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2008 DIGILAW 2336 (MAD)

R. S. Sivaswami v. S. Soundrammal

2008-07-09

M.CHOCKALINGAM, R.SUBBIAH

body2008
Judgment :- M. Chockalingam, J. 1. This appeal challenges the order of the learned single Judge, allowing an application, whereby the delay of four days in filing an affidavit filed in support of the caveat filed in O.P.No.488 of 2002, was condoned. 2. Admittedly, the appellant herein, as petitioner, filed O.P.No.488 of 2002 seeking grant of probate of a Will executed by his mother. The respondent herein was served with notice on 13.08.2002 by the Court, which was followed by filing of vakalat of 19.08.2002. The certified copy of the Will was obtained from the Court on 112. 2002. Thereafter, a caveat was filed on 06.02.2003, which was returned by the Court, since the affidavit was not filed within 8 days as contemplated under Order 25 Rule 52 of Original Side rules. The same was also represented on 18.02.2003 along with the affidavit. But the same was returned stating that it was not filed within time. Under these circumstances, the said application was filed seeking condonation of delay. The said application was countered by the appellant herein stating that there is no question of condonation of delay, since the affidavit should be filed within 8 days, as envisaged in the said Rules and the application itself is not maintainable and hence, it was to be dismissed. 3. On enquiry, the learned single Judge has allowed the application by condoning the delay. Hence, the present appeal. 4. The only question that would arise before the court is whether the delay in filing the affidavit as was done by the respondent herein could be condoned? 5. The only contention put forward by the learned counsel for the appellant is that the affidavit filed in support of the caveat should be filed within a period of 8 days, as mandated under Order 25 Rule 52 of Original Side Rules and the said period can neither be extended nor any condonation of delay in that regard could be ordered and hence, the order under challenge is against the said mandatory provision and hence it has got to be set aside. 6. In answer to the above, it was contended by the learned counsel for the respondent that under Order 1 Rule 7 of Original Side Rules, the Court has got power to enlarge the time as stipulated by the Rules or fixed by any order for doing any act. 6. In answer to the above, it was contended by the learned counsel for the respondent that under Order 1 Rule 7 of Original Side Rules, the Court has got power to enlarge the time as stipulated by the Rules or fixed by any order for doing any act. It is true, in the instant case, when the affidavit was filed, it was out of time, but the delay was only four days and thus, considering the powers vested upon the Court under Order 1 Rule 7 of the Original Side Rules, the Court in exercise of its powers has rightly condoned the delay and hence, the appeal has got to be dismissed. Learned counsel for the respondent, in support of his contention, relied on the decision of the Division Bench of this Court reported in 2002-4-L.W.681 (CT.RAMASAMY ..vs.. SP.KAVERI ACHI). 7. The court has paid its anxious consideration on the submissions made by the learned counsel on either side. .8. It is not in controversy that O.P.No.488 of 2002, seeking probate of the Will executed by his mother was filed by the appellant/petitioner. On service of notice, the respondent entered appearance. A certified copy of the Will was received on 112. 2002 and a caveat was filed on 06.02.2003. The same was returned, since the affidavit was not filed within 8 days as envisaged under Order 25 Rule 52 of the Original Side Rules. The same was also represented, but returned with the said reasons. The instant application was filed to condone the said delay of 4 days. On contest, the application has been allowed. 9. Now, the only question that would arise for consideration, as pointed out earlier, is whether this Court in exercise of its power could extend the period of 8 days as found thereon. Exactly, the same situation arose in a case which is reported in 2002-4-L.W.681, as referred to above, where the affidavit was filed along with the caveat after a period of 6 months and this court, in exercise of powers under Section 148-A of C.P.C., even though there was a delay of 229 days in filing the affidavit, thought it fit to condone the delay, where this Court has made an observation as follows: "18. When the parties have come to the court for their redressal, it is always open to the court in order to render full justice in accordance with the good conscience to pass suitable orders. 19. It may be worth to refer a recent judgment of the Apex Court in Ramesh Wadhawan v. Jagdamba Industrial Corpn. (2002) 5 SCC 440 ) where the learned Judges have held as follows: "A statute can never be exhaustive, and therefore, Raghubar Dayal, J. speaking for himself and Wanchoo and Das Gupta, JJ, observed in Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal ( AIR 1962 SC 527 ) at page 532, para 18, "that a legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them". Sometimes when a difficult situation arises it may demand such directions being made as would pragmatically meet the needs of the situation and resort can be had to the inherent powers of the court, if need be. Krishna Iyer, J. in Newabganj Sugar Mills Co. Ltd. V. Union of India (1976) 1 SCC 120 ) (held at page 123, para 6) "the difficulty we face here cannot force us to abandon the inherent powers of the Court to do", and he quoted Jim R. Carrigan to say: "The inherent power has its roots in necessity and its breadth is coextensive with the necessity." H.R. Khanna, J. observed in Jaipur Mineral Development Syndicate v. CIT (1977) I SCC 508)(page 511, para 5) "The Courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice." Jurisdiction to pass procedural orders though not specifically contemplated by statute can be spelled out from what was said by Hidayatullah, J. (as he then was) in Mahanth Ram Das v. Ganga Das ( AIR 1961 SC 882 ) when orders are "in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay" the courts are not powerless to meet a situation for "such orders are not like the law of the Medes and the Persians" (p.883, para 5)"." 10. From a reading of the above would clearly indicate that though the affidavit was filed out of time and there was a delay of 4 days, the delay has got to be condoned and the interest of justice would also require so. The learned Single Judge felt no impediment in allowing the application and condoning the delay. This Court is unable to see any infirmity or illegality in the order of the learned Single Judge. Accordingly, this appeal fails and the same is dismissed. No costs. Consequently, the connected CMP and VCMP are also closed. 11. Now, it is brought to the notice of the Court that the first respondent in the O.P. is aged 92 years and the attesting witnesses are also the senior citizens and hence the original petition could be disposed of early. Under these circumstances, the learned Single Judge is required to give due consideration to the above situation and dispose of the original petition as expeditiously as possible.