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2009 DIGILAW 4591 (MAD)

Mrs. S. kalamani v. Ms. Farida

2009-10-30

M.VENUGOPAL

body2009
Judgment :- The Civil Revision Petitioner/Defendant has preferred Civil Revision petition against the order dated 15.03.2007 made in I.A.No.2022 of 2007 in O.S.No.467 of 2006 by the learned Principal District Judge, Coimbatore in dismissing the application filed by the Revision Petitioner/Defendant under Section 5 of the Limitation Act praying to condone the delay of 74 days in preferring an application to set aside the Ex Parte Decree dated 15.03.2007. 2. The trial Court while passing order in I.A.No.2022 of 2007 has inter alia come to the conclusion that the Revision Petitioner/Defendant in his affidavit in I.A.No.2022 of 2007 has merely stated that he has not been keeping well and except the bald statement, he has not mentioned any details about the period during which he has not been keeping good health, the disease in and by which he has been affected and also the name of the hospital and the name of the Doctor under whom he has taken treatment and further the Revision petitioner has not explained each and every days delay and resultantly, dismissed the application without costs. 3. According to the learned counsel for the Revision petitioner/Defendant, the trial Court has committed an error while dismissing the application in I.A.No.2022 of 2007 and in fact, the trial Court ought to have given an opportunity to the Revision Petitioner/Defendant to contest the suit and non-production of Medical Certificate and related documents thereto, will not falsify the case of the Revision petitioner/Defendant in regard to the illness pleaded generally in the affidavit in I.A.No.2022 of 2007 and these aspects of the matter have not been looked into by the trial Court in a proper perspective which has resulted in mis-carriage of justice and therefore, prays allowing of the civil Revision Petition in the interest of justice. 4. Contending contra, the learned counsel for the Respondent/Plaintiff/Decree-holder submits that the impugned order passed by the trial Court in I.A.No.2022 of 2007 is a reasoned one and in fact, the trial Court has come to a firm conclusion that the illness mentioned by the Revision petitioner in his affidavit in I.A.No.2022 of 2007 is bald and the same is not acceptable and all the more, the Revision petitioner has not explained each and every days delay in his affidavit and as such, the order requires no interference by this Court sitting in Revision. 5. 5. This Court heard the learned counsel appearing on either side and noticed their contentions. 6. A close scrutiny of the affidavit filed in I.A.No.2022 of 2007 by the Revision petitioner/Defendant indicates in clear terms that the Revision petitioner/Defendant has mentioned only that " he was not feeling well and unable to meet his counsel in time to file an application to set aside Ex Parte Decree in time and except this bald averment, no other details have been mentioned in regard to the period of treatment, manner of treatment, nature of disease, the name of the hospital and also the name of the Doctor under whom he has taken treatment during the period of his ill-health and in short, such an affidavit is bereft of both quantitative and qualitative details. 7. However, before the trial Court the Respondent/Plaintiff/Decree-holder has filed an elaborate and detailed counter whereby and where under it is averred inter alia that the Revision petitioner/Defendant earlier has entered appearance on 011. 2006 before the trial Court and time has been granted to file written statement at the request of the petitioner till 112. 2006 and later, the matter has been adjourned to 212. 2006. Thereafter, the matter has been adjourned to 12.01.2007 and again it has been adjourned to 31.01.2007 and later on adjourned to 09.02.2007 and lastly from 09.02.2007 to 23.02.2007. Even after several adjournments, since the Revision petitioner/Defendant has not chosen to file written statement, the trial Court has been left with no other option except to set the Revision petitioner ex parte etc. 8. It is to be noted that the term sufficient cause under Section 5 of the Limitation Act will have to be interpreted by a Court of law in a purposeful and in a meaningful manner. In short, a Court of Law shall not adopt a pedantic approach while dealing with an application for condonation of delay. If an application for condonation of delay is allowed, then the maximum thing that can happen is that the concerned party will be allowed to enter into the main arena of the legal proceedings and his case will be contested on merits, of course, opportunities being provided to the respective parties. In a processual system of jurisprudence substantial justice will have to be delivered to the parties over riding technical considerations. In a processual system of jurisprudence substantial justice will have to be delivered to the parties over riding technical considerations. It is to be noted that the Judiciary is respected not on account of its powers to legalise injustice on technical grounds, but it is capable of removing so. Even though the affidavit filed in I.A.No.2022 of 2007 by the Revision Petitioner /Defendant speaks only in cryptic terms that the Revision petitioner was not feeling well and unable to meet the counsel etc., and each and every days delay has not been explained, this court is of the considered view that the Revision petitioner/Defendant has not been quite diligent enough in prosecuting the matter. Generally a litigant does not stand to gain by projecting an application belatedly. In fact, by doing so, he/she runs a serious risk. However, in order to provide an opportunity to the Revision petitioner/Defendant to take part in the main case and to contest the case in regard to the issue involved on merits, this Court on the basis of Equity, Fair Play, good Conscience and as a matter of prudence directs the Revision petitioner to pay a sum of Rs.1,500/- (Rupees One Thousand and Five Hundred only) as costs directly to the counsel for the Respondent/Plaintiff within a period of ten days from the date of receipt of a copy of this order, failing which, it is made clear that this Civil Revision petition stands dismissed automatically without any further reference. 9. In fine, the Civil Revision Petition is disposed with a direction to the Revision Petitioner/Defendant to pay a sum of Rs.1, 500/-(Rupees One Thousand and Five Hundred only) as penalty/costs directly to the counsel for the Respondent/Plaintiff within a period of ten days from the date of receipt of a copy of this order, failing which, it is made clear that this civil Revision petition stands dismissed automatically without any further reference.