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2005 DIGILAW 1388 (MAD)

K. C. Mohan v. C. Ganapathi

2005-08-20

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 26.03.2004 passed by the learned Subordinate Judge, Karur in I.A.No.61 of 2004 in O.S.No.187 of 1999,as stated therein.) This Civil Revision Petition arises out of the order dated 26.03.2004 made in I.A.No.61 of 2004 in O.S.No.187 of 1999 by the learned Subordinate Judge, Karur, dismissing the Petition filed under Section 5 of the Limitation Act, declining to condone the delay of 1642 days. The Defendant is the Revision Petitioner. 2. Facts necessitated for the disposal of this Civil Revision Petition could briefly be stated thus: - O.S.No.187 of 1999:-} (Sub-Court, Karur) } The Revision Petitioner / Defendant borrowed a sum of Rs.4,00,000/- from the Plaintiff - Ganapathi and executed a Promissory Note. For Recovery of Rs.4,47,066/-, the Plaintiff has filed this Suit. On 09.07.1999, the Petitioner / Defendant set exparte. On 25.11.1999, exparte Decree was passed. 3. E.P.No.155 of 2000:- This Execution Petition was filed for executing the Decree in O.S.No.187 of 1999 for sale of the Petition mentioned properties. First Item of Property – 1.70 Acres was sold for Rs.7,00,500/-. One Rajendran was the Auction Purchaser and has deposited 1/4th amount of Rs.1,75,125/-. On 24.11.2003, balance amount of Rs.5,25,375/- was also deposited. 4. E.A.No.329 of 2003 was filed by the Revision Petitioner / Defendant to set aside the Sale (under Order XXI Rule 89 C.P.C). The Defendant has deposited Rs.6,67,620/-. On 05.02.2004, E.A.No.329 of 2003 was allowed and the sale was set aside. On the same day, the Auction Purchaser had filed E.A.No.32 of 2004 to withdraw the amount and the same was allowed on 01.03.2004. Cheque was also issued to the Auction Purchaser. 5. I.A.No.61 of 2004:- After depositing the amount into the Court and after filing E.A.No.329 of 2003, the Defendant has filed this Application under Section 5 of the Limitation Act to condone the delay of 1642 days in filing the Petition to set aside the exparte Decree. The Petition was filed stating that the Defendant was suffering from illness and that he could not entrust the Vakalat and appear before the Court on 09.07.1999 and on the subsequent dates. The Application was strongly resisted by the Respondent / Plaintiff stating about the filing of the Application in E.A.No.329 of 2003 and the deposit of the Decree amount by the Defendant. 6. The Application was strongly resisted by the Respondent / Plaintiff stating about the filing of the Application in E.A.No.329 of 2003 and the deposit of the Decree amount by the Defendant. 6. Upon consideration of the averments in the Application and in the Counter Statement, learned Subordinate Judge, Karur has dismissed the Application finding that the Application was filed only to delay the Execution Proceedings. The lower Court was of the view that the Petitioner's illness has not been proved through valid medical certificate. Pointing out that the inordinate delay of 1642 days in filing the Application has not been properly explained, the lower Court dismissed the Application. 7. Assailing the Impugned Order, the Defendant has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner / Defendant, placing reliance upon number of decisions has contended that while considering the Petition under Section 5 of the Limitation Act, the Courts are to adopt a liberal approach. It is further submitted that when there is bonafide mistake in not appearing in the Court, the Court has adopt a liberal approach in condoning the delay. Pointing out that the amount involved is huge, learned counsel for the Revision Petitioner has submitted that an opportunity is to be afforded to the Defendant to put forth his defence and contest the Suit. The Impugned Order is assailed on the ground that the lower Court erred in adopting a rigid approach and the Impugned Order is to be set aside. 8. Pointing out that the delay has not been properly explained, learned counsel for the Respondent / Plaintiff has drawn the attention of the Court to the earlier filing of E.A.No.329 of 2003 under Order XXI Rule 89 wherein the Defendant has deposited the Decree Amount. Attacking the conduct of the Defendant, the learned counsel for the Respondent / Plaintiff has also submitted that immediately after deposit of the amount, the Revision Petitioner / Defendant has set up his Wife and Daughter to file Pauper O.P.No.10 of 2003 claiming Maintenance for past and future for herself and her Daughter in which, the amount deposited by the Defendant was attached, which shows lack of bonafide in deposit of the amount and in filing the Application to condone the Delay. Submitting that no Medical Certificate has been produced showing the illness, learned counsel for the Respondent / Plaintiff has contended that the Court below has rightly declined to condone the delay and the Impugned Order does not suffer from any infirmity warranting interference. 9. Upon consideration of the contentions of both parties, Impugned Order and other materials on record, the following points arise for consideration in this Civil Revision Petition: i. Having deposited the Decree Amount and filing Petition under Order XXI Rule 89 C.P.C (E.A.No.329 of 2003) can the Defendant seek to set aside the exparte Decree? ii.Whether the Revision Petitioner / Defendant acted with bonafide diligence and whether he was prevented by sufficient cause from appearing on 09.07.1999 and on the subsequent dates? iii.Whether the Impugned Order declining to condone the delay suffers from perversity warranting interference? 10. Order IX Rule 13 C.P.C envisages two different situations. It provides for setting aside of exparte Decree where summons have not been duly served on the defendant or where he is prevented by any sufficient cause from appearing when the suit is taken up for hearing. It is not the case that the Defendant had not received the summons. Even in the Affidavit, the Defendant has stated that he has "misplaced" the summons sent by the Court. The case was posted on 09.07.1999. According to the Defendant, from July 1999, he has been taken treatment at Coimbatore for his illness and that he could not appear on 09.07.1999 and on the subsequent dates. Whether the Defendant was prevented from sufficient cause and whether the delay of 1642 days in filing the Petition has been satisfactorily explained is the main point arising for consideration. For better appreciation of the contentious points, we may usefully refer to certain relevant dates: - Date of Exparte Decree :: 25.11.1999 E.P.No.155 of 2000 filed on :: 22.11.2000 Property sold on :: 12.11.2003 E.A.No.329 of 2003 under Order XXI Rule 89 C.P.C. Filed on :: 01.12.2003 E.A.No.329 of 2003 allowed and Sale Set Aside on :: 05.02.2004 I.A.No.61 of 2004 filed on :: 09.01.2004 11. In the Execution Petition, the Property – Item No.1 – 1.70 acres was sold on 12.11.2003 for Rs.7,00,500/-. One Rajendran was the Auction Purchaser, who has deposited 1/4th of the Sale Amount on 12.11.2003. In the Execution Petition, the Property – Item No.1 – 1.70 acres was sold on 12.11.2003 for Rs.7,00,500/-. One Rajendran was the Auction Purchaser, who has deposited 1/4th of the Sale Amount on 12.11.2003. At that stage, the Defendant has filed E.A.No.329 of 2003 under Order XXI Rule 89 C.P.C. by depositing the Decree Amount of Rs.6,67,620/- and prayed to set aside the sale. E.A.No.32 of 2004 was allowed on 05.02.2004. During the interregnum period, I.A.No.61 of 2004 was filed under Section 5 of the Limitation Act to condone the delay of 1642 days. Thus, it is clear that I.A.No.61 of 2004 was filed after E.A.No.329 of 2003 was filed and pending. 12. There is wide gap between the date of exparte Decree and the date of filing of the Application (09.01.2004). According to the Defendant, during the First Week of July 1999, he was suffering from Paralytic attack and was immobilised and could not appear in the Court nor could contact his counsel. The Defendant has to satisfactorily explain that he has sufficient cause for his non-appearance on 09.07.1999 and during the subsequent period. 13. No Medical Evidence has been produced showing that the Defendant was suffering from illness and immobilised. It is not as if the delay is short period; but there is inordinate delay of 1642 days – nearly about five years. Having received the summons, the Defendant ought to have exercised due diligence. The question is whether by human possibility the Defendant did not have time to contact his counsel, but whether he honestly intended to pursue the matter. In the facts and circumstances of the case, it is seen that there was no due diligence on the part of the Defendant. 14. Submitting that in the absence of materials explaining the sufficient cause, the Court cannot excuse the delay, learned counsel for the Respondent / Plaintiff has relied upon the decision reported in JAYAVERCHAND ..VS.. BALAN ( 1998 (1) L.W. 486 ) wherein this Court has held "....The judicial discretion can only be on the basis of some materials. 14. Submitting that in the absence of materials explaining the sufficient cause, the Court cannot excuse the delay, learned counsel for the Respondent / Plaintiff has relied upon the decision reported in JAYAVERCHAND ..VS.. BALAN ( 1998 (1) L.W. 486 ) wherein this Court has held "....The judicial discretion can only be on the basis of some materials. If there are no materials to exercise the discretion, the order can only be treated as perverse, which enables the Court to invoke the powers under Article 227 of the Constitution...." In this case also, no materials are produced showing that the Revision Petitioner has been suffering from illness and that he was prevented from appearing in the Court. 15. Contending that in considering the Applications under Section 5 of the Limitation Act, the Courts are to adopt a liberal approach, learned counsel for the Revision Petitioner / Defendant has relied upon number of decisions. In the decision reported in N.BALAKRISHNAN ..VS.. M.KRISHNAMURTHY ( 1998 (7) S.C.C. 123 ) the Supreme Court has held "....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 a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. 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 put forth 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. 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. 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. The words "Sufficient Cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice...." Observing that in considering the Applications to set aside abatement and condoning the delay in filing such petitions, the Supreme Court observed that the Courts are to adopt a liberal construction so as to advance substantial justice and held "....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 KUMARI (A.I.R. 1969 S.C. 575) and STATE OF WEST BENGAL ..VS.. ADMINISTRATOR, HOWRAH MUNICIPALITY (A.I.R. 1972 S.C. 749)...." 16. Observing that what constitutes sufficient cause cannot be laid down by hard and fast rule, in STATE OF NAGALAND ..VS.. LIPOK AO AND OTHERS ( 2005 (3) S.C.C. 752 ), the Supreme Court has held "....The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the Court. What counts is not the length of the delay but the sufficiency of the case and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N.BALAKRISHNAN ..VS.. M.KRISHNAMURTHY (A.I.R. 1998 S.C. 3222) it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. ......... What constitutes sufficient cause cannot be laid down by hard and fast rules. In NEW INDIA INSURANCE CO LTD., ..VS.. SHANTI MISRA ( 1975 (2) S.C.C. 840 ) this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In BRIJ INDAR SINGH ..VS.. In NEW INDIA INSURANCE CO LTD., ..VS.. SHANTI MISRA ( 1975 (2) S.C.C. 840 ) this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In BRIJ INDAR SINGH ..VS.. KANSHI RAM (A.I.R. 1917 P.C. 156) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In SHAKUNTALA DEVI JAIN ..VS.. KUNTAL KUMARI (A.I.R. 1969 S.C. 575) a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned...." 17. It is well settled that sufficient cause is to receive a liberal construction, but the question is whether in the instant case, the Defendant had sufficient cause and whether he had acted with reasonable diligence? 18. It is well settled that sufficient cause in each case is a question of fact. The words "sufficient cause" have got to be construed with regard to the facts and circumstances of each case. Since the words "sufficient cause" is a question of fact, it depends upon varied facts and circumstances of each case. In such cases, exercising discretion – in condoning the delay, it is very undesirable to act on precedents. Every Judge has to deal with particular facts of each case. So, the question cannot be decided with the aid of decisions. Whether the Defendant was prevented from sufficient cause and whether he exercised due diligence is to be considered in the light of facts and circumstances emerging in this case. 19. The case in hand suggests not only that the Defendant was negligent, but also there is lack of bonafide in his conduct. As noted earlier, E.A.No.329 of 2003 was filed under Order XXI Rule 89 C.P.C, wherein the Defendant has deposited the Decree amount of Rs.6,67,620/-. 19. The case in hand suggests not only that the Defendant was negligent, but also there is lack of bonafide in his conduct. As noted earlier, E.A.No.329 of 2003 was filed under Order XXI Rule 89 C.P.C, wherein the Defendant has deposited the Decree amount of Rs.6,67,620/-. In the said Petition, the Defendant sought to set aside the sale stating, "....12/11/2003k; njjp Vw;gl;l bcoa{ypy; fz;l 1tJ yhl; brhj;jpd; nghpy; Vw;gl;l Vyj;ij uj;J bra;Jk; ofphpia "full satisfaction Record" bra;Jk; ,!;jpahh; brhj;Jf;fspd; nghpy; Vw;gl;l $g;jpia ePf;fptpl cj;jputhf ntz;oaJ mtrpak;...." His Application was allowed on 05.02.2004 and the sale was set aside. 20. The Decree amount was deposited by the Defendant on 01.12.2003 along with E.A.No.329 of 2003 within a week. Thereafter, on 08.12.2003, the Defendant has set up his Wife and Daughter to file Pauper O.P.No.10 of 2003 claiming past and future maintenance. In O.P.No.10 of 2003, I.A.No.70 of 2004 was filed by the Defendant's Wife for attachment of Rs.4,00,000/- lying in E.P.No.155 of 2000. The amount lying in E.P.No.155 of 2000 was also attached towards the maintenance claim of the Defendant's Wife and Daughter. Thereafter, the Plaintiff was compelled to file I.A.No.167 of 2004 to raise the Attachment ordered in I.A.No.70 of 2004. It was during the interregnum period, the Defendant has filed I.A.No.61 of 2004 on 09.01.2004 under Section 5 of the Limitation Act to condone the delay of 1642 days in filing the Application to set aside the exparte Decree. The Application apart from lacking in bonafide clearly suggests malafide of the Defendant. 21. The primary intention of the Defendant seems to prevent the Plaintiff from withdrawing the amount. Having deposited the amount under Order XXI Rule 89 C.P.C and after getting the sale set aside, the Defendant has filed this Civil Revision Petition. In this Civil Revision Petition, C.M.P.No.76 of 2004 was filed seeking for Interim Injunction restraining the Plaintiff not to withdraw the Amount deposited in E.P.No.155 of 2000. However, since no document had been produced, evidencing the deposit of the amount in E.P.No.155 of 2000, this Court by order dated 25.08.2004 dismissed the Application. Thereafter, the Revision Petitioner has filed C.M.P.No.340 of 2004 to set aside the order dated 25.08.2004. The conduct of the Defendant clearly shows his malafide in trying to prevent the Respondent / Plaintiff from withdrawing the amount deposited in E.P.No.155 of 2000. 22. Thereafter, the Revision Petitioner has filed C.M.P.No.340 of 2004 to set aside the order dated 25.08.2004. The conduct of the Defendant clearly shows his malafide in trying to prevent the Respondent / Plaintiff from withdrawing the amount deposited in E.P.No.155 of 2000. 22. Contending that an opportunity is to be given to the Defendant to contest the Suit, learned counsel for the Revision Petitioner submitted that the Application may be allowed on payment of costs. 23. The lower Court has refused to exercise the discretion to execuse the delay finding that there was no materials. When the Court below has declined to condone the delay, in exercising the Revisional Jurisdiction, the High Court would not interfere with the order unless the Impugned Order is shown to be perverse or manifestly erroneous. There is nothing to suggest that the Impugned Order is perverse or erroneous warranting interference. This Civil Revision Petition is bereft of merits and is bound to fail. 24. For the foregoing reasons, the order dated 26.03.2004 of the learned Subordinate Judge, Karur in I.A.No.61 of 2004 in O.S.No.187 of 1999 is confirmed and this Civil Revision Petition is dismissed with the costs of the Respondent / Plaintiff. Learned Subordinate Judge, Karur is directed to dispose of the Cheque Application filed by the Respondent / Plaintiff expeditiously in accordance with law.