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2007 DIGILAW 794 (MAD)

T. Sevathaan v. Janaki

2007-03-02

R.BANUMATHI

body2007
Judgment :- Aggrieved by the Order condoning the delay of 429 days in filing application under Or.9 R.13 CPC, the Petitioner/ Husband in the matrimonial proceedings HMOP No.22/1995 has preferred this revision. In condoning the delay, whether there was improper exercise of discretion, is the short point arising for consideration in this revision. 2. Brief facts are as follows: - 2. 1. Petitioner/Husband has filed application under Section 13(1) of Hindu Marriage Act for dissolving the marriage between the Petitioner and the Respondent in HMOP No.22/1995 on the file of Sub Court, Dharmapuri. Respondent was set exparte on 08.03.1996. Respondent has filed I.A.No. 21/1996 under Or.9 R.7 CPC to set aside the exparte Order. Later, she was set exparte on 12.03.2002. The Petitioner was examined and exparte Decree was passed on 18.03.2002. 2. 2. Stating that she was aged and infirm and suffering from illness, seeking condonation of delay of 429 days, Respondent/wife filed I.A.No.32/2005, under Sec.5 of the Limitation Act. Petitioner stoutly resisted that application to condone the delay. 3. Finding that reasons for delay has been satisfactorily explained and that Respondent/wife is to be given an opportunity for contesting the matrimonial Petition, application under Sec.5 was allowed on payment of cost of Rs.500/-, which is challenged in this revision. 3. Taking me through the dates and events, the learned Counsel for the Petitioner argued at length contending that there was calculated attempt on the part of the Respondent to delay the trial proceedings and she has purposely left the matter to be decreed exparte. It was further submitted that when wife has not come out with bonafide reasons, the Court below erred in condoning the delay. 4. On behalf of the Respondent, it was contended that the trial Court has condoned the delay having regard to the nature of the case and in consideration of the rival claims and being satisfied that the Respondent had shown sufficient cause for condoning the delay. 5. This is an unusual case where the husband and wife who are in the evening of their life, in their early sixties, are fighting out the matrimonial proceedings. The reason being obvious that the Petitioner/husband is said to have married another woman with whom he is alleged to have had intimacy even before the filing of the divorce Petition. 5. This is an unusual case where the husband and wife who are in the evening of their life, in their early sixties, are fighting out the matrimonial proceedings. The reason being obvious that the Petitioner/husband is said to have married another woman with whom he is alleged to have had intimacy even before the filing of the divorce Petition. It is also stated that the Petitioner who is a retired District Revenue Officer has a son through the second wife. 6. Respondent was already set exparte and she has filed I.A.No.21/96 under Or.9 R.7 CPC to set aside the exparte Officer passed against her. From 1996, HMOP No.22/1995 was repeatedly adjourned since I.A.No.21/1996 was pending. By perusal of the Notes Paper in the HMOP, it is seen that Or.9 R.7 CPC was posted on 12.03.2002 for counter and disposal. On 12.03.2002, again the matter was adjourned to 14.03.2002, as the last chance, for filing counter. Notes paper dated 14.03.2002, reads as follows :- "Counter not filed even after giving several opportunities. Respondent called absent. Set exparte, for evidence call on 18.03.2002. Signed." For not filing counter, Respondent was called absent; set exparte. It is not discernible from the records as to how Or.9 R.7 CPC Petition was disposed of; Suffice it to note that the Respondent had shown her bonafide by taking prompt steps to set aside the exparte Order passed against her by filing application under Or.9 R.7 CPC. 7. Minor son of Petitioner, born through second wife, has filed O.S.No.173/2003 for declaration and injunction in respect of the house property in which the Respondent is residing. At the same time, Respondent has filed I.A.No.32/ 2003, under Sec.5 of the Limitation Act to condone the delay of 429 days in filing the application to set aside the exparte Decree passed against her. In the supporting affidavit, Respondent has averred that she is aged and undergone eye operation in CMC Hospital. In her evidence, she has also stated that she is a sugar patient and taking treatment. To substantiate her version, Respondent has produced Exs.P-1 and P-2, evidencing treatment. Having regard to the age of the Respondent, trial Court has rightly found that the reason for delay has been satisfactorily explained. .8. In the case of N. Balakrishnan Vs. In her evidence, she has also stated that she is a sugar patient and taking treatment. To substantiate her version, Respondent has produced Exs.P-1 and P-2, evidencing treatment. Having regard to the age of the Respondent, trial Court has rightly found that the reason for delay has been satisfactorily explained. .8. In the case of N. Balakrishnan Vs. M. Krishnamurthy, 1998(7) SCC 123 , there was a delay of 883 days in filing application for setting aside exparte Decree for which application for condonation of delay was filed. The trial Court having found that sufficient cause was made out for condonation of delay, condoned the delay. But when the matter was taken to the High Court in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial Court was not justified in condoning the delay resulting into reversal of its Order. Holding that the High Court was not justified in interfering with Order passed by trial Court whereby delay in filing the application for setting aside exparte was condoned, the Supreme Court has held as follows: - ."8. The appellants conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. .9. 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 no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be condonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be condonable due to want of acceptable explanation whereas in certain other cases, delay of a 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. 10. ... The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The 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. The Supreme Court has further observed in paragraphs 12 and 13 thus :- "12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held 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 Vs. The Administrator Howrah Municipality, AIR 1972 SC 749 . 13. 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 turn down his plea and to shut the door against him. If the explanation does not smack of malafides 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 lean against acceptance of the explanation. If the explanation does not smack of malafides 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 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 loser and he too would have incurred quite a large litigation expenses". 9. It is thus well settled that the expression "sufficient cause" within the meaning of Sec.5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. When no negligence or inaction or want of bonafide is imputable to a party in a particular case normally delay is to be condoned. Whether explanation furnished would constitute "sufficient cause" or not will depend upon the facts of each case [see 2002(1) CTC 769 (Ram Nath Sao & others Vs. Gobardhan Sao & others), 2005(3) SCC 752 (State of Nagaland Vs.Lipok Ao & others)]. As noted earlier, in the supporting affidavit and in her evidence, Respondent has explained the reason for delay and no negligence or lack of bonafide could be attributed to Respondent. 10. Peculiar circumstances of this case and right of Respondent involved is also to be noted. The Petitioner is a retired Government Official. After the exparte Decree was passed on 18.03.2002, Petitioner is said to have married again, with whom he is said to have had intimacy even prior to filing of divorce Petition. Son through the second wife has also filed suit O.S.No.173/2001 for Declaration and Permanent Injunction in respect of the house property in which the Respondent is residing. Unless an opportunity is given to the Respondent to contest the matrimonial proceedings, she would be subjected to great hardship. 11. Having regard to the facts and circumstances of the case, and evidence of Respondent, in proper exercise of discretion, trial Court has condoned the delay in filing the application to set aside the exparte Decree. When the trial Court has exercised the discretion, revisional Court would not interfere unless the Order suffers from perversity or illegality. When there is no lack of bonafide on the part of the Respondent, I find no reason to interfere with the impugned Order. 12. When the trial Court has exercised the discretion, revisional Court would not interfere unless the Order suffers from perversity or illegality. When there is no lack of bonafide on the part of the Respondent, I find no reason to interfere with the impugned Order. 12. In the result, the Order dated 19.09.2006 made in I.A.No.32/2005 in HMOP No.22/1995 on the file of the Subordinate Judge, Dharmapuri is confirmed and this CRP is dismissed. No costs. Consequently M.P.No.1/2007 is also dismissed.