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2005 DIGILAW 1515 (MAD)

T. A. Abdul Salam v. K. A. Kalith & Others

2005-09-10

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 27.07.1998 passed by the Principal District Munsif, Tirunelveli in I.A.No.153 of 1998 in O.S.No.201 of 1989, as stated therein.) This Civil Revision Petition is directed against the order dated 27.07.1998 of the Principal District Munsif, Tirunelveli in I.A.No.153 of 1998 in O.S.No.201 of 1989, dismissing the Petition filed under Section 5 of the Limitation Act, declining to condone the delay of 569 days in filing the Application to set aside the exparte Decree passed in O.S.No.201 of 1989. The Fourth Defendant is the Revision Petitioner. 2. The Respondents / Plaintiffs have filed O.S.No.201 of 1989 before the Principal District Munsif, Tirunelveli for themselves and as representatives of Members of Thoheed Movement for Permanent Injunction, restraining Defendants 1 to 4 from in any way preventing the Plaintiffs or Members of Thoheed Movement to perform religious services according to Muslim Religion and by reading "QURAN" and Sunna by fixing the Boards in Tirunelveli and Melapalayam in the Mosques located at Asad Road, Melapalayam, Quyeed-e-Milleth Street, Melapalayam and Kothuva Mosque. The matter is said to have been entrusted to the Third Defendant – Meeran Mohideen, authorising him to engage counsel to defend the Suit and to take appropriate proceedings to get along with the Suit. 3. The Defendants have entered appearance and filed their Written Statement. The Suit was ripe for trial from 1992. For the non-appearance of Defendants 1 to 4, they have been set exparte on 09.11.1995 and Exparte Decree was passed on the same day. 4. I.A.No.153 of 1998: - This Application has been filed under Section 5 of the Limitation Act to condone the delay of 569 days in filing the Application to set aside the exparte Decree. According to the Petitioners / Fourth Defendant, the Third Defendant has not informed them about the posting of the Suit for Trial and the counsel has also not informed the other Defendants about the Trial on 09.11.1995. The Revision Petitioner / Fourth Defendant came to know about the exparte Decree only when the summons in the Execution Proceedings were served upon him. The Revision Petitioner / Fourth Defendant came to know about the exparte Decree only when the summons in the Execution Proceedings were served upon him. Further, according to the Petitioner / Fourth Defendant, he was taking medical treatment due to cardiac problem and hence, he could not immediately contact the counsel and get the details and the Application to set aside the exparte Decree was filed on 03.07.1997 along with the Application under Section 5 of the Limitation Act. 5. The Application was resisted by the Plaintiffs alleging that the inordinate delay has not been properly explained. The Third Defendant is residing only at a distance of about 120 yards from the house of the Plaintiffs and the Defendants ought to have taken diligent steps in conducting the case. Only after E.P.No.110 of 1997 was filed, the Fourth Defendant has preferred the Application to evade the Execution Proceedings. Since the delay has not been properly explained, the Petitioner / Fourth Defendant cannot seek to set aside the exparte Decree. 6. Upon consideration of the averments in the Affidavit and in the Counter Statement, learned District Munsif has dismissed the Application finding that the delay of 569 days in filing the Application to set aside the exparte Decree has not been properly explained. It was pointed out that the other Defendants 1 to 3 have not taken any steps for setting aside the exparte Decree. Referring to Ex.P.1 – Medical Certificate produced by the Petitioner / Fourth Defendant, the lower Court was of the view that the Petitioner had taken medical treatment only from 26.04.1997 to 29.04.1997 and the Application has been filed only on 03.07.1997 and the Petitioner / Fourth Defendant was careless in taking diligent steps. 7. Aggrieved over the order of dismissal of the Application, the Revision Petitioner has preferred this Civil Revision Petition. In the year 1998, this Revision Petition was not admitted. Notice of Motion was ordered. Respondents / Plaintiffs have entered appearance through their counsel. Though the Revision Petition is pending (Notice of Motion stage itself), arguments of both the parties were heard and the Revision Petition is disposed of after fully hearing the parties. 8. In the year 1998, this Revision Petition was not admitted. Notice of Motion was ordered. Respondents / Plaintiffs have entered appearance through their counsel. Though the Revision Petition is pending (Notice of Motion stage itself), arguments of both the parties were heard and the Revision Petition is disposed of after fully hearing the parties. 8. Assailing the impugned order, learned counsel for the Petitioner / Fourth Defendant has submitted that the Third Defendant, who was incharge of the case has not properly informed the other Defendants about the stage of the case and hence, the Petitioner / Fourth Defendant could not appear in the Court on 09.11.1995 to conduct the case. It is further submitted that the Petitioner was taking treatment for his cardiac problem from 26.04.1997 to 29.04.1997, which aspect was not properly considered by the lower Court. Placing reliance upon the decision reported in 2005 (2) C.T.C. 766 , learned counsel for the Revision Petitioner has submitted that "Sufficient Cause" should be liberally construed. It is further submitted that even if the delay is not properly explained to meet the ends of justice, the delay has to be condoned. In support of his contention, learned counsel for the Revision Petitioner has placed reliance upon the decision reported in 2003 (3) M.L.J. 369 . 9. Countering the arguments, learned counsel for the Respondents / Plaintiffs has submitted that in the Suit for Permanent Injunction, the Defendants were restrained from preventing the Plaintiffs from offering worship in the manner stated by them and by the exparte Decree, no serious prejudice would be caused to the Defendants. It is further submitted that in the facts and circumstances of the case, the Fourth Defendant has not satisfactorily explained the inordinate delay of 569 days. The main contention urged is that other Defendants 1 to 3 have not joined with the Petitioner / Fourth Defendant in filing the Application to set aside the exparte Decree and that the other community people have not filed any affidavit alleging prejudice to their worship. Learned counsel for the Respondents / Plaintiffs has submitted that the Impugned Order does not call for interference. It is further submitted that the Decree is of the year 1995 and at this stage, there is no reason to reopen the case. 10. Learned counsel for the Respondents / Plaintiffs has submitted that the Impugned Order does not call for interference. It is further submitted that the Decree is of the year 1995 and at this stage, there is no reason to reopen the case. 10. Whether the delay of 569 days in filing the Application to set aside the exparte Decree is satisfactorily explained and whether the Impugned Order declining to condone the delay is perverse and erroneous warranting interference are the only points that arise for consideration in this Civil Revision Petition. 11. Contending that the expression "Sufficient Cause" should receive liberal construction to advance substantial justice, learned counsel for the Revision Petitioner / Fourth Defendant has placed reliance upon the decision of a Divison Bench of this Court reported in Mohammed Aslam And Others ..Vs.. C.N.A.Gowdhaman ( 2005 (2) C.T.C. 766 ). In the said decision, it was held that where there is reasonable ground to think that the delay was occasioned, even after due diligence, the delay could be condoned and the length of the days is not the criteria. The Division Bench has observed, "....Equally, we are conscious of the fact that the length of delay is no matter, and acceptability of the explanation is the only criterion. Sometimes the delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases, delay of a very long range can be condoned as the explanation therefor is satisfactory. In every case of delay, there may be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack the 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 not lean towards acceptance of the explanation. We are also aware that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is n presumption that delay in approaching the Court is always deliberate. We are also aware that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is n presumption that delay in approaching the Court is always deliberate. Now, even the higher Court of this land have interpreted that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice". 12. It is well settled that the expression "Sufficient Cause" must generally receive a liberal construction, so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to the Petitioner. The words "Sufficient Cause" is a question of fact, which has to be determined on the facts and circumstances of each case. It cannot be determined by strictly applying the precedents. The discretion has to be exercised in consideration of the facts and circumstances of each case. 13. Seeking to condone the delay, the Revision Petitioner / Fourth Defendant has set forth two fold contentions. Firstly, according to the Revision Petitioner, the Third Defendant was incharge of the case and that the Third Defendant has not informed the other Defendants about the stage of the case and hence, other Defendants could not appear on 09.11.1995. Secondly, it is alleged that the Revision Petitioner / Fourth Defendant was suffering from illness and he could not take early steps to set aside the exparte Decree. The Suit in O.S.No.201 of 1989 was filed on 09.01.1989. Defendants 1 to 4 have entered appearance and filed the Written Statement. The case was ripe for trial and posted for Trial from 03.07.1992. The case was posted in the list on 09.11.1995. The Plaintiffs were ready for the Trial. Defendants have neither appeared nor conducted the case. On the same day, P.W.1 was examined and the Suit was decreed exparte on 09.11.1995. Till 1997, the Defendants have not taken any steps to set aside the exparte Decree. The Defendants have not chosen to contact their counsel nor enquired about the pending Suit. Had the Revision Petitioner been careful, he would have chosen to enquire the matter either from the Third Defendant or with the Counsel. In the Counter Statement, it is alleged that the house of the Third Defendant is only at a short distance of about 120 yards. Had the Revision Petitioner been careful, he would have chosen to enquire the matter either from the Third Defendant or with the Counsel. In the Counter Statement, it is alleged that the house of the Third Defendant is only at a short distance of about 120 yards. In all probability, the Third Defendant would have known about the passing of the exparte Decree. While so, it is quite unbelievable that the Revision Petitioner had not known about the exparte Decree at earlier point of time. 14. The Revision Petitioner / Fourth Defendant has examined himself as P.W.1 in the Interlocutory Application. In his evidence, he has stated that for his cardiac problem, he was taking treatment in Tirunelveli Medical College Hospital from 26.04.1997 to 29.04.1997. To substantiate his contention, Ex.P.1 – Medical Certificate issued by the Hospital was produced. The Application I.A.No.153 of 1998 was filed on 03.07.1997. The Revision Petitioner / Fourth Defendant has not explained the reason for the delay during the spell of time from 29.04.1997 to 03.07.1997. It is relevant to note that the Plaintiffs have filed E.P.No.110 of 1997 against the Revision Petitioner / Fourth Defendant, in which he was served. Revision Petitioner / Fourth Defendant had filed the Application in I.A.No.153 of 1998 only after he was served with the Notice in the Execution Petition. Learned District Munsif has rightly found that there is inordinate delay of 569 days in filing the Application to set aside the exparte Decree and the same has not been satisfactorily explained. 15. It is relevant to note that the Petition to set aside the exparte Decree has been filed only by the Revision Petitioner / Fourth Defendant. The other Defendants 1 to 3 have not filed any Petition to set aside the exparte Decree. The Decree is of the year 1995. The other Defendants are neither the Petitioners nor shown to be Respondents in I.A.No.153 of 1998. It is not known as to why the other Defendants have not been included either as Petitioners or as Respondents. If the Application in I.A.No.153 of 1998 is to be allowed, the exparte Decree could be set aside only as against the Revision Petitioner / Fourth Defendant and not against the other Defendants, would result in conflicting Decree. 16. It is not known as to why the other Defendants have not been included either as Petitioners or as Respondents. If the Application in I.A.No.153 of 1998 is to be allowed, the exparte Decree could be set aside only as against the Revision Petitioner / Fourth Defendant and not against the other Defendants, would result in conflicting Decree. 16. Onbehalf of the Revision Petitioner / Fourth Defendant, it is further contended that though no sufficient cause has been shown for the delay, to advance substantial justice, the Petition is to be allowed. The Plaintiffs are Members of Thoheed Movement and performance of religious services by them causes serious prejudice to the other Members of the Muslim community, affecting their religious sentiments. Reliance has been placed upon the decision reported in Thirumurthy ..Vs.. Muthammal ( 2003 (3) M.L.J. 369 ). In the above decision cited, the Suit was filed for Specific Performance involving the huge amount of Sale Consideration. In the light of the defence set forth by the Defendants to afford an opportunity to the Defendants, notwithstanding the non-explanation of the delay, the exparte Decree was set aside giving the Defendants an opportunity to contest the Suit. The case in hand stands on different footing. The Defendants are alleged to be preventing the Plaintiffs from performing the religious practice and reading Prophet and Sunna by fixing the Boards in the Mosque. Offering of such worship cannot be said to cause serious prejudice to other Members of the Muslim Community. If any such prejudice is caused to any Members, other Defendants or Members might have taken steps to set aside the exparte Decree. It is pertinent to note that supporting the Revision Petitioner / Fourth Defendant, none of other Defendants nor other Members have filed any Affidavit alleging infringement of their religious sentiments. Hence, the contention that the delay is to be condoned though no sufficient cause is shown does not merit acceptance. 17. Considering the facts and circumstances of the case and the inordinate delay in filing the Application to set aside the exparte Decree, the lower Court rightly found that the Revision Petitioner / Fourth Defendant has been careless in conducting the Suit. When the lower Court has exercised the discretion refusing to condone the delay, in exercising the revisional jurisdiction, the High Court would not interfere unless the Impugned Order is shown to be manifestly erroneous or unjust. When the lower Court has exercised the discretion refusing to condone the delay, in exercising the revisional jurisdiction, the High Court would not interfere unless the Impugned Order is shown to be manifestly erroneous or unjust. There is nothing to indicate that the Impugned Order suffers from any such irregularity warranting interference. This Civil Revision Petition has no merits and is bound to fail. 18. For the foregoing reasons, the order dated 27.07.1998 of the Principal District Munsif, Tirunelveli in I.A.No.153 of 1998 in O.S.No.201 of 1989 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No.13563 of 1998 is dismissed.