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2009 DIGILAW 3137 (MAD)

A. M. Subburathinam & Another v. Balaji

2009-08-12

V.PERIYA KARUPPIAH

body2009
Judgment : This revision petition has been filed against the order dated 23. 2008 passed by the Principal Subordinate Judge of Salem in I.A. No. 697 of 2007 in O.S. No. 205 of 2006 in disallowing the petition filed by the petitioner for condonation of delay of 334 days in filing the petition to set aside the ex parte decree. 2. The case of the petitioners would run as follows: The respondent/plaintiff had filed the suit in O.S. No. 205 of 2006 for specific performance on the basis of the alleged sale agreement. The petitioners borrowed amounts from the respondent/plaintiff in the year 2002 and the respondent/plaintiff has obtained the sale agreement by coercion. The respondent/plaintiff, in order to gain illegally and unlawfully by enforcing the alleged contract, had filed the suit for specific performance. After receipt of summons in the suit, the second petitioner/second defendant contracted the respondent/plaintiff through mediators and the respondent promised that he would withdraw the case. Believed his promise, he did not pursue the matter further and hence the written statement was not filed. After receipt of notice in the EP, the 2nd petitioner/2nd defendant came to know the false representations made by the respondent/plaintiff. The mother of the second petitioner/defendant is 79 years of age and due to her ill health she could not attend the Court regularly and the suit was decreed ex parte on 112. 2006. In order to establish their case, she filed written statement along with the petition to set aside the ex parte decree passed against them but the same was dismissed by the Subordinate Judge of Salem. Against the said dismissal, this Revision has been filed. 3. The case of the respondents would run as follows: The respondent denied the allegations made by the petitioners. The petition filed by the petitioners is not maintainable in law and on facts. The reason submitted by the petitioners to condone the delay of 334 days cannot be accepted because the suit was adjourned to 29. 2006 for filing of counter affidavit. Again, it was adjourned to 310. 2006, 211. 2006, 12. 2006 and lastly on 112. 2006. On 112. 2006 only, after giving several opportunity to the petitioners/defendants to contest the case, the suit was decided ex parte. Therefore, she prays the Court to dismiss the petition. 4. 2006 for filing of counter affidavit. Again, it was adjourned to 310. 2006, 211. 2006, 12. 2006 and lastly on 112. 2006. On 112. 2006 only, after giving several opportunity to the petitioners/defendants to contest the case, the suit was decided ex parte. Therefore, she prays the Court to dismiss the petition. 4. The lower Court had considered the case of both sides and had come to a conclusion of dismissing the claim of the petitioner seeking for condonation of delay of 334 days in filing the application to set aside the ex parte decree. Aggrieved by the said order, the Revision has been preferred by the petitioners. 5. Heard Mr. T. Karunakaran, the learned counsel appearing for the petitioners and Mr. M. Venkatachalapathy, learned senior counsel appearing for K. Rajasekar, learned counsel for respondent. 6. The learned counsel for the petitioners would submit in his argument that the petitioners were the defendants before the lower Court and the suit was decreed ex parte on 112. 2006 and, therefore, the petitioners applied for setting aside the ex parte decree 334 days in filing passed against them and there was a delay of such petition and they filed a petitioner for condonation of delay of said 334 days on the reasons that the petitioners were falsely given a promise by the respondent that they would report Settlement before the lower Court and the first petitioner was aged 79 years and he was affected by ill health during the said period and therefore, they could not pursue the case and the factum of passing ex parte decree was known to the petitioner only when they received notice in E.P proceedings filed by the respondent and the first petitioner is a senior citizen and the petition filed by the petitioners before the lower Court to condone the delay of 334 days was not considered and the lower Court had failed to give an opportunity to contest the suit without believing the words of the petitioners. He would draw the attention of the Court that a judgment of our Apex Court in between Collector, Land Acquisition Anantnag and Another v. Katji and Others AIR 1987 SC 1353 : (1987) 2 SCC 107 : 1987-1-LLJ-500 for the proposition of law that the Court had to adopt liberal and justice oriented approach in the case of condonation of delay sought to be condoned under Section 5 of the Limitation Act. He would also draw the attention of the Court to yet another judgment of our Apex Court in between N. Balakrishnan v. M. Krishnamurthy AIR 1998 SC 3115 : (1998) 7 SCC 446 : 1998 (2) CTC 533 for the same proposition of law. He would also cite a judgment of our Apex Court in between G.P. Srivastava v. R.K. Raizada and Others AIR 2000 SC 1221 : (2000) 3 SCC 54 for the principle that narrow and technical approach of the Court in the case of condonation of delay has to be avoided. He would also refer to a judgment of this Court in between Karunakaran v. Santha (2002) 2 MLJ 366 to the similar principle as enunciated by the Hon’ble Apex Court. He would, therefore, request the Court that the petitioners, who are aged and were cheated by the promise of the plaintiff/respondent, should have been given an opportunity to contest their case and therefore, the order passed by the lower Court has to be interfered with and to set aside. He would further submit that the lower Court had wrongly come to a conclusion that merely because time was obtained for filing written statement by the learned counsel for the petitioners before the lower Court, the petitioners are not entitled to have the condonation of delay caused in filing the petition to set aside the ex parte decree. Therefore, he would request the Court that revision petition may be allowed. 7. The learned senior counsel for the respondent would submit in his argument that the lower Court had correctly come to a conclusion of refusing to condone the delay of 334 days as no acceptable reason has been put forth by the petitioners. Therefore, he would request the Court that revision petition may be allowed. 7. The learned senior counsel for the respondent would submit in his argument that the lower Court had correctly come to a conclusion of refusing to condone the delay of 334 days as no acceptable reason has been put forth by the petitioners. He would further submit that the reasons submitted by the petitioners/defendants that the petitioners were under the mistaken believing that the plaintiff would have withdrawn the suit in the process of settling the suit in between them has not been shown to be correct and it would not be a sufficient cause as contemplated under Section 5 of the Limitation Act and, therefore, the petitioners’/defendants’ claim cannot be accepted. He would also submit in his argument that the petitioners have not produced any evidence before the Court to show that the first petitioner was taking treatment due to his ill health and due to the same he was not able to file a petition to set aside the ex parte decree before the said Court. Further, he would also submit in his argument that the petitioners, who were represented through counsel, cannot say that they were not aware of the ex parte decree passed against them. He would further submit that in a similar case, this Court has come to a conclusion of refusing to condone the delay in filing the petition to set aside the ex parte decree as referred in the judgment in between R. Jacob v. C. Prabakar (2007) 4 LW 639 . Therefore, he would request the Court that the lower Court had correctly come to a conclusion in dismissing the petition filed by the petitioners seeking for condonation of delay of 334 days in filing the petition to set aside the ex parte decree and therefore, the revision petition filed by the petitioners may be dismissed. 8. I have given anxious consideration to the arguments advanced on either side. 9. The suit was originally filed by the respondent/plaintiff against the defendants on the foot of an agreement entered into between them for the relief of specific performance and for execution of the sale deed in respect of the properties belonging to the defendants. No doubt, the petitioners/defendants were represented through counsel before the lower Court and he took time on behalf of the petitioners for filing written statement. No doubt, the petitioners/defendants were represented through counsel before the lower Court and he took time on behalf of the petitioners for filing written statement. The reasons alleged by the petitioners would be that the respondent/plaintiff had come forward with a proposal of settling the dispute in between them and had promised the defendants that they would report the settlement before the lower Court and they need not pursue the case. The further case of the petitioners/defendants would be that they, believing the word of the respondent/plaintiff, did not attend the case before the lower Court and they came to know about the passing of ex parte decree against them only after they received a notice from the Execution court. 10. Indisputably, the first petitioner is aged more than 79 years. He is a senior citizen. The allegation made by the petitioners against the respondent would be that he had promised to withdraw the suit on the advice of the mediators was not controverted specifically by the respondent. The first petitioner was aged more than 79 years and he was said to be ill during the relevant period and therefore, the petitioner had stated about his disability in his affidavit. The suit filed by the respondent/plaintiff was in respect of execution of sale deed on the foot of an agreement entered into between the parties. If for any reason, the petitioners are not given a chance to contest the suit they have to part with the property for the consideration mentioned in the said agreement, on the foot of an ex parte decree. On the other hand, the petitioners have also submitted the Court that the respondent/plaintiff had promised them to report settlement before the lower Court and therefore, they did not appear. In the peculiar circumstances of the case, the lower Court ought to have considered the request of the petitioners for condoning the delay of 334 days in view of the judgment of our Apex Court cited by the petitioners. According to the judgment of our Apex Court between Collector, Land Acquisition Anantnag and Another v. Katji and Others (supra) it has been categorically laid down as follows: “…. And such a liberal approach is adopted on principle as it is realized that: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. According to the judgment of our Apex Court between Collector, Land Acquisition Anantnag and Another v. Katji and Others (supra) it has been categorically laid down as follows: “…. And such a liberal approach is adopted on principle as it is realized that: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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 delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 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 that delay is on account of 5. There is no presumption occasioned deliberately, or culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. 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. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.” Similarly, a judgment of our Apex Court in between N. Balakrishnan v. M. Krishnamurthy (supra) would run as follows: “12. Rules of limitation are not meant to destroy the right of parties. They are meant see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. 13. A Court knows that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. 13. A Court knows that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words” sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance, substantial justice.” Yet another judgment of our Apex Court in between G.P. Srivastava v. R.K. Raizada and Others (supra) would run as follows: “Under Order 9 Rule 13 C.P.C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly prevented served upon the defendant or he was by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for nonappearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for nonappearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier….” The said judgments were followed by this Court in between Karunakaran v. Santha (supra) in which the following order has been passed: “It is clear that the uniform view taken by the Apex Court is, that the Court should not adopt unrealistic and technical approach while dealing with this kind of application as all parties would be put to unnecessary hardship and inconvenience. The ends of justice would be met only if the litigant is given an opportunity to prove his case within reasonable time. The Court should not refuse to condone the delay as it would result in foreclosing a suitor from putting forth his case (i.e.) nipping the case of the parties in the bud itself and the same is not approved and appreciated by the Apex Court. This Court should not also be hyper technical in the petitions of this nature. Having this in mind, as the petitioner/defendant has raised certain statable defence in the written statement, which is subject to proof he must be given an opportunity to contest the matter on merits. The petitioner/defendant cannot be short circuited with the help of the ex parte order of dismissal of his application.” Similarly, yet another judgment of this Court in R. Jacob v. C. Prabakar (supra) would run as follows: “13. The subject matter of the Agreement of sale appears to be superstructure on a small trip of site measuring 190 sq. ft. Over the years valuable right has been accrued. The plaintiff and the settled state of things cannot be disturbed on the ground that the Defendant he is come out with an application with vague reasons that he had family problems. There is no proper exercise of discretion by the lower Court in condoning the delay and the impugned Order cannot be sustained.” 11. The plaintiff and the settled state of things cannot be disturbed on the ground that the Defendant he is come out with an application with vague reasons that he had family problems. There is no proper exercise of discretion by the lower Court in condoning the delay and the impugned Order cannot be sustained.” 11. On a careful perusal of the aforesaid judgments passed by the Hon’ble Apex Court, I could see that the reasons submitted by the petitioners seeking for condonation of delay of 334 days should have been considered liberally in order to render substantial justice to both parties. A judgment of this Court in between R. Jacob v. C. Prabakar (supra) would depict that the claim of the petitioners of that case who sought for condonation of delay cannot be afforded since the allegations mentioned in his affidavit are vague and not definite. Therefore, the said judgment cannot be applied to the facts of this case because the respondent did not deny specifically the reason mentioned by the petitioner in the affidavit. The learned judge had discussed all these judgments of our Hon’ble Apex Court and before approaching the case on factual aspect had also mentioned that liberal approach should be made while considering the reasons before passing an order in the petition seeking for condonation of delay. 12. As far as this case is concerned, the petitioners are the defendants. Among the petitioners, the first petitioner is aged more than 79 years and he was said to have been ailing at that time and a promise was given by the respondent/plaintiff that they would report settlement in the case and the first petitioner/first defendant did not attend the Court owing to the said settlement. First petitioner being an old man might have strongly believed the words of the respondent/plaintiff and avoided the Court. The obtaining of time for filing written statement by the counsel will not in any way change the circumstances of the since the reason stated by the petitioners were not specifically denied by the respondent. It is the case of the petitioners that they have tome to the knowledge of passing the ex parte decree only on the receipt of notice in the Execution Petition. It is the case of the petitioners that they have tome to the knowledge of passing the ex parte decree only on the receipt of notice in the Execution Petition. Having gone through the affidavit and other circumstances of the case, I could see that the lower Court ought to have given an opportunity to the petitioners to contest the case. Due to the order passed by the lower Court in refusing the condonation of delay in filling the application to set aside the ex parte decree, the right of defence available to the petitioners in the suit for specific performance have been taken away on the foot of ex parte decree. The lower Court ought to have considered the reasons put forth by the petitioners and to given an opportunity to the petitioners for contesting the case. But, it was not done by the lower Court. The principles and dictums laid down by the Hon’ble Apex Court as well as this Court would go to show that while advancing substantial justice to the petitioners, the right of the respondent has to be considered and compensated by ordering payment of costs. Therefore, I could see that the lower Court had miserably failed to render substantial justice to the party when there was no serious and willful default on the part of the petitioners. In these circumstances, I am of the view that the order passed by the lower Court is not in accordance with the principles of law as laid down by the Apex Court and this Court in several judgments referred to above. Therefore, it has become necessary for this Court to interfere and set aside the order passed by the lower Court. Accordingly, the dismissal of the petition filed under Section 5 of Limitation Act to condone the delay of 334 days by the lower Court have been set aside and the revision petition is liable to be allowed. However, the respondent/plaintiff should have been compensated when substantial justice is done to the petitioners. Therefore, the petitioners are directed to pay a sum of Rs.1,000/- to the respondent within 15 days from the date of receipt of a copy of this order. However, the respondent/plaintiff should have been compensated when substantial justice is done to the petitioners. Therefore, the petitioners are directed to pay a sum of Rs.1,000/- to the respondent within 15 days from the date of receipt of a copy of this order. On such payment, the order passed by this Court will come into force and the petition filed by the petitioner for condonation of delay of 334 days and the consequent petition to set aside the ex parte decree will be allowed. In default to pay the said amount, the order passed by this Court in this revision petition shall stand cancelled without further reference to the Court. With the aforesaid conditions, the civil revision petition is ordered. No costs. Consequently, connected M.P is closed. Ordered accordingly.