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2006 DIGILAW 2977 (MAD)

S. Kuppammal & Others v. A. G. Kannusami

2006-11-04

P.SATHASIVAM

body2006
Judgment :- (Revision Petition filed under Section 115 of the Code of Civil Procedure against the fair and decreetal order dated 23.03.2005 made in I.A.No.1143 of 2002 in O.S.No.58 of 2000 on the file of Subordinate Judge, Tirupur.) The above revision is directed against the order of the learned Subordinate Judge, Tirupur dated 23.03.2005 made in I.A.No.1143 of 2002 in O.S.No.58 of 2000, in and by which the learned Judge condoned the delay of 803 days in filing a petition to set aside the abatement caused due to the death of the defendant. 2. Heard the learned counsel for the petitioners as well as for the respondent. 3. The respondent herein/plaintiff filed O.S.No.58 of 2000 on the file of Subordinate Judge, Tiruppur, praying for decree for specific performance based on an agreement dated 30.07.1998. Pending the said suit, the defendant died on 02.02.2001, leaving behind his two daughters and one son as his legal heirs. The plaintiff filed I.A.No.1143 of 2003, praying to condone the delay of 803 days in filing an application under Order XXII Rule 9 of Code of Civil Procedure. In the affidavit filed in support of the above petition it is stated that he was not aware of further proceedings after the death of the defendant on 02.02.2001. It is further stated that recently he came to know that the legal heirs of the defendant have to be impleaded in the suit and filed the present application with a request to condone the delay of 803 days. The said application was resisted by the proposed parties by filing counter statement. It is stated that the death of the defendant was intimated to the Court as early as on 02.03.2001 and memo was filed recording the death of the defendant. It is further stated that the petitioner/plaintiff knowing fully well that he has to take steps within the time and voluntarily allowed the suit to be abated. The proposed parties also filed additional counter statement giving further details. 4. The learned Subordinate Judge, basing reliance on the decision of this Court and in order to give one more opportunity to the plaintiff to pursue his suit on merits, condoned the delay and allowed the said application. 5. The proposed parties also filed additional counter statement giving further details. 4. The learned Subordinate Judge, basing reliance on the decision of this Court and in order to give one more opportunity to the plaintiff to pursue his suit on merits, condoned the delay and allowed the said application. 5. The learned counsel for the petitioners heavily relied on the information furnished in the counter statement, viz., that the death of the defendant was intimated to the Court even on 02.03.2001 and in spite of the same no steps were taken for bringing the legal representatives of the deceased defendant. On the other hand, the learned counsel for the respondent submitted that in the absence of details about the memo and the particulars of the legal representatives of the defendant, the plaintiff cannot be blamed. He also contended that inasmuch as the Court below after satisfying itself, exercised its discretion, in order to pursue the suit on merits, interference by the revisional Court is limited. In support of the above contention, he relied on the decision of the Apex Court in the case of N. Balakrishnan vs. M. Krishnamurthy reported in 1998 (II) CTC 533. 6. It is true that the counter statement filed before the Court below shows that by way of memo it was intimated about the death of the defendant. However, it is not clear whether the plaintiff was informed about the actual date of death of the defendant and his legal representatives. On the other hand, the reference made in para 6 of the order of the learned Subordinate Judge shows that petition/petitions have been filed, no doubt with certain defects and the same were returned by the Office periodically. In this regard it is useful to refer the observation and the ultimate conclusion of their Lordships in 1998 (II) CTC 533 (cited supra). "10. It is axiomatic that 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 within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. 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 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 want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 11. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 13. A court knows that refusal to condone delay would result in for closing 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 v. Kuntal Kumari ( AIR 1969 SC 575 ) and State of West Bengal v. The Administrator, Howrah Municipality ( AIR 1972 SC 749 ). 14. 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 run down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. That alone is not enough to run down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is 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. 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 quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party of his loss. " 7. It is clear from the above decision that if the explanation is not a part of dilatory strategy, it is the duty of the Court to show utmost consideration to the suiter. Taking note of the above principle and of the details available in para 6 of the order of the learned Subordinate Judge, who after satisfying himself that an opportunity should be given to the petitioner/plaintiff to pursue his suit, exercised his discretion. In the absence of any other material, I am not inclined to interfere with the said order, more particularly in the light of the claim made in the suit. Consequently, the civil revision petition fails and the same is dismissed. No costs. Connected CMP., is closed.