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2009 DIGILAW 2900 (MAD)

K. v. Gopalasamy VS K. C. Chandrasekaran

2009-08-04

M.VENUGOPAL

body2009
Judgment :- The civil revision petitioner/petitioner/defendant has filed this revision as against the order dated 12. 2008 in I.A.No.677 of 2007 in O.S.No.56 of 2007 passed by the learned Principal Judge, Coimbatore in dismissing the application filed by the petitioner under Section 5 of the Limitation Act. 2. The trial Court, while passing orders in I.A.No.677 of 2007, has come to the conclusion that the reasons assigned by the revision petitioner/defendant in projecting the application with a delay are not fair and acceptable and resultantly, dismissed the application without costs. 3. The learned counsel for the revision petitioner/ defendant submits that the trial Court has failed to see that the suit summons has not been served on the revision petitioner and that he has come to know about the exparte decree only when the officers from the Mettupalayam Municipality vested his property and when an exparte decree has been passed at that time the petitioner has been suffering from severe heart problem and in short, the non appearance of the revision petitioner has been due to sufficient and bona fide reason and the same is not willful or deliberate and also that the trial Court has committed an error in holding that the petitioner has not established the genuineness of the medical certificate and if the exparte decree is not set aside then it will cause serious hardship and loss to the petitioner depriving his right of defence totally and looking at from any angle the order of the trial Court in I.A.No.677 of 2007 is an untenable one and therefore, prays for allowing the civil revision petition to advance the cause of justice. 4. The learned counsel for the respondent/plaintiff submits that the petitioner has not assigned sufficient cause in his affidavit in I.A.No.677 of 2007 praying to condone the delay of 88 days in filing the application to set aside the exparte decree dated 23. 2007 and that the trial Court has ultimately come to the right conclusion that the reasons ascribed by the petitioner in the affidavit are not a fair and acceptable one and has dismissed the application without costs and the same need not be interfered by this Court in revision. 5. In the affidavit in I.A.No.677 of 2007 in O.S.No.56 of 2007 filed by the petitioner/defendant, it is among other things averred that when the case has been posted on 23. 5. In the affidavit in I.A.No.677 of 2007 in O.S.No.56 of 2007 filed by the petitioner/defendant, it is among other things averred that when the case has been posted on 23. 2007 for his appearance he has remained absent and therefore, he has been set exparte and that the summons has not been served on him and therefore, he has been called absent and set exparte and further that he has been suffering from severe heart problem and has been under treatment even prior to 23. 2007 wherein an exparte decree has been passed against him and also that he has not been in a position to move out of his house, and even now he has been under severe medical treatment and moreover, he has been advised by the doctor to take bed rest for the past 3 ½ months and is bedridden and added further, he is in possession of the suit property and on 27. 2007 when some officials from the Mettupalayam Municipality has come and inspected the suit property, he has made an enquiry and the officials informed that the respondent Chandrasekaran has applied for name transfer and they informed him of the suit proceedings and that the exparte decree has been passed against him and later he has contacted his counsel and has verified that he has been set exparte on 23. 2007 and further he has got a valid defence in the suit and therefore, he may be allowed to contest the suit and if the exparte decree is allowed to stand, he shall suffer an irreparable loss and injury. 6. In the counter filed by the respondent/plaintiff, it is mentioned that it is false to state that the petitioner has been suffering from severe heart problem and he has been taking treatment even prior to 23. 2007 and it is also false to state that he has not been in a position to move from his bed and he has been advised to take bed rest for 3 ½ months and in fact, the petitioner wantonly has failed to appear before the Court on the day of hearing and this will prove his negligence and the petitioner has been very active and he has been attending to his business activities, bank transactions etc. and therefore, it is false to state that he has not been able to move from his bed and there is no necessity for the officials of the Municipality to inspect the suit property and that he has not produced the doctor certificate to prove his illness and furthermore, he has not furnished the name of officials of the Mettupalayam Municipality who has provided him information with regard to the above proceedings and after receiving the notice, the petitioner purposely has avoided to appear before the Court and allowed the Court to pass an exparte decree and now has come forward with a frivolous application to drag on the proceedings. 7. In support of the contention that the term sufficient cause must be given a liberal interpretation governing the rights of parties, the learned counsel for the revision petitioner cites the decision of Honble Supreme Court in Ram Nath Sao Alias Ram Nath Sahu and others V. Gobardhan Sao and others (2002) 3 SCC 195 and 196 wherein it is held that expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, in action or lack of bona fides cannot be imputed to the party concerned and whether or not sufficient cause has been furnished can be decided only on the facts of a particular case and straitjacket formula not possible and the acceptance of explanation given should be the rule and refusal, the exception and however, at the same time, Court must bear in mind that delay would have caused a valuable right to accrue to the other party and that such right should not be defeated by condonation of delay in a routine manner. 8. Per contra, the learned counsel for the respondent relies on the decision of this Court in Kaliammal and others V. Sundharammal and another (2007) 1 MLJ 577 wherein it is among other things held that delay whether long or short not the criterion, acceptable explanation therefor the only criterion and if delay condoned at execution stage, it would unsettle various proceedings of the Court and when there is deliberate delay, proceedings cannot be opened after several years much to the prejudice of respondents. He also cites the decision of Honble Supreme Court in D.Gopinathan Pillai V. State of Kerala and another (2007) 2 SCC 322 at page 323 wherein it is observed that delay cannot be condoned merely on sympathetic ground, when mandatory provision not complied with and delay not properly, satisfactorily and convincingly explained and the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. 9. Continuing further, the learned counsel for the respondent brings it to the notice of this Court to the decision in Sivakumar and another V. R.Sengodan 2007 (4) CTC 506 and 507 wherein it is held that liberal view does not mean to consider in equity and that the Court must take a liberal view but at the same time, as far as condonation of delay is concerned, Court should not do so on exercising equity and if it is done, it would be nothing but extension of limitation which is not available to a party under an enactment and in the absence of sufficient and convincing reasons Court should not excuse the delay. 10. He also places reliance on the decision of Honble Supreme Court in Pundlik Jalam Patil (D) by LRs V. Exe.Eng.Jalgaon Medium Project and another 2008 (5) CTC 663 wherein the Honble Supreme Court has held that where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and order condoning delay is vulnerable and susceptible for correction by superior Court. He also seeks in aid to the decision of this Court in Selvaraj and another V. Ramachandran and others 2007-3-L.W. 146 wherein it is held as follows: "... the applicant 3rd Defendant, in his petition viz. I.A.No.3186/2004 has not given any particulars as to when he was affected by jaundice, the duration of his treatment for the said disease and under whom he was treated etc. In this case not even the medical certificate was produced to show that the 3rd Defendant was suffering from jaundice during the relevant period of time. Each and every days delay is to be explained by the 3rd Defendant-Particularly in this case, the delay is 1654 days-Under such circumstances, court is of the view that the order passed by Lower Court is liable to be set aside-CRP allowed." 11. Each and every days delay is to be explained by the 3rd Defendant-Particularly in this case, the delay is 1654 days-Under such circumstances, court is of the view that the order passed by Lower Court is liable to be set aside-CRP allowed." 11. He also invites the attention of this Court to the decision in G.Jayaraman V. Devarajan 2007 (2) CTC 643 wherein it is inter alia held that ... the discretion must not be exercised in any arbitrary or vague or fanciful manner; but must be exercised like any other judicial discretion with vigilance and circumspection and delay cannot be condoned as a matter of judicial generosity and where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay and further, the right accrued to other side ought to be kept in view while considering plea relating to affording opportunity to advance substantial justice. 12. At this juncture, this Court recalls the decision of Honble Supreme Court in Collector Land Acquisition Anantnag and another V. Mst.Katiji and others 1987 1 LLJ at page 500 wherein it is held and observed as follows: "Section 51 if the Limitation Act enables the courts to do substantial justice disposing of the matters on merits. The expression "sufficient cause" is elastic enough to apply the law in a meaningful manner to subserve the ends of justice. A liberal approach should be adopted since it is realised. (a)That ordinarily a litigant does not stand to benefit by lodging an appeal late, (b) refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when the delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties, (c) "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours day, every seconds delay? The doctrine must be applied in a natural common sense pragmatic manner. (d) when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (e) There is no presumption that delay is occasioned deliberately or on account of malafides. (d) when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (e) There is no presumption that delay is occasioned deliberately or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (f) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 13. The Court of law has to employ the term sufficient cause in a purposeful way which subserves the ends of justice viz., that being the life -purpose for the existence of the institution of a course in the considered opinion of this Court. A justice oriented approach with a view to do evenhanded justice on merits in preference to the approach which scuttles a decision on merits may be adopted by a Court of law so that the term sufficient cause can be adequately used in an elastic fashion in a purposeful way thereby enabling the Court to apply the law in a purposeful way to do substantial and complete justice between the parties. 14. It transpires from records that in the Notes Paper in O.S.No.56 of 2007 on 22. 2007 the trial Court has stated that intimation not claimed service. Subsequently, defendant called absent, set exparte evidence by 13. 2007 and on 13. 2007 when the matter has been posted for exparte evidence, the same has been posted to 23. 2007 and on 23. 2007 it is mentioned as follows: P.W.1 proof affidavit filed. Exs.A.1 to A.3 marked. Heard. Records perused. Claim proved. Hence, the suit is decreed as prayed for with costs. 15. Before the trial Court in I.A.No.677 of 2007 on the side of respondent/plaintiff, Ex.R.1 xerox copy of amended plaint filed in O.S.No.47 of 2007 on the file of District Munsif, Kotagiri has been marked. In the said O.S.No.47 of 2007, the respondent/decree holder in O.S.No.56 of 2007 on the file of trial Court has figured as plaintiff and the first defendant is Vijaya Bank, Kotagiri and the second defendant is none other than the revision petitioner herein. Ex.R.2 is the xerox copy of the judgment dated 011. In the said O.S.No.47 of 2007, the respondent/decree holder in O.S.No.56 of 2007 on the file of trial Court has figured as plaintiff and the first defendant is Vijaya Bank, Kotagiri and the second defendant is none other than the revision petitioner herein. Ex.R.2 is the xerox copy of the judgment dated 011. 2007 made in O.S.No.47 of 2007 on the file of District Munsif Court, Kotagiri. In the said judgment, the first defendant Bank has been directed to hand over the original document in respect of the schedule property within a period of one month and also that the first defendant is to pay the costs. Ex.R.3 is the xerox copy of the name transfer order dated 27. 2007 in respect of the property tax No.712 (in favour of the respondent from the name of revision petitioner). Ex.R.4 is the xerox copy of the taxes receipt dated 11.07.2007 in favour of the respondent. 16. It is pertinent to make a mention that the respondent in I.A.No.677 of 2007 has figured as plaintiff in O.S.No.56 of 2007 on the file of learned Sub Judge, Coimbatore. In the plaint, the respondent/plaintiff has prayed for the relief of declaration to the effect that the retirement deed dated 16. 2006 executed by the revision petitioner/defendant is true, genuine and binding on him and for consequential relief of permanent injunction restraining him, his men and agents or anybody claiming any right through him from in any way interfering with the plaintiffs business activities. 17. In the written statement filed by the revision petitioner/defendant, it is inter alia mentioned that the revision petitioner/defendant is residing in the suit property with his family and two saw mills functioning in the suit property under the lease given by him and that the respondent/plaintiff has never taken possession of the suit property and that the suit properties described in the plaint have been offered as collateral security for the loan subsisting with the Vijaya Bank, Kotagiri and that the Bank has taken steps to recover the loan amount and that the proceedings are pending before the Debts Recovery Tribunal, Coimbatore and that the firm Nilgiri Timber Firm has not come into existence and no business activities have been carried on by it etc. 18. 18. A perusal of the order passed by the trial Court in I.A.No.677 of 2007 do indicate clearly that though the revision petitioner has filed medical certificate in support of the condonation of the delay of 88 days, he has not made an endeavour to prove the same by examining the doctor. Further, in para 7 of the order of the trial Court in I.A.No.677 of 2007 dated 11.02.2008 also refers to the fact that the revision petitioner on his side has filed a medical certificate dated 20.02.2007. A cursory perusal of the Notes Paper of the trial Court dated 22. 2007 in O.S.No.56 of 2007 categorically points out that the revision petitioner has been given intimation not claimed service and set exparte and the matter has been posted for evidence on 13. 2007 and the case has been adjourned from 13. 2007 to 23. 2007 for recording exparte evidence and only on 23. 2007 an exparte decree has been passed by the trial Court decreeing the suit as prayed for with costs by taking the affidavit evidence of P.W.1 and marking Exs.A.1 to A.3 documents. 19. It appears that the petitioner/defendant has not been quite diligent and in fact has adopted a laissez faire or a lackadaisical approach which has resulted in the predicament that he is in. However, in the Judges Notes Paper of the trial Court in O.S.No.56 of 2007 dated 22. 2007 the vital words service held sufficient are conspicuously absent. 20. On a careful consideration of respective contentions and bearing in mind the entire gamut of the facts and circumstances of the present case, this Court, instead of adopting a pedantic approach but taking a liberal view in a pragmatic manner and exercising judicial discretion and with a view that a Court of law has to do evenhanded justice on merits in preference to the approach which scuttles a decision on merits and overriding technical considerations, allows the civil revision petition subject to the condition that the petitioner shall pay a cost of Rs.3,000/-(as penalty) to the respondent/plaintiff counsel directly on or before 18. 2009 failing which, the petition shall stand dismissed automatically without any further reference. 21. In fine, the Civil Revision Petition is allowed, subject to the condition that the petitioner shall pay a cost of Rs.3,000/-(as penalty) to the respondent/plaintiff counsel directly on or before 18. 2009 failing which, the petition shall stand dismissed automatically without any further reference. 21. In fine, the Civil Revision Petition is allowed, subject to the condition that the petitioner shall pay a cost of Rs.3,000/-(as penalty) to the respondent/plaintiff counsel directly on or before 18. 2009 failing which, the petition shall stand dismissed automatically without any further reference. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.