protecting the interests act against the same. 14. 14. Regarding the second point of guilty of negligence on the part of the parties in this revision, after having parted away with a sum of Rs.1,60,377/- by way of deposit in Court as directed, the idol stands in a better footing than the tenants, who did not even make any endeavour in depositing the amount as directed in their petition under Section 9 of the City Tenants Protection Act for purchase of the ground even at the rate of Rs.24,000/- per ground in an important locality and in the midst of the metropolitan city. 15. By considering the fact of valuable right accrued to the other getting defeated, I do not find any point in favour of the tenants and the arguable points of facts and law are also abundantly in favour of the idol and not in favour of the tenants. 16. Viewed in four aspects prescribed in 2002 III CTC 13 (supra), I find that the revision has no merits. More particularly, these objections cannot be looked into in the revisional jurisdiction as provided in the case of Balakrishnan,N Vs. M.Krishnamurthy (1998 II CTC 533) and Jagdish Sawhney Vs. Harbans Singh ( AIR 2000 SC 3143 ) wherein it has been held that the length of delay is no matter, but acceptability of the explanation is the only criterian. It was further held that when the trial Court accepted the explanation offered for the delay, normally, the superior Court should not disturb such findings, much less in revisional jurisdiction, unless exercise of discretion was on wholly untenable grounds or arbitrary or perverse. A careful perusal of the order of the Court below does not make me to find any perversity or arbitrariness or unreasonableness in its order. 17. In view of what was observed above about the slackness of the officers of the Hindu Religious and Charitable Endowment Department and in order to protect the interests of the idol, which is like a minor, the Court below is directed to dispose of A.S.No.251 of 1993 on merits including the question of maintainability after ascertaining whether at all such appeal was taken against any decree of (9) eviction passed in the suit and that such disposal is to be made within three months from the date of receipt of the records. 18. Accordingly, the revision petition is dismissed. No costs. Consequently, the above CMP is also dismissed.