P. S. Sivagnanam v. The Executive Officer & Another
2009-07-16
M.VENUGOPAL
body2009
DigiLaw.ai
Judgment :- The revision petitioner/respondent/plaintiff has filed this present civil revision petition as against the order dated 19. 2006 in I.A.No.162 of 2006 in O.S.No.69 of 2004 passed by the learned District Munsif, Rasipuram. .2. The trial Court, while passing orders in I.A.No.162 of 2006 has among other things observed that the suit has been filed praying for compensation as against R.Pudupatti Town Panchayat and that the second defendant has retired from service and subsequent officer who has taken charge and after looking into the files has come to know about the details of the case and that the present application has been filed along with the written statement and the delay of 635 days in filing an application under Section 5 of the Limitation Act has occurred due to the aforesaid reason of the second defendant since been retired and this kind of delay is in the normal course of office procedure and therefore to provide an opportunity to the respondents/petitioners/defendants, the application has been allowed with a condition that the respondents/petitioners/defendants can pay a sum of Rs.500/- to the revision petitioner/respondent/plaintiff on or before 29. 2006 failing which the petition shall stands dismissed. 3. Dissatisfied with the orders passed by the trial Court in I.A.No.162 of 2006 in O.S.No.69/2004 dated 19. 2006, the learned counsel for the revision petitioner contends that the trial Court has not taken into account of the fact that the main suit has been filed in the year 1997 and till date, the respondents/petitioners /defendants have not filed their written statement and due to their failure to file the written statement for a long period of time, the suit has ultimately come to be decreed an exparte on 4. 2004 and even after passing of the said exparte decree, the respondents/petitioners/ defendants have not taken any steps for more than 1 ½ years and added further the respondents have not explained or mentioned the reasons as to why they have not taken any steps and also not explained as to the reasons for not initiating any steps even after receiving a notice dated 212.
2005 informing an exparte decree and as a matter of fact as per Section 5 of the Limitation Act each day delay has to be explained and in that view of the matter, the delay of 635 days has not been properly explained in the fact in I.A.No.162 of 2006 in O.S.No.69 of 2004 and therefore as a proper course, the trial Court should have dismissed the said I.A.No.162/2006 in O.S.No.69 of 2004 instead of allowing the same erroneously which has resulted in miscarriage of justice and therefore prays for allowing the revision petition to prevent aberration of justice. .4. It is to be noted that a perusal of the fact, the present Executive Officer filed an affidavit on behalf of the first respondent/first petitioner/first plaintiff shows that the second defendant Chandrasekaran has retired from service and that after the receipt of notice from the plaintiffs advocate on 212. 2005, he has looked into the files and more over that he has taken charge in the first respondent/first defendant only yesterday and he has been deputed from a different office and only at the time, he has taken charge and at the time of looking into the facts, he came to know about the facts of the present case and that on 5. 2004, their counsel have not appeared and therefore an exparte decree has been passed and therefore I.A.No.162/2006 to condone the delay of 635 days under Section 5 of the Limitation Act filed for the aforesaid reason and added further that the second respondent/second defendant has retired from service as early as in March 2005 etc., 5. In response, the revision petitioner/respondent/plaintiff in the counter filed before the trial Court as among other things stated that the main suit has been filed in the year 1997 and for a period of seven years, the written statement has been filed and that as per the relevant provisions of CPC, the written statement has to be filed with in a period of three months and for nearly seven years and apart from the above, even after an exparte decree has been passed as early as on 4.
2002, later even after the expiry of 3/4th year, the written statement has not been filed by the respondents and in short each and every days delay as per Section 5 of the Limitation Act has to be explained and the reasons assigned in the affidavit filed on behalf of the first respondent/first defendant to the effect that the second respondent/second defendant has retired in the year 2005 etc are not to be accepted and also the revision petitioner/respondent /plaintiff has issued a notice on 212. 2005 about the factum of exparte decree having been passed by the trial Court and since the application suffers from lack of bonafides, an application has to be dismissed with costs. 6. This Court has heard the learned counsel appearing for the revision petitioner and noticed her contentions. 7. It is not out of place to point out that in the affidavit in I.A.No.162/2006 filed on behalf of the first respondent/first defendant, it is categorically averred that the second defendant, Chandrasekaran has retired and further as a present Executive Officer who has taken charge only yesterday and at that time, when he looked into the file and he has come to know about the present case filed and later he has also been appraised of the factum of exparte decree passed in the main suit soon after the receipt of the revision petitioner/plaintiffs advocate notice dated 212. 2005 and therefore, the delay has occurred in preferring the present Interlocutory application to condone the delay of 635 days in filing an application under Order 9 Rule 13 CPC. 8. The words sufficient cause must be understood in a meaningful way to secure the ends of justice. Refusing to condone the delay may result in a meritorious matter being thrown out at the nascent stage and cause of justice being defeated. It is to be borne in mind, a Court of Law that in regard the application being filed for condonation of delay, a pedantic approach ought not to be adopted but a reasoned and a liberal approach will have to be adopted(by a Court of Law) in dealing with the same.
It is to be borne in mind, a Court of Law that in regard the application being filed for condonation of delay, a pedantic approach ought not to be adopted but a reasoned and a liberal approach will have to be adopted(by a Court of Law) in dealing with the same. By allowing the said application for condonation of delay, the length of delay is immaterial but when the delay is excused the highest that can happen that the respondents/petitioners /defendants are allowed to take part in the main proceedings and the main cause can be decided on merits after providing due opportunities to both the parties in the manner known to law. A party by resorting to delay runs a serious risk and there is no assumption that the delay has occurred on account of malafides or on the basis of negligence. As a matter of fact, the judiciary is respected not an account of its power to legalise injustice on technical grounds but it is capable of removing injustice and is expected to do so. 9. As far as the present case is concerned, the trial Court has exercised its discretion in passing a conditional order in I.A.No.162/06 in O.S.No.69 of 2004 directing the respondents/ petitioners/defendants to pay a sum of Rs.500/-on or before 29. 2006. The said exercise of discretion cannot be said to be an arbitrary or capricious or fanciful one in the present set of facts and circumstances of the case before us. Since there is no error in regard to the conditional order passed in I.A.No.162 of 2006 in O.S.No.69 of 2004, this Court is not inclined to allow the present revision petition and in that view of the matter, the civil revision petition is dismissed without costs. 10. In fine, the revision petition is dismissed without costs. The order passed by the trial Court in I.A.No.162 of 2006 in O.S.No.69 of 2004 is affirmed by this Court for the reasons assigned in this revision. Consequently, connected M.P.No.1 of 2007 is also dismissed.