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2009 DIGILAW 3830 (MAD)

Subramaniam & Another v. Gandhi

2009-09-17

M.VENUGOPAL

body2009
Judgment :- The civil revision petitioners/petitioners/defendants have projected this civil revision petition as against the order dated 25.03.2008 in I.A.No.1231 of 2007 in O.S.No.94 of 2007 passed by the learned District Munsif, Perambalur in dismissing the application filed by the petitioners under Section 5 of the Limitation Act praying to condone the delay of 433 days in filing an application to restore the I.A.No.1663 of 2004. 2. The trial Court, while passing orders in I.A.No.1231 of 2007 on 25.03.2008, has inter alia opined that the reasons assigned by the first petitioner/first defendant that he has been affected by jaundice cannot be accepted and further in this regard no documents and details have been produced by the petitioners and resultantly dismissed the application. 3. The learned counsel for the revision petitioners urges before this Court that the order of the trial Court in dismissing I.A.No.1231 of 2007 is contrary to law and probabilities of the case and further the trial Court has not appreciated the factum of jaundice for the first and second time and also the trial Court has failed to appreciate the fact that the petitioners have not been informed by the counsel in regard to the dismissal of the application and now the petitioners have changed their counsel and proceeded with the case and these aspects of the matter have not been rightly looked into and appreciated by the trial Court in a proper perspective and therefore, prays for allowing the civil revision petition in the interest of justice. 4. In the affidavit filed by the first revision petitioner/first defendant before the trial Court, it is averred that the suit O.S.No.94 of 2001 has been posted on 17. 2006 for enquiry and since he has been suffering from jaundice, he has not been able to attend the Court and meet his Advocate and hence, the application is dismissed for default and the said non-appearance is neither wilful nor wanton and again he has been suffering from jaundice and therefore, he has not met his Advocate and unable to file the application in time which has resulted in a delay of 433 days in filing an application to restore the I.A.No.1663 of 2004. 5. 5. In the counter filed by the respondent/plaintiff (decree holder), it is among other things averred that I.A.No.1663 of 2004 which has been filed under Section 5 of the Limitation Act has been dismissed on 18.07.2006 and again to restore the same in I.A.No.1231 of 2007 the same reason of jaundice has been projected and as a matter of fact, in E.P.No.80 of 2005 the first civil revision petitioner/first defendants Advocate has filed vakalat on 111. 2006 and has filed counter on 15.06.2007 and later it has been adjourned to different dates for hearing and seven times the petitioners have prayed for time in between 111. 2006 and 15.06.2007 and later on only filed the counter to the execution proceedings and that suit has been filed in the year 2001 and the same has been decreed in the year 2004 and later an execution application has been filed in 2005 and after procrastinating the matter to a maximum extent now it is not to say that the petitioners have got a case and that they have not filed written statement earlier cannot be an acceptable one and therefore has prayed for the dismissal of the application. 6. The learned counsel for the respondent/plaintiff supports the order of the trial Court and submits that the trial Court has assigned cogent and convincing reasons in dismissing the application on merits and the same need not be interfered with by this Court sitting in revision. 7. The learned counsel for the respondent/plaintiff cites the decision in P. Perumal V. Minor Kumaresan (2003) 2 M.L.J. 837 wherein it is inter alia held that facts disclosed that the party against whom, an ex parte decree was passed, was aware of the proceedings and hence, sufficient cause was not made out. He also relies on the decision in S. Panchatcharam V. S. Sambandha Mudhaliar and Another (2008) 6 MLJ 534 it is held as follows: "As per Section 5 of Limitation Act, it is the duty of the petitioner to explain satisfactory reason, for each day of delay before the Court to condone the same. Therefore, when there is no explanation except bald allegation that delay was caused due to lower Court counsel, the order dismissing the delay petition needs no interference. Also where another suit is pending which will provide relief no prejudice is said to caused." 8. Therefore, when there is no explanation except bald allegation that delay was caused due to lower Court counsel, the order dismissing the delay petition needs no interference. Also where another suit is pending which will provide relief no prejudice is said to caused." 8. Another decision of this Court in K. Muthu V. A.Mohamed Yusuf Khan and Others (2008) 4 MLJ 1293 (Mad-NOC) has been relied on the side of the respondent/plaintiff to the effect that when the applicant has not come Court with clean hands, and when the affidavits are devoid of truth and bona fide liberal approach cannot be shown in matters relating to condonation of delay. 9. Continuing further, the learned counsel for the respondent/plaintiff presses into service the decision of this Court in Sivakumar and another V. R. Sengodan (2007) 5 MLJ 718 wherein it is laid down as follows: "In a case of condonation of delay, the Court must take a liberal view, but at the same time, the Court should not do so on exercising equity and Court should not excuse the delay when there is no sufficient and convincing reasons, otherwise, it would be nothing but extension of limitation what is not available to a party under an enactment." 10. In the decision in Kaliammal and Others V. Sundharammal and another (2007) 1 MLJ 577 at page 578 it is held that it is not whether the delay is long or short, but whether there is an acceptable explanation for it, which is of consequence. Where the delay has been deliberate, the petitioners cannot plead for substantial justice as against technical considerations. 11. It is to be noted that the expression sufficient cause must be applied by a Court of law in a meaningful manner which subserves the ends of justice. Moreover, a litigant generally does not stand to benefit by lodging an application late. If a litigant resorts to delay, certainly he runs a serious risk. When substantial justice and technical considerations are pitted against each other, it is true that cause of substantial justice deserves to be preferred, of course subject to the facts and circumstances of each and every case. 12. Moreover, it is the duty of the Court to go into the position of a party and to see their exists a sufficient cause for exercising its discretionary powers in regard to the condonation of delay. 12. Moreover, it is the duty of the Court to go into the position of a party and to see their exists a sufficient cause for exercising its discretionary powers in regard to the condonation of delay. NO wonder, the length of delay is immaterial. A honest approach of a defaulting party attracts the discretion of the Court to pass an appropriate order. At this juncture, this Court recalls the observations of Honble Supreme Curt in Mahabit Singh Vs. Subhash and Others (2008) 1 MLJ 1214 (SC) which runs thus: "Admittedly, an exparte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit exparte. Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an application. Even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the exparte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said exparte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order 9 Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the exparte decree in the suit, the said application evidently was barred by limitation." 13. Admittedly, the reason assigned by the petitioners in I.A.No.1663 of 2004 filed under Section 5 of the Limitation Act is the ailment of jaundice. Again in I.A.No.1231 of 2007 the reason assigned by the petitioners are also suffering from jaundice on 18.07.2006 and later also. Significantly, the first civil revision petitioner/ first defendant alone has filed the affidavit in I.A.No.1231 of 2007 before the trial Court. However, in the said affidavit in I.A.No.1231 of 2007 there is no reference to the second revision petitioner/second defendant. Significantly, the first civil revision petitioner/ first defendant alone has filed the affidavit in I.A.No.1231 of 2007 before the trial Court. However, in the said affidavit in I.A.No.1231 of 2007 there is no reference to the second revision petitioner/second defendant. Furthermore, the first revision petitioner/first defendants Advocate has filed vakalat on 111. 2006 in E.P.No.80 of 2005 and has filed his counter only on 111. 2006. 14. Even though a Court of law has to apply the term sufficient cause in a meaningful and purposeful way to secure the ends of justice, yet this Court is of the considered opinion that the liberal approach to be adopted by a Court of law while dealing with the Section 5 application cannot be employed in a cavalier fashion when the said application lacks bona fides. 15. As far as the present case is concerned, the reasons assigned by the revision petitioners in the affidavit to the effect that the first petitioner has been suffering from jaundice when the main case has been posted for hearing on 18.07.2006 and again he has been suffering from jaundice are not an acceptable, sufficient or good cause because of the simple fact that except the ipsi dixi of the petitioners to the above effect there are no valid, acceptable, convincing materials either by way of oral or documentary evidence and viewed in that perspective, the petitioners have not made out a case for allowing the present civil revision petition and consequently, this revision fails to prevent an aberration of justice. 16. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.1231 of 2007 in O.S.No.94 of 2001 dated 23. 2008 is confirmed for the reasons assigned by this Court in this revision. Consequently, connected miscellaneous petition is closed.