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2007 DIGILAW 606 (MAD)

Varadhan v. Chinnakannu (Deceased) & Others

2007-02-19

R.BANUMATHI

body2007
Judgment :- This Civil Revision Petition is directed against the order dated 012. 1999 passed by the Principal District Munsif, Salem in I.A.No.900 of 1997 in O.S.No.429 of 1996, dismissing the Application filed under Section 5 of the Limitation Act, declining to condone the delay of 349 days in filing the Application to set aside the exparte Preliminary Decree. First Defendant is the Revision Petitioner. 2. 1. Facts in nutshell are as follows:-The Petitioner, First Respondent / Plaintiff and other Defendants are descendants of Kuppa Boyan. The First Respondent / Plaintiff filed O.S.No.610 of 1995 (renumbered as O.S.No.429 of 1996 on the file of District Munsif Court, Salem) for Partition and Separate Possession of her 1/4th share in the Suit Property. The Defendants have not entered appearance and exparte Preliminary Decree was passed on 17.07.1996. The Plaintiff has filed I.A.No.60 of 1997 for passing of Final Decree. In I.A.No.60 of 1997 also Notice was duly served upon the Revision Petitioner; but the Revision Petitioner has not entered appearance and further proceedings was ordered. Commissioner has inspected the Suit Property for effecting division. 2. 2. At that stage, the Petitioner has filed Application under Section 5 of the Limitation Act to condone the delay of 349 days in filing the Application to set aside the exparte Preliminary Decree. The Petitioner filed the Application alleging that he had not been served with Suit Summons and the First Respondent / Plaintiff has clandestinely obtained the Decree. Further, according to the Petitioner, he was suffering from Jaundice and taking treatment and only when he approached the villagers seeking financial help for his treatment, he came to know about the passing of the Decree. After contacting Counsel, the Petitioner had filed Application under Section 5 of the Limitation Act, seeking condonation of delay. 2. 3. Pointing out serving of Suit Summons and Notice in the Final Decree proceedings, the lower Court dismissed the Application. Learned Principal District Munsif also observed that the Petitioner had not produced any Medical Evidence showing his ailment and treatment. Observing that no sufficient cause is shown for the delay, the lower Court declined to condone the delay and dismissed the Application, which is challenged in this Revision Petition. 3. Learned Principal District Munsif also observed that the Petitioner had not produced any Medical Evidence showing his ailment and treatment. Observing that no sufficient cause is shown for the delay, the lower Court declined to condone the delay and dismissed the Application, which is challenged in this Revision Petition. 3. The order is impugned on the ground that Suit Summons was not served upon the Petitioner and he was suffering from Jaundice and could not contact his counsel to contest the Suit. It was further submitted that the Suit being a Partition Suit, indulgence has to be shown to the Petitioner in condoning the delay, so as to afford an opportunity to the Petitioner to contest the Suit. 4. Drawing the attention of the Court to the documents filed during enquiry, learned counsel for the Respondent / Plaintiff has submitted that the Petitioner was duly served with Suit Summons and Notice in Final Decree proceedings. It was further submitted that on 13.07.2001, Final Decree was passed and at this stage, if Preliminary Decree is to be set aside, it would cause serious prejudice to the Plaintiff. 5. Whether the Revision Petitioner has explained sufficient cause for the inordinate delay and whether there is improper exercise of discretion in refusal to condone the delay are the short points arising for consideration in this Revision Petition. 6. According to the Revision Petitioner, he was not served with Suit Summons and Preliminary Decree is unsustainable. By perusal of the Impugned Order, it is seen that the Petitioner and another Sister – Chinnammal were duly served with Suit Summons (Ex.C.1) and Notice in Final Decree Proceedings (Ex.C.3). Referring to the records, the lower Court has noticed serving of Suit Summons upon the Revision Petitioner in O.S.No.610 of 1995 (renumbered as O.S.No.429 of 1996). In Final Decree proceedings in I.A.No.60 of 1997 also Notice was served upon the Petitioner. When the Petitioner was served with Suit Summons and Notice in Final Decree proceedings, he is expected to appear and pursue the matter. According to the Petitioner, he was suffering from Jaundice and was taking treatment and his Wife accompany him for assisting him while taking treatment and hence, they could not know about the Decree passed against them. As pointed out by the lower Court, the Petitioner had not produced any evidence showing his ailment and treatment. According to the Petitioner, he was suffering from Jaundice and was taking treatment and his Wife accompany him for assisting him while taking treatment and hence, they could not know about the Decree passed against them. As pointed out by the lower Court, the Petitioner had not produced any evidence showing his ailment and treatment. In the absence of any evidence showing that the Petitioner was incapacitated from attending the Court, the Impugned Order, declining to condone the delay cannot be interfered with. 7. By catena of decisions, it is well settled that the expression "Sufficient cause" is to be liberally construed and that a liberal approach should be adopted while considering the Application for condonation of delay. Generally delays are to be condoned excepting where there was deliberate inaction, gross negligence or lack of bonafide on the part of the applicant. In all those decisions, there is underlying note of caution that when there is deliberate inaction or lack of bonafide, in such cases, no diligence could be shown. The valuable right accrued to the other party should not lightly be defeated by condoning the delay in a routine manner. In the decision reported in Ram Nath Sao ..Vs.. Gobardhan Sao (2002 (3) L.W. 417), the position set out by the Supreme Court is as under:- "...There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But, one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation, furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and / or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, the Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. ...." 8. The principles relating to Rule of Limitation and legal position have been stated by a Division Bench of this Court in the Judgment reported in C. Subramaniam ..Vs.. Tamil Nadu Housing Board rep. By its Chairman and Managing Director ( 2000 (3) C.T.C. 727 ), wherein it was held as follows:- "...31. ...." 8. The principles relating to Rule of Limitation and legal position have been stated by a Division Bench of this Court in the Judgment reported in C. Subramaniam ..Vs.. Tamil Nadu Housing Board rep. By its Chairman and Managing Director ( 2000 (3) C.T.C. 727 ), wherein it was held as follows:- "...31. To turn up the legal position, (1) the word "sufficient cause" should receive liberal construction to do substantial justice; (2) what is "sufficient cause" is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion (5) 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 in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he / she is put to manifest injustice or hardship, the discretion exercised by the lower Court is not liable to be revised; (8) 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; (9) If the delay was occasioned by party deliberately to gain time, then the Court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether..." 9. While condoning the delay the Court should not forget the opposite party altogether. In yet another decision reported in Sundar Gnanaolivu Vs. Rajendran Gnanavolivu (2003 (1) L.W. 585) the Division Bench of this Court has held as under:- "...14. A. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd., Tuticorin Vs. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan as he then was, in paragraphs 14 and 17 which read as under:- 14....... Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan as he then was, in paragraphs 14 and 17 which read as under:- 14....... If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the Respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. 17..... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?...." 10. "Sufficient cause" is to receive liberal construction so as to advance substantial justice. While considering Application under Section 5 of the Limitation Act, discretion is to be exercised like any other judicial discretion with vigilance circumspection. Delay cannot be excused as a matter of judicial generosity. While condoning the delay, the Court should not forget the right ensured to the Plaintiff and other sharers. 11. While considering Application under Section 5 of the Limitation Act, discretion is to be exercised like any other judicial discretion with vigilance circumspection. Delay cannot be excused as a matter of judicial generosity. While condoning the delay, the Court should not forget the right ensured to the Plaintiff and other sharers. 11. In this Civil Revision Petition, no Stay was granted. Hence, Final Decree was passed on 13.07.2001 and shares were allotted to the Plaintiff and other sharers. The Plaintiff also died. In this Revision also, the Petitioner had not taken any steps for impleading the Legal Representatives of the Deceased / Plaintiff. The Legal Representatives of the Plaintiff only have taken steps for impleading themselves as Respondents in this Revision. It is also relevant to note that the Revision Petitioner / First Defendant had not impleaded other Defendants in this Revision. When Final Decree was passed in 2001, the same cannot be interfered with. 12. The object of law of limitation is to prevent disturbance or deprive of what might have acquired over the years. There should be an end to the litigation so as to avoid uncertainties and possibilities on the parties being dragged in the Court for indefinite period. In Applications where there is lack of bonafide, liberal exercise of jurisdiction under Section 5 of the Limitation Act will lead to uncertainties of litigation. The Revision Petitioner claiming indulgence has not satisfied the acid test that he was reasonably diligent in prosecuting the proceedings. Having referred the inordinate delay, the lower Court has rightly declined to condone the delay. When the lower court has declined to condone the delay, the Revisional Court would not interfere unless the same is perverse or unreasonable. If the delay is condoned, it would deprive the Plaintiff of the valuable right accrued over the years. 13. For the foregoing reasons, the Impugned Order dated 012. 1999 of the Principal District Munsif, Salem in I.A.No.900 of 1997 in O.S.No.429 of 1996 is confirmed and this Civil Revision Petition is dismissed. No costs.