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2008 DIGILAW 963 (MAD)

G. Natarajan v. G. Subramnian & Others

2008-03-18

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- The order passed in I.A.No.1330 of 2004 in ASCFR.No.16723 of 2004 on the file of the Principal District Judge, Coimbatore, is under challenge in this revision. I.A.No.1330 of 2004 was filed by the plaintiff in O.S.No.743 of 1976 / appellant in unnumbered ASCFR.No.16723 of 2004 under section 5 of the Limitation Act to condone the delay of 245 days in preferring the appeal. The suit is for partition. The trial Court has decreed the suit and a preliminary decree for partition was passed. Thereafter, the plaintiff has not filed any petition for passing final decree. I.A.No.1087 of 2001 for passing final decree was filed by the second defendant in O.S.No.743 of 1976, in which the plaintiff was shown as the first respondent. He participated in the final decree proceedings and a final decree has been passed on 17.03.2003. 2. The grievance of the revision petitioner is that in the final decree proceedings, he was not awarded due share value in respect of his share. Aggrieved by the decree in the final decree proceedings in I.A.No.1087 of 2001 in O.S.No.743 of 1976, the plaintiff in O.S.No.743 of 1976 had preferred an appeal wherein there was a delay of 245 days in preferring the appeal. While dismissing I.A.No.1330 of 2004 the petition filed under Section 5 of the Limitation Act to condone the delay of 245 days in preferring the appeal, the learned Principal District judge Coimbatore, had observed that there is no acceptable reasoning given in the affidavit filed by the petitioner in I.A.No.1330 of 2004 to condone the delay of 245 days in preferring the appeal and accordingly dismissed the petition. 3. A perusal of the affidavit to the petition in I.A.No.1330 of 2004 in ASCFR.No.16723 of 2004, will go to show that the petitioner would state that after passing of the final decree dated 13. 2003 he had filed a petition to set aside the exparte final decree (bit it was not so), but the same was returned as not maintainable and immediately he preferred CMA against the final decree and the same was also returned raising jurisdiction point. Thereafter, he had filed CFR.No.48064 of 2003 to reopen the final decree, which was dismissed on 9. 2004 directing him to prefer a regular appeal. Thereafter, he had filed CFR.No.48064 of 2003 to reopen the final decree, which was dismissed on 9. 2004 directing him to prefer a regular appeal. Except the above said averments, there is no acceptable reasoning given in the affidavit to I.A.No.1330 of 2004 for condoning the delay of 245 days. 4. The learned counsel for the revision petitioner relying on AIR 1998 SC 3222 (N.Balakrishnan Vs. M.Krishnamurthy), would contend that even the delay of 883 days in setting aside the exparte decree was condoned and that the same principle may be applied to the present case also. But a reading of the said judgment will go to show that the defendant had engaged an advocate in the said case for making the motion to set the exparte decree aside but the advocate failed to inform him that the application was dismissed for default on 12. 1993. When he got summons from the execution side, he approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree-holder since there was no stay against such execution proceedings. On the advice of the said advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocates fees and other incidental expenses. But the fact is that the said advocate has not done anything in the court even thereafter. Afterwards execution warrant was issued by the Court and he became suspicious of the conduct of his advocate and hence rushed to the Court from where he got the disquieting information that his application to set aside the exparte stood dismissed for default and that nothing was done in the Court thereafter on his behalf. He was also further informed that his advocate had already left the profession and joined as a legal assistant in a private company. Only under such circumstances, he filed the petition under Section 5 of the Limiation Act to condone the delay of 883 days to set aside the exparte decree. While allowing his application, which was dismissed by this Court on the ground that the delay was not properly explained, the Honourable Apex Court has observed as follows:- "It is axiomatic that condonation of delay is a matter of discretion of the Court. While allowing his application, which was dismissed by this Court on the ground that the delay was not properly explained, the Honourable Apex Court has observed as follows:- "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 uncondonable due to want of acceptable explanation whereas in certain other cases delay of 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 the 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. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. 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. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that the period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time." The reason for condoning the delay of 883 days by the Honourable Apex Court is that the petitioner therein was in any way responsible for the delay. The delay was entirely due to the counsel of the petitioner, who was engaged to defend the case before the trial Court, had failed to file the petition to set aside the exparte order in time. It is on record that the counsel who was engaged by the petitioner even after receiving his fees and also getting his signature in some of the papers, had failed to file necessary application to set aside the exparte decree in time. Only from the notice received in the execution warrant, the petitioner came to know about the failure on the part of his advocate to represent his case before the trial Court by way of a petition to set aside the exparte decree in time. So under such circumstances, the reasoning stated by the petitioner was accepted by the Honourable Apex Court in condoning the delay of 883 days in preferring a petition to set aside the exparte decree. 5. Only under similar circumstances, the delay in filing the certified copy of the order was condoned by the Honourable Apex Court in AIR 1969 SC 575 (Shakuntala Devi Jain Vs. Kuntal Kumari and others), following the dictum in 1890 ILR Mad 268 (Krishna Vs. 5. Only under similar circumstances, the delay in filing the certified copy of the order was condoned by the Honourable Apex Court in AIR 1969 SC 575 (Shakuntala Devi Jain Vs. Kuntal Kumari and others), following the dictum in 1890 ILR Mad 268 (Krishna Vs. Chathappan), as follows:- "Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay in filing an appeal." The petitioner / appellant therein made repeated attempts to obtain a certified copy of the order. She is a pardanashin lady and her affairs were managed by her husband. She applied for a certified copy of the order on 3. 1967 in order to prefer an appeal. The application bore the serial number 17542. The copying department supplied to her a copy of another order pased by the Court on the same date dismissing Sumat Prasads objections to the appellants application for execution. The mistake is solely attributable to the negligence of the copying department. In her affidavit the appellant stated that the application for a copy dated 12. 1967 was in respect of the order dismissing Sumat Prasads objections. Having got a certified copy of the order dismissing Sumat Prasads objections she believed that she had applied for a copy of that order. The delay was not due to the negligence of the petitioner, but only due to the copying section which delivered the wrong copy to her, which resulted in the delay in preferring the appeal. 6. The decision in AIR 1991 Delhi 194 (Bank of India Vs. M/s.Mehta Brothers and others), relied on by the learned counsel for the revision petitioner, is also not applicable to the present facts of the case because the delay in preferring the petition to set aside the exparte decree was attributed to the conduct of the counsel, who conducted the case for the petitioner. 7. The other decisions in 2002(1) MLJ 344 (Byilvan @ Ramasamy Vs. Mathiazhagan), 2007(2) MLJ 472 (Secretary, Madras Race Club, Chennai, Vs. 7. The other decisions in 2002(1) MLJ 344 (Byilvan @ Ramasamy Vs. Mathiazhagan), 2007(2) MLJ 472 (Secretary, Madras Race Club, Chennai, Vs. Saraswathy Kailasam and others), 2005 (3) MLJ 425 (Periasamy and others Vs. Allimuthu and others) and 2003(3) MLJ 369 (K.Thirumurthy and another Vs. Muthammal and others), relied on by the learned counsel for the revision petitioner, will also not be applicable to the present facts of the case. In those cases, the petitioner had given sufficient reasoning for condoning the delay, which was accepted by this Court. 8. The affidavit in I.A.No.1330 of 2004 does not reveal any acceptable reasoning for condoning the delay of 245 days in preferring the appeal against the decree and judgment in O.S.No.743 of 1976 on the file of the Court of Subordinate Judge, Coimbatore. Under such circumstances, I do not find any reason to interfere with the findings of the learned Principal Subordinate Judge, Coimbatore in I.A.No.1330 of 2004 in ASCFR.No.16723 of 2004 on the file of the Principal District Judge, Coimbatore. 9. In fine, the revision is dismissed confirming the order in I.A.No.1330 of 2004 in ASCFR.No.16723 of 2004 on the file of the Principal District Judge, Coimbatore. No costs. Connected Miscellaneous petition is closed.