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2007 DIGILAW 381 (MAD)

Kandasamy v. Kaliannagounder

2007-01-31

R.BANUMATHI

body2007
Judgment :- Challenge in this Revision Petition is dismissal of the application I.A.No.1615/2004, declining to condone the delay of 925 days. 2. Factual background of the case are as follows:- 2. 1. The Respondent filed O.S.No.257/1992 before the Sub Court, Sankari for recovery of money based on Promissory Note, dated 30.04.1990, for Rs.45,000/-. Petitioner/ Defendant received summons and entered appearance and filed his Written Statement on 21.06.2003 interalia raising various defence and also discharge. The suit was posted for trial in the list on 20.01.1998. According to the Petitioner, he was suffering from jaundice and hence, he could not appear before the Court to give instructions to his counsel to get an adjournment and the suit was decreed exparte on 20.01.1998. .2. Execution Petition was filed for executing the Decree and the Petitioner received notice in the Execution Petition and entered appearance on 08.06.2000. Petitioner filed application under Or.9 R.13 CPC along with application I.A.No.1083/2000 [I.A.No.1615/2004] to condone the delay of 925 days in filing the Petition to set aside the exparte Decree. The application was transferred to District Munsif Court, Tiruchengode and renumbered as I.A.No.1615/2004. Pointing out that Petitioner received the notice in Execution Petition on 25.02.2000, but had filed the application only in August 2000 and the reason for the delay is not satisfactorily explained, the lower Court dismissed the application refusing to condone the delay. Challenging that Order, the present Revision Petition has been filed. 3. The learned Counsel for the Petitioner submitted that though there are lapses on the part of the Petitioner, he has substantial defence to put forth in the Promissory Note Suit and an opportunity is to be given to him. Submitting that the discretion under Section 5 of the Limitation Act is to be construed liberally, the learned Counsel for the Petitioner placed reliance upon the oft quoted Judgment of the Supreme Court reported in 1998 AIR SCW 3139 = (1998) 7 SCC 123 . 4. The learned Counsel for the Respondent contended that the reason for the inordinate delay of 925 days was not satisfactorily explained and in proper exercise of discretion, the Court has dismissed the application an the same is to be confirmed. 5. What constitutes sufficient cause cannot be laid down by hard and fast rules. 4. The learned Counsel for the Respondent contended that the reason for the inordinate delay of 925 days was not satisfactorily explained and in proper exercise of discretion, the Court has dismissed the application an the same is to be confirmed. 5. What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co.Ltd. Vs.Shanti Misra [ 1975 (2) SCC 840 ] this Court held that discretion given under Section 5 should not be defined or crystallized 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 [AIR 1917 PC 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 [ 1969(1) SCR 1006 ] 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. .6. In N.Balakrishnan Vs. M.Krishnamurthy [ AIR 1998 SC 3222 ] it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. 7. Unless there is evidence of culpable negligence or laches, from which inference can be drawn that the parties are adopting dilatory tactics, the explanation offered by the Petitioner is to be liberally construed. 8. Even in 1993, Petitioner has entered appearance by filing Written Statement interalia raising various contentions. 7. Unless there is evidence of culpable negligence or laches, from which inference can be drawn that the parties are adopting dilatory tactics, the explanation offered by the Petitioner is to be liberally construed. 8. Even in 1993, Petitioner has entered appearance by filing Written Statement interalia raising various contentions. According to the Petitioner, he has borrowed a sum of Rs.20,000/- from one Internal Finance, Ethermedu, Komarapalayam and subsequently repaid the entire interest and Rs.5,000/-towards the principal and the finance partners insisted to close the amount and open fresh account with fresh sureties. Further defence of the Petitioner is that at the time of opening new account, the said finance has obtained signatures in some blank papers and unfilled promissory notes and that he has paid the entire due but the said finance has refused to return the promissory note by giving evasive reply. The Petitioner appears to have raised substantial defence. According to the Petitioner, from 20.01.1998, he was affected by jaundice and was taking native treatment and could not contact his counsel to give instructions to get along with the matter. There is no reason to disbelieve the reasons stated by the Petitioner. .9. In the Execution Petition, Petitioner received notice on 25.02.2000 and entered appearance in June 2000. The Petitioner has filed application under Or.9 R.13 CPC along with application to condone the delay in filing that application on 08.08.2000. The matter was pending before the Sub Court Sankari and later transferred to Sub Court, Namakkal in 2002 and renumbered as I.A.No.1411/2002. The matter was pending before Sub Court, Namakkal for quite some time and the Petition was also argued. At that stage, the Petitioner has filed amendment application to correct the date, stating that date of knowledge of Decree has been mistakenly stated. After the filing of the amendment application, the matter was transferred to District Munsif Court, Tiruchengode and the application was renumbered as I.A.No.1615/2004. After transfer, amendment was carried out and the application was taken up. From various dates and events of the Petition and orders, it is seen that despite transfer of application from one Court to another, the Petitioner has been diligent in pursuing the matter. Taking into consideration the conduct of the Petitioner, no gross negligence or deliberate inaction could be attributed to the Petitioner. 10. No doubt in 1998, there were some laches on the part of the Petitioner. Taking into consideration the conduct of the Petitioner, no gross negligence or deliberate inaction could be attributed to the Petitioner. 10. No doubt in 1998, there were some laches on the part of the Petitioner. That alone cannot be the reason to refuse to condone the delay. The Revision Petitioner has specific defence to put-forth. If the delay is not condoned, the Petitioner would be deprived of the opportunity in contesting the suit. 11. I find that the Petitioner has made out sufficient cause for the delay in filing the application. The lower Court has not exercised the discretion properly. Since the matter is pending for quite some time, the delay could be condoned by compensating the Respondent/Plaintiff by awarding cost of Rs.1,000/- [Rupees One Thousand only]. 12. The Order in I.A.No.1615/2004 is to be allowed on payment of Rs.2,000/- [Rupees Two Thousand], to be deposited in Court to the credit of C.S.NO.257/1992, within a period of four weeks from the date of this Order. On such deposit, the trial Court is directed to number the application under Or.9 R.13 CPC and favourably consider the same and thereafter restore the suit and proceed with the suit in accordance with law. The trial Court is directed to dispose of the suit within a period of four months from the date of this Order. 13. In the result, the Order made in I.A.No.1615/2004 is set aside and this Revision Petition is allowed. No costs. Consequently, CMP No.10766/2005 is closed.