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2009 DIGILAW 2483 (MAD)

Perumal Udaiyar v. Muniammal

2009-07-20

M.VENUGOPAL

body2009
Judgment The revision petitioner/respondent/plaintiff has filed this present civil revision petition as against the order dated 16. 2006 in I.A.No.1226 of 2005 in O.S.No.225 of 1998 passed by the learned Principal District Munsif, Tindivanam. .2. The trial Court, while passing orders in I.A.No.1226 of 2005 has among other things observed that the respondent/second defendant has averred in the affidavit in I.A.No.1226 of 2005 that she has been affected paralytic attack and that she has taken treatment at Chennai and the reasons assigned by him are acceptable one and since a liberty is to be provided to the respondent/second defendant, the petition is allowed .without costs. 3. According to the learned counsel for the revision petitioner/plaintiff, the order passed by the trial Court is an erroneous one and the trial Court has not take note of the fact that no evidence has been put forth by the respondent/second defendant to establish the alleged illness which prevented her from appearing before the trial Court on the relevant date and also thereafter the entire period of 2063 days and also that the trial Court has disbelieved the casual averments described in the affidavit in regard to the condonation of delay to the tune of more than 2063 days and inasmuch as the delay has not been properly explained by the respondent/second defendant and the order passed by the trial Court in allowing I.A.No.1226 of 2005 needs to be set aside in the interests of justice and the revision petition has to be allowed. 4. However, the learned counsel for respondent/second defendant submits that the respondent/second defendant has been looking after her case as well as that of the first defendant, she has been suffering from paralytic attack and has taken treatment at Chennai and because of her ill health, she has not filed an application in time and since she has recovered from her illness immediately the said interlocutory application has been filed and that the trial Court has exercised its discretion in a proper way and therefore allowed the application rightly and the same is in accordance with law which need not be interfered by this Court sitting in revision. 5. This Court has heard the learned counsel appearing for the revision petitioner and noticed her contentions. .6. 5. This Court has heard the learned counsel appearing for the revision petitioner and noticed her contentions. .6. It is not in dispute that the revision petitioner/plaintiff has filed main suit in O.S.No.225 of 1998 praying for the relief of declaration of plaintiffs right in the suit property and for permanent injunction restraining the defendants from in any way interfering with the peaceful enjoyment and possession of the plaintiff in the suit property. Admittedly, an exparte decree has been passed o on 212. 1999. No doubt, the respondent/second defendant has not produced any documentary evidence to show that she has been suffering from paralytic attack and that she has taken treatment at Chennai except Ipsi Dixi of the respondent/second defendant made in the affidavit in I.A.No.1226 of 2005, there is no acceptable proof in regard to the second defendant suffering from paralytic .attack. Further, the trial Court has allowed the said application with a view to provide an opportunity to the respondent/second defendant to contest the main case. 7. It is to be noted that substantial justice will have to be delivered to the parties overriding the technicalities. By refusing to condone the delay, a good case may be thrown out at the nascent stage and the cause of justice being defeated. By allowing an application filed under Section 5 of the Limitation Act in regard to the condonation of delay, the maximum that can happen is a party is allowed to get into an arena of main legal proceedings and contest the case on merits. It is true that the term sufficient cause occurring in Section 5 of the Limitation Act will have to be viewed liberally and a pedantic approach shall not be adopted by a Court of Law. To put it differently, a meaningful and purposeful approach will have to be adopted by a Court of Law while dealing with an application under Section 5 of the Limitation Act. Indeed, the Court has to see whether the party has been negligent in regard to the conduct of the main case or the averment that she makes in the affidavit is suffering from lack of bonafides. One cannot ignore an important fact that Judiciary is respected one not on account of its power to legalise injustice but it is capable of removing the same and is expected to do so. 8. One cannot ignore an important fact that Judiciary is respected one not on account of its power to legalise injustice but it is capable of removing the same and is expected to do so. 8. On a careful consideration of the respective contentions notwithstanding the fact that the respondent/second defendant has not produced any documentary evidence in regard to the paralytic attack treatment that she has undergone at Chennai, this Court by taking a liberal view is of the view that the reason assigned by the trial Court in allowing the interlocutory application by providing an opportunity to conduct the case does not suffer from any patent or illegality or material irregularity and the same is also not a capricious or arbitrary one but per contra, the same is valid and prudent one in the interest of justice, and the same does not require any interference in the hands of this Court. .9. However, this Court is of the considered view that while allowing the said interlocutory application, the trial Court should have imposed a cost as penalty for the delay caused by the respondent/second defendant. But this has not been resorted to by the Trial Court. Hence this Court is of the view to prevent an aberration of justice that the respondent/second defendant should pay a cost of Rs.2000/-(Rupees two thousand .only) to the learned counsel for the revision petitioner to be paid directly on or before 8. 2009 failing which the civil revision petition shall stand automatically dismissed without any further reference. 10. In the result, this revision petition is dismissed and the order of the trial Court is modified to the extent that the respondent/second defendant is directed to pay a sum of Rs.2000/-(Rupees Two Thousand Only) to the learned counsel for the revision petitioner/plaintiff on or before 8. 2009 failing which it is made clear that the revision petition shall stand automatically allowed. Consequently, connected M.P.No.1 of 2008 is closed.