K. Chinnasamy Gounder (died) by LRs & Others v. K. A. Palanisamy Gounder & Others
2007-01-23
R.BANUMATHI
body2007
DigiLaw.ai
Judgment :- This Civil Revision Petition is directed against the order dated 08.08.1997 in I.A.No.464 of 1996 in O.S.No.623 of 1985 passed by Second Additional District Munsif, Coimbatore, dismissing the Petition to condone the delay in representation. 2. Brief facts are as follows:-The First Revision Petitioner / Plaintiff has filed O.S.No.623 of 1985 on the file of Second Additional District Munsif Court, Coimbatore for Partition and Separate Possession. For non appearance of the Plaintiff, the Suit was dismissed on 14.08.1995. The Plaintiff has filed an Application under O.9 R.9 C.P.C for restoration of the suit on 25.09.1995. Since there was delay of 11 days in filing the Application for restoration of the Suit, the Plaintiff has filed Application under Sec.5 of the Limitation Act to condone the delay of 11 days in filing that Application. Applications filed under O.9 R.9 C.P.C and Sec.5 of the Limitation Act were returned for rectification of certain defects. The Applications were not represented within the stipulated time, but were represented with a delay of 93 days. The Plaintiff has filed I.A.No.464 of 1996 to condone the delay of 93 days in representing the Application for restoration of the Suit. The lower Court declined to condone the delay in representation on the ground that the delay has not been satisfactorily explained. 3. Assailing the Impugned Order, learned counsel for the Plaintiff/Revision Petitioners has submitted that the delay in representation was only short range of delay and mistake committed by counsel cannot be a ground to refuse relief to the party. Submitting that liberal approach is to be adopted in condoning the delay in representation, learned counsel for the Petitioners has relied upon number of decisions. 4. Drawing the attention of the Court to the various dates and events, learned counsel for the Defendants/Respondents has submitted that the Plaintiff/First Revision Petitioner has initially filed the Application to restore the Suit with delay and diligent steps were not taken in pursuing the matter. Submitting that the delay in representation is deliberate and negligent, learned counsel for the Respondents has contended that for condoning the delay, the Plaintiffs Advocate Clerk has not filed the Affidavit. It was further submitted that the Suit is of the year 1985 and if the delay is condoned at this stage, the entire matter would revive after a period of two years. 5. I have carefully examined the records and considered the submissions.
It was further submitted that the Suit is of the year 1985 and if the delay is condoned at this stage, the entire matter would revive after a period of two years. 5. I have carefully examined the records and considered the submissions. The Applications under O.9 R.9 C.P.C and Section 5 of the Limitation Act were represented with a delay of 93 days. According to the Plaintiff, the reason for the delay is that the Applications and other connected papers got mixed up with the other case bundles in the Advocates Office and could not be traced and represented in time and the delay is bonafide. The Trial Court rejected the reason given for the delay in representation on the ground that neither the counsel nor Advocates clerk has filed the Affidavit to substantiate the plea of mixing up with other case bundles. In order to explain the delay i.e., mixing up with other case bundles and papers not traceable it would have been desirable if either Advocate or Advocates Clerk have sworn in affidavit. But, on the ground of non-filing of Affidavit either by Advocate or Advocates Clerk, the party cannot be made to suffer. More often it happens either due to the mistake on the part of the Advocate or Advocates Clerk. There is delay in representation of the case papers. In cases of undue delay, the Court has to scrutinise the reason for the delay with care and circumspection. In normal course where sufficient cause is shown for the delay, the Court may condone the delay in representation. 6. The Question of condonation of delay in representation came up for consideration before a Division Bench of this Court in Y.Kusbar ..Vs.. Subbarayan (1993 TLNJ 375). According to the facts arising in that case, there was a delay of 191 days in representing the papers. While considering this aspect, the Division Bench held as under:- "...This is not a case where the appeal has been filed out of time. This is a case in which the Appeal is filed in time. Therefore, it cannot be said that the decree under Appeal has assumed finality and the right has been accrued to the respondents. The delay in representation of the papers in the instant case cannot be put to the account of the party.
This is a case in which the Appeal is filed in time. Therefore, it cannot be said that the decree under Appeal has assumed finality and the right has been accrued to the respondents. The delay in representation of the papers in the instant case cannot be put to the account of the party. Several times it happens due to the mistake on the part of the Advocates Clerk or the Advocates in presenting the Appeal. Therefore, the Court has to take care to see that the justice does not suffer in such cases. If there is any undue delay in representation of the papers it can be compensated by awarding costs. Therefore, we are of the view that when the appeal has been filed in time, but there is delay in representation of the papers returned for rectification of the defects by the Appellate Court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs..." .7. Holding that the Plaintiff should not be deprived of valuable right to pursue the suit; more so in a Partition Suit, in the decision reported in Tmt. Muthammal ..Vs.. Gurunathan and others ( 1999 (I) C.T.C. 73 ), putting the Plaintiff on terms, S.JAGADEESAN, J. has condoned the delay in representation and ordered restoration of the Suit. In the said case, learned Judge has held as follows:- ."...Though in the normal course, the mistake committed by the counsel cannot be taken as a ground to grant the relief for the party but, atleast in some exceptional cases, the Court has to consider as to who is at fault in committing the mistake in order to give the relief. In this case, admittedly, it is the counsels mistake since it is his duty to pay the batta. It is not the case where the Plaintiff has been informed that her presence is necessary for any other purpose or the suit is ready and thereafter, the Plaintiff has neglected to attend the court or to meet her counsel. When the Suit has been dismissed at the mistake of the counsel for the Plaintiff and the counsel having failed to inform anything about the further progress of the suit to his client, I am of the view that the Plaintiff cannot be deprived of her valuable rights, especially when the suit is one for Partition..." 8.
When the Suit has been dismissed at the mistake of the counsel for the Plaintiff and the counsel having failed to inform anything about the further progress of the suit to his client, I am of the view that the Plaintiff cannot be deprived of her valuable rights, especially when the suit is one for Partition..." 8. In the decision reported in R.S.Munirajan ..Vs.. M/s. Jaya Theatre, Thanjavur Road, Kumbakonam ( 1995 (I) C.T.C. 587 ), the lower Court has declined to condone the delay of 102 days. Referring to various decisions, this Court in the said decision has held that filing of Affidavit by Advocate Clerk stating the reason for the delay that papers got mixed up with other papers would be a sufficient cause for condoning the delay in representation. 9. Frequently Courts are confronted with the Applications filed in the Courts seeking for condonation of delay in representation. The condonation of delay in representation of the Plaint Papers and other case papers is no doubt between the Court on the one hand and the party who has filed the proceeding on the other hand. The Court must exercise the discretion in a meaningful manner, which sub-serves the ends of justice. Keeping in view the party, who has filed the proceeding and the interest of the other party where the delay in representation is a reasonable and sufficient cause shown, the Court may exercise discretion in condonation of delay. 10. In condoning the delay in representation, no hard and fast rule can be laid down for invariable application. What is "reasonable delay", "sufficient cause" in each case have got to be construed with regard to the facts and circumstances of each case. In condoning the delay in representation, every Judge has to deal with particular situation of each case. 11. Where there is reasonable delay in representation, Courts are to adopt liberal approach. Party is not required to explain each days delay in representation as is required under Section 5 of the Limitation Act. The test is whether the Party or the Advocate honestly intended to represent the papers. In cases where there is gross negligence or inaction, the Court may turn away the request to condone the delay in representation.
Party is not required to explain each days delay in representation as is required under Section 5 of the Limitation Act. The test is whether the Party or the Advocate honestly intended to represent the papers. In cases where there is gross negligence or inaction, the Court may turn away the request to condone the delay in representation. Where there is an inordinate delay and where the delay in representation occasioned deliberately or due to culpable negligence or on account of inaction, the Court should refrain from condoning the delay in representation. .12. A Division Bench of this Court in M.Subramania Mudaliar ..Vs.. K. Janardhanam and others ( 1994 (I) M.L.J 152 ) while considering a delay of six years in representation held that,"...the reasons given by the Junior Advocate for condonation of delay in representation of six years is not convincing. Therefore, the delay was not excused...". 13. What is reasonable delay in representation would depend upon the facts and circumstances of each case. In the case on hand, there is short range of delay of 93 days in representation of the Applications under O.9 R.9 C.P.C and Sec.5 of the Limitation Act. If the delay in representation is not condoned, it would amount to shutting of the doors to the Plaintiff in pursuing the suit for partition. It is held that the delay of 93 days in representing the Applications can be condoned since the Revision Petitioners have made out a case for condoning the delay. Accordingly, the delay of 93 days in representing the Applications is condoned. 14. In the result, the order dated 08.08.1997 in I.A.No.464 of 1996 in O.S.No.623 of 1985 of the Second Additional District Munsif, Coimbatore is set aside and this Civil Revision Petition is allowed. The delay of 93 days in representation of the Applications is condoned. The Trial Court is directed to number the Applications if otherwise in order and proceed with the matter in accordance with law. No costs.