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2009 DIGILAW 2532 (MAD)

S. v. Sathish Chandran & Others VS Subramanian

2009-07-21

M.VENUGOPAL

body2009
Judgment :- The revision petitioners/defendants D1 to D5 have projected this Civil Revision Petition as against the order dated 18.09.2007 in I.A.16 of 2007 in O.S.No.2 of 2005, passed by the learned Additional District and Sessions Judge, Fast Track Court No. III, Dharapuram in dismissing the application filed by the petitioners under Section 5 of the Limitations Act praying to condone the delay of 70 days in filing an application to set aside the ex-parte decree dated 09.03.2007. .2. The trial Court while passing orders in I.A. No.16 of 2007 has among other things observed that "the alleged communication gap between himself and his counsel cannot be countenanced neither as a valid ground nor as an acceptable ground and the reasons cited by the petitioner/5th defendant for the delay caused is not at all sufficient in any manner. If we consider these untenable reasons on the backdrop and background of previous gross negligent conduct of the petitioner the inescapable conclusion would be that the delay cannot be condoned in anyway, etc." and ultimately dismissed the application with costs. 3. According to the learned counsel for the revision petitioners, the trial Court has committed an error in not allowing the I.A. No.16 of 2007 in the interest of justice and more over the trial Court should have accepted the genuine reason ascribed by the revision petitioners in filing I.A. No. 16 of 2007, the application to set aside the ex-parte order and should have allowed the application and as a matter of fact, the petitioners do have a valuable right in the subject matter of suit property and also that the "sufficient cost" term within the meaning of Section 5 of the Limitations Act will have to be interpreted liberally and this has not been done by the trial Court in the instant case and therefore, this has resulted in the miscarriage of justice enabling this court in interfering in the revision and resultantly to allow the same. 4. 4. Per contra, the learned counsel for the respondent/plaintiff condones that three times an ex-parte decree stands passed previously and that the revision petitioners are not diligent in prosecuting the matter and their main aim is to protract the matter endlessly without seeing the end of the result of the case and according to him the order passed by the trial Court in dismissing the I.A. No.16 of 2007 does not require any interference in hands of the court sitting in revision. 5. This Court has heard the arguments of learned counsel appearing for the parties and noticed their contentions. .6. In the affidavit filed by the 5th petitioner/5th defendant in I.A.No.16 of 2007, it is inter-alia averred that he has gone along with his sisters husband in connection with the laters business and he has not informed this to his counsel and therefore his counsel has not been in a position to write a letter to him and after returning from outstation he has seen the letter in his house and later when he has met his counsel he has come to know that an ex-parte decree has been passed in the suit on 09.03.2007 and because of the aforesaid reason he has not been in a position to file an application to set aside the ex-parte decree in time and since he has not been negligent or otherwise he has not appeared on the date of hearing and therefore he has prayed for allowing the application for condonation of delay of 70 days. 7. 7. In the counter filed by the respondent/plaintiff, it is among other things mentioned that earlier an ex-parte decree has been passed on 09.03.2006 on the petitioners counsel reporting no instructions and later I.A.No.1426 of 2006 has been filed to set aside the ex-parte decree passed on 09.03.2006 in the suit and that the said application has been allowed and resultantly, the suit has been taken on file and again the suit has been posted for final enquiry on 05.06.2006 and again the petitioners have not appeared on 05.06.2006 and the matter has been posted to 09.06.2006 and finally on 09.06.2006 an ex-parte decree has been passed and for the third time I.A.No.16 of 2007 has been filed praying to set aside the ex-parte decree dated 09.03.2007 and before that, the suit has been posted for final hearing on 14.02.2007 and the P.W.1 has been examined and the matter has been posted for cross examination of P.W.1 to various dates like 14.02.2007, 16.02.2007, 21.02.2007, 23.02.2007, 09.03.2007 and therefore prays for dismissal of the said application. 8. It is true that the term "sufficient cost" as per Section 5 of the Limitations Act will have to be given a purposeful and meaningful interpretation by a Court of Law by adopting a liberal view and not adopting a pedantic approach. But in the instant case on hand it transpires that already three times an ex-parte decree has been passed by the trial Court in the suit and the petitioners have filed I.A.s after I.A. to set aside the ex-parte decree. However, lastly an I.A.No.16 of 2007 has been filed praying to condone the delay of 70 days in setting aside the ex-parte decree in the main suit dated 09.03.2007. It is reported before this court on behalf of the petitioners that the main suit is itself a suit for specific performance and the petitioners do have a valuable right in this case and therefore in the interest of justice the Civil Revision Petition has to be allowed. .9. Refusing to condone the delay will result in a meritorious matter being thrown at the nascent stage and the cause of justice being defeated. By resorting to delay, the litigant runs a serious risk. .9. Refusing to condone the delay will result in a meritorious matter being thrown at the nascent stage and the cause of justice being defeated. By resorting to delay, the litigant runs a serious risk. Only thing the court has to see is whether the petitioners have exhibited their culpable negligence or they have shown their malafide intentions in allowing the matter to go for default or allowing the Court to pass an ex-parte decree in the matter when sufficient opportunities have been provided to them. 10. There cannot be any second opinion in regard to the fact that if the litigants are allowed to take part in the main proceedings after setting aside the condone delay application, the maximum thing that can happen is that their cause will be decided on merits. A Court of law is supposed to deliver substantial justice to the parties overriding technicalities. No wonder the judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing the same. 11. On a careful consideration the respective contentions and also taking note of the cumulative facts and circumstances of the case in an integral fashion, this court by adopting a liberal view opines that this Civil Revision Petition can be allowed on payment of cost of Rs.2,000/- (Rupees Two Thousand only) as penalty to be paid by the revision petitioners directly to the respondent/ plaintiffs counsel within two weeks failing which the petition will stand dismissed automatically without any further reference. Consequently, connected miscellaneous petition is closed. Having record to the facts and circumstances of the case, the parties are directed to bear the costs. 12. In fine, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A. No.16 of 2007 is set aside. Since the suit is at Part Heard stage, where P.W.1 is to be cross examined the petitioners are directed to take active and diligent part in the trial Court proceedings and they have to cross examine P.W.1 and in this regard the trial Court shall provide opportunities to the petitioners and in any event, the trial Court is directed to dispose of the main case within a period of four months from the date of receipt of copy of this order and report compliance to this Court without fail.