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2009 DIGILAW 2560 (MAD)

M. Subramanian v. A. Periyasamy

2009-07-22

M.VENUGOPAL

body2009
Judgment :- The revision petitioner/petitioner/plaintiff has filed this Civil Revision Petition as against the order dated 30.08.2007 in I.A.No.32 of 2006 in O.S.No.259 of 1998, passed by the learned District Munsif, Perambalur in dismissing the application under Section 5 of the Limitation Act, praying to condone the delay of 631 days in restoring the main suit to file. 2. The trial Court, while passing orders in I.A.No.32 of 2006 has observed that "even after the respondent/defendants wife has filed O.S.No.566 of 2004 before the trial Court and even after receiving all the summons he has appeared before Court and even after coming to know of the subsequent case being filed and after coming to know that the case filed by him being dismissed, he has not taken any steps to restore the suit filed by him and in short the trial Court has not accepted the reasons ascribed by the revision petitioner in the affidavit and has resultantly dismissed the same without costs. 3. The learned counsel for the revision petitioner/plaintiff urges before this Court that the trial Court has committed an error in appreciating the ambit of Section 5 of the Limitation Act and as a matter of fact, the revision petitioner in his affidavit in I.A.No.32 of 2006, has explained the delay in projecting the said application and also that the trial Court ought to have seen when the revision petitioner has made arrangements to file an application to set aside the ex-parte order, the neighbors have persuaded the revision petitioner to drop further proceedings, since the matter has been settled between the parties and added further that the trial Court must have taken note of the fact that the respondent/defendant has filed a suit O.S.No.566 of 2004 on the file of the District Munsif Court, Perambalur and that the revision petitioner and his brothers have received summons in that case and therefore the revision petitioner has been forced to project the application to set aside the exparte order and law of limitation has been enacted to serve the interest of justice and not to defeat the same and in any event the trial Court should have taken a liberal view and not a pedantic approach and these aspects of the matter have not been looked in perspective cause injustice and therefore allowed the petition in the interest of the justice. 4. 4. Per contra, the learned counsel for the respondent/defendant submits that the village panchayat spoken to the revision petitioner has not been filed by the trial Court and even after the respondent/defendants wife has filed O.S.No.566 of 2004 on the file of trial Court the revision petitioner has not been diligent enough to take steps in regard to, set aside order passed in the trial Court in I.A.No.32 of 2006 and in short, an overall assessment of cumulative facts and circumstances of the case, the trial Court has come to a proper conclusion and has dismissed the application without costs and at the stage of revision, the conclusion arrived at by the trial Court need not be disturbed by this court. 5. The Court has paid its anxious considerations to the contentions put forward by learned counsel appearing for the parties and noticed the same. 6. In the affidavit in I.A.No.32 of 2006 filed by the revision petitioner before the trial Court, it is inter-alia averred that the main case has come up for final hearing on 012. 2003 and during the relevant period, he has been suffering from fever and therefore he has not in a position to attend the Court because of the said reason, the suit have been dismissed for default and when he has come and seen the advocate for taking record for restoration of the suit at that time the important persons of the village have asked him as to why he makes endeavor to conduct the case against and since the issues have been sought between the parties etc., and therefore he has not taken further steps in approaching the application in accordance with law and therefore there has been a delay of 631 days in projecting the application for condonation of delay. 7. In the counter filed by the respondent/defendant, it is categorically mentioned that the suit has been posted in the list on 012. 2003 and it is posted on the list on 12. 2003 and that it is utter false to state that as though the revision petitioner has been inflicted with high fever on the day he has been incapacitated from attending the Court which has resulted in the dismissal of the suit for default on 12. 2003 and it is posted on the list on 12. 2003 and that it is utter false to state that as though the revision petitioner has been inflicted with high fever on the day he has been incapacitated from attending the Court which has resulted in the dismissal of the suit for default on 12. 2003, and it is a cock and bull story smartly scripted by the revision petitioner and it is also an imagination of the revision petitioner that only on account of the undertaking allegedly given by the respondent, the petitioner has not given the life to the present suit by not taking any steps to restore the suit in time etc., and in fact no such mediation has ever taken place between the partes in respect of the suit property through village important persons and the suit in O.S.566 of 2004 has nothing to do with the subject matter of present suit O.S.259 of 1998 in I.A.No.32 of 2006 and in any event the reasons assigned in the affidavit are not true, and no"sufficient cause" has been mentioned for allowing the Section 5 application. 8. It is to be borne in mind that the words "sufficient cause" an elastic one occurring in Section 5 of Limitation Act will have to be given a purposeful and meaningful interpretation in the manner known to law. Generally speaking, a party does not stand to benefit by preferring an application for condonation of delay belatedly. By refusing to condone delay, there is every possibility that a meritorious matter can be thrown at the threshold of the case and thereby the cause of justice being defeated. No wonder, the length of delay is immaterial. If the application condonation of delay is allowed by a Court of law, the highest thing that will happen, is a party will be allowed to enter into an arena of main proceedings and the case can be decided on merits, of course the court providing due opportunities to parties. Suffice it point out that the substantial justice will have to be delivered to the litigants overriding technicalities. The judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing the same and it is expected to do so. Suffice it point out that the substantial justice will have to be delivered to the litigants overriding technicalities. The judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing the same and it is expected to do so. 9.This Court by taking a liberal view of the matter in a pragmatic manner and also with a view to provide an opportunity to the revision petitioner for disposing the matter on merits is inclined to allow the Civil Revision Petition, of course with a condition that a revision petitioner shall pay a sum of Rs.2500/-(Rupees two thousand five hundred only) as costs directly to the respondent/defendant counsel, on or before 03.08.2009 failing which the revision petition shall stand dismissed automatically without any further reference. 10. In fine, The Civil Revision Petition is allowed on condition that the revision petitioner shall pay a sum of Rs.2500/- (Rupees two thousand five hundred only) as costs directly to the learned counsel for the respondent/defendant on or before 03.08.2009 failing which the revision petition shall stand dismissed without any further reference. However, considering the facts and circumstances of the case, the parties are directed to pay their costs in this revision petition.