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2009 DIGILAW 4822 (MAD)

U. K. Subramaniam v. Gunasekaran

2009-11-10

M.VENUGOPAL

body2009
Judgment The petitioner/second petitioner/second defendant has filed this civil revision petition as against the Judgment and Decree dated 27.04.2009 made in C.M.A.No.42 of 2007 passed by the III Additional Subordinate Judge, Coimbatore in confirming the order in I.A.No.847 of 2006 in O.S.No.1476 of 1999 dated 012. 2006 passed by the I Additional District Munsif, Coimbatore in dismissing the application filed by the revision petitioner and another under Section 5 of the Limitation Act praying to condone the delay of 1504 days in filing an application to set aside the exparte decree dated 011. 2001. .2. The First Appellate Authority, viz., III Additional Subordinate Judge, Coimbatore, while dismissing the C.M.A.No.42 of 2007, has come to the conclusion that the order of the trial Court passed in I.A.No.847 of 2006 does not suffer from any infirmity and resultantly, dismissed the appeal, thereby confirming the order passed in I.A.No.847 of 2006 dated 012. 2006. 3. Earlier, the trial Court, while passing orders in I.A.No.847 of 2006 dated 012. 2006 has come to the resultant conclusion that it is not the case of the petitioner that the sickness of the second defendant prevented him for more than 4 years from pursuing the further course of the suit and this is the fit case where the petitioner in an application under Section 5 of the Limitation Act is bound to explain each days delay and the reason adduced thereto is not acceptable to condone the delay of 1504 days in projecting the application to set aside the exparte decree and ultimately dismissed the said application without costs. .4. .4. The learned counsel for the revision petitioner/ second defendant submits that the judgment and decree of the Appellate Authority in C.M.A.No.42 of 2007 dated 27.04.2009 are against law and facts and both the Courts should have seen that only due to the sudden sickness of the revision petitioner who is aged about 62 years was disabled from contacting his counsel in time to file the set aside application and moreover, the Courts below ought to have seen that the suit filed by the revision petitioner and four others in O.S.No.2296 of 1998 has been dismissed and against the said judgment and decree, the revision petitioner projected A.S.No.22 of 2007 on the file of the learned III Additional Sub Judge, Coimbatore and the said appeal has been allowed by the judgment and decree dated 17.04.2007 and direction has been issued to conduct joint trial in O.S.No.1476 of 1999 in which the revision petition has been filed and moreover, unless the judgment dated 27.04.2009 in C.M.A.No.42 of 2007 in O.S.No.1476 of 1999 is set aside, the trial of O.S.No.2296 of 1998 cannot completed which seriously jeopardises the right of the petitioner herein and the petitioner as second defendant has filed the written statement in the suit and he is diligently conducting the suit and therefore, he should have been provided with an opportunity to contest the case on merits and indeed no prejudice will be caused to the first respondent if the suit O.S.No.1476 of 1999 is restored to file and the same is proceeded to be decided on merits and by virtue of the exparte decree, the revision petitioner is put to great prejudice and in short, both the Courts below have not taken a liberal approach and if it has taken a liberal approach then the petitioner will have an opportunity to decide his cause on merits and these aspects of the matter have not been appreciated and considered by both the Courts in proper perspective and therefore, prays for allowing the civil revision petition to prevent an aberration of justice. 5. This Court has heard the learned counsel appearing for the parties and noticed their contentions. 6. At the outset, this Court pertinently points out that as against the orders passed by the trial Court in I.A.No.847 of 2006 in O.S.No.1476 of 1999 dated 012. 2006 only a revision petition lies before this Court. 5. This Court has heard the learned counsel appearing for the parties and noticed their contentions. 6. At the outset, this Court pertinently points out that as against the orders passed by the trial Court in I.A.No.847 of 2006 in O.S.No.1476 of 1999 dated 012. 2006 only a revision petition lies before this Court. However, the civil revision petitioner has projected C.M.A.No.42 of 2007 and the same has been entertained by the First Appellate Authority viz., III Additional Subordinate Judge, Coimbatore and later the Civil Miscellaneous Appeal has been dismissed by virtue of Judgment dated 27.04.2009. 7. Dehors the Judgment and Decree made in C.M.A.No.42 of 2007 by the learned III Additional Subordinate Judge, Coimbatore dated 27.04.2009, it is the specific contention of the learned counsel for the revision petitioner that this Court under Article 227 of the Constitution of India can test the correctness of the order passed by the trial Court in I.A.No.847 of 2006 in O.S.No.1476 of 1999 dated 012. 2006. 8. Expatiating her arguments, the learned counsel for the revision petitioner cites the decision of N.Balakrishnan V. M.Krishnamurthy (1998) 7 Supreme Court Cases 123 at page 124 wherein the Honourable Supreme Court has inter alia observed that ... But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. A court knows that refusal to condone 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 words "sufficient cause" under Section 5 of the Limitation Act should receive receive a liberal construction so as to advance substantial justice. .9. Admittedly, the first respondent/plaintiff before the learned District Munsif, Coimbatore has filed a suit in O.S.No.1476 of 1999 against the present revision petitioner and his deceased mother praying for the relief of permanent injunction restraining the revision petitioner and deceased mother, their men, agent, servants and subordinate from disturbing peaceful and lawful usage by the plaintiff the common pathway (situated along the adjoining property leading to Netaji Road) and Public Water Pipe (erected by the Coimbatore Municipal Corporation for the usage and benefit of all the residents in the area) and for costs. 10. 10. It is useful to refer to the affidavit filed by the revision petitioner/second defendant in I.A.No.847 of 2006 at para 2 wherein it is specifically, among other things, mentioned that ... the above case was posted for trial on 211. 2001, (actually the correct and exact date is 011. 2001) but due to the sudden sickness of the first defendant in the above suit and since he being the only son to look after the deceased mother, due to his sickness he has not been able to give instructions to his counsel to seek adjournment and due to his non-appearance, his mother and himself have called exparte and an exparte decree has been passed on 011. 2001 and due to the old age and sickness, he has not been in a position to move outside freely and he has also not contacted his counsel for the past four years and hence he has not been in a position to file the set aside application in time and now he has come to know that an exparte decree has been passed against him on 011. 2001 and therefore, the non-filing of the setting aside application in time is neither wilful nor wanton but due to the aforesaid reason and in that process, there has occasioned a delay of 1504 days in filing an application to set aside the exparte decree passed against him on 011. 2001. .11. In the counter filed by the first respondent/ plaintiff, it is inter alia mentioned that the main suit O.S.No.1476 of 1999 has been filed for the relief of permanent injunction and the same has been ripe for trial on 011. 2001. .11. In the counter filed by the first respondent/ plaintiff, it is inter alia mentioned that the main suit O.S.No.1476 of 1999 has been filed for the relief of permanent injunction and the same has been ripe for trial on 011. 2001 at that time the petitioner has purposely not attending the Court and therefore, the Court has passed exparte decree and after a lapse of five years the revision petitioner has filed an application viz., I.A.No.847 of 2006 and even though his mother Peachiammal has expired in the year 2003, the revision petitioner has not projected any application before the trial Court and further the application is not maintainable and added further, the revision petitioner is a retired teacher and he is very well aware of the Court proceedings and he has been appearing regularly before the Court and also contesting another case in O.S.No.2296 of 1998 on the file of the learned III Additional District Munsif, Coimbatore from the year 1989 itself to 22.08.2006 and the case has been posted for Judgment on 20.09.2006 and therefore, the present application has been filed in a vexatious manner and also with a view to prolong the proceedings and also to waste the time of the Court and therefore, the petition has no merits and the same is not maintainable in law. 12. It is to be noted that the term sufficient cause has to be given a liberal and purposeful meaning so as to subserve the ends of justice. In fact, the term sufficient cause has to be interpreted in a purposeful and meaningful way. Ordinarily a litigant does not stand to gain by projecting an application belatedly. Per contra, he/she runs a serious risk. If an application for condonation of delay is allowed, then the maximum thing that can happen is that the petitioner/applicant will be permitted to enter into the main arena of legal proceedings and there will be a possibility for his cause being decided on merits, of course opportunity being provided to parties. It is also to be borne in mind that judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing so. It is also to be borne in mind that judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing so. By and large a Court of Law will have to take into account the facts and circumstances of the given case in an integral fashion by taking a liberal view overriding technicalities to subserve the ends of justice. But at the same time, a Court of Law has to act with greatest care and circumspection and that a valuable right accrued to a party in a given case cannot be allowed to be taken in a casual or routine manner. To put it precisely, the rights accrued to a party based on the Exparte Decree obtained cannot be so easily displaced in view of the settled position in law that an Exparte Decree is also a Decree which binds the parties inter se till the same is not set aside. 13. The existence of sufficient cause is a vital condition for allowing the application for condonation of delay. It is the duty of the Court to go into the position of the party and to see that there exists a sufficient cause for exercising discretion in regard to the condonation of delay. No wonder, the length and breadth of delay are immaterial. An honest approach of the defaulting/defaulted party attracts the discretion of the Court to pass an appropriate order. .14. Added further, the learned counsel for the revision petitioner submits that the revision petitioner and his deceased mother earlier filed O.S.No.2296 of 1998 on the file of the learned III Additional District Munsif, Coimbatore praying for the relief of declaration against the present respondent/plaintiff and the said suit has been dismissed on 20.09.2006 and later the revision petitioner and his deceased mother have preferred A.S.No.22 of 2007 and the same has been allowed by the III Additional Sub Judge, Coimbatore on 17.04.2007 and in the said Judgment, there has been a direction issued for trying of O.S.No.1476 of 1999 and O.S.No.2296 of 1998 jointly and these suits will have to be disposed of within four months from the date of receipt of copy of the said judgment and the parties have been directed to take appropriate steps in this regard. 15. 15. Countering the submission of the learned counsel for the revision petitioner, the learned counsel for the respondent/plaintiff submits that O.S.No.1476 of 1999 on the file of the trial Court has been decreed exparte on 011. 2001 and therefore, even though the direction has been issued in A.S.No.22 of 2007 to conduct the trial of two suits O.S.No.1476 of 1999 and O.S.No.2296 of 1998 jointly and to dispose of the same within a period of four months from the date of receipt of copy of the judgment, the same is non-est in law since admittedly the exparte decree has been passed in O.S.No.1476 of 1999 and unfortunately, this aspect of the correct position has not been brought to the notice of the First Appellate Court by either of the parties and therefore, the direction issued in A.S.No.22 of 2007 in the judgment dated 17.04.2007 is an unworkable one and is also for the present an otiose one. 16. However, it is apt for this Court to recall the observation of Honble Supreme Court in the decision 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. 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." 17. As far as the present case is concerned, dehors the fact that C.M.A.No.42 of 2007 is per se not maintainable as against the order passed in I.A.No.847 of 2006 dated 012. 2006. It passes beyond once comprehension as to how C.M.A.No.42 of 2007 has been entertained and disposed of by the learned III Additional Subordinate Judge, Coimbatore when in law only a revision lies against the order dated 012. 2006 in I.A.No.847 of 2006 in O.S.No.1476 of 1999 on the file of I Additional District Munsif, Coimbatore. In the affidavit in I.A.No.847 of 2006 filed by the revision petitioner, it is candidly stated that the suit O.S.No.1476 of 1999 has been posted for trial on 211. 2001 (but the correct date is 011. 2001) has admitted by both sides and further the petitioner is also aware of the fact that the Exparte Decree has been passed in favour of the respondent as on 011. 2001 and therefore, the logical corollary is that the revision petitioner has come to know of the passing of the exparte decree in suit O.S.No.1476 of 1999 on 011. 2001 itself. At this stage, this Court worth recalls that, as per Article 123 of the Limitation Act, the petitioner, after 30 days coming to know of the exparte decree viz., 011. 2001, has projected this I.A.No.847 of 2006 only in the month of August 2006 and in fact, for the delay of 1504 days though the reason ascribed by the revision petitioner that because of his alleged and sickness has not been in a position to move outside freely and has not contacted his counsel for the past 4 years etc. 2001, has projected this I.A.No.847 of 2006 only in the month of August 2006 and in fact, for the delay of 1504 days though the reason ascribed by the revision petitioner that because of his alleged and sickness has not been in a position to move outside freely and has not contacted his counsel for the past 4 years etc. cannot be a bona fide and valid ground based on which no indulgence can be shown by this Court with regard to the condonation of delay because of the axiomatic fact that the ingredients of Article 123 of the Limitation Act are very much against the case of the petitioner and viewed in that perspective, this Court is of the considered view that the petitioner has not made out an acceptable case either as a good cause or as a sufficient cause so as to enable this Court to take an elastic, liberal and pragmatic common sense of approaching Section 5 condonation application and in short, on an overall assessment of the facts and circumstances of the case in a complete and comprehensive manner, this Court is of the considered view that all these faculative aspects are very much loaded against the petitioner and viewed in that angle, the order of the trial Court passed in I.A.No.847 of 2006 does not require any interference since there is no serious infirmity or patent illegality in the order passed by the trial Court and resultantly, the civil revision petition fails. 18. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the learned I Additional District Munsif, Coimbatore in I.A.No.847 of 2006 dated 012. 2006 is confirmed for the reasons assigned by this Court in this revision. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.