Y. Munneer Basha & Another v. P. Pappathi @ Rajamani & Others
2009-11-11
M.VENUGOPAL
body2009
DigiLaw.ai
Judgment The petitioners/plaintiffs 2 and 3 have filed this Civil Revision Petition as against the order dated 13.07.2009 in I.A.No.149 of 2007 in O.S.No.370 of 2001 passed by the learned Additional District Munsif Court, Namakkal, in dismissing the application filed by the revision petitioners under Section 5 of the Limitation Act praying to condone the delay of 282 days in filing an application under Order 9 Rule 9 of C.P.C to restore the suit that has been dismissed for default on 14.03.2006. 2. The trial Court, while passing order in I.A.No.149 of 2007, has inter alia observed that "the suit in O.S.No.370 of 2001 has been firstly dismissed for default on 16.04.2002 and later the same has been restored and subsequently, I.A.No.1074 of 2004 has been filed and the same has been allowed on terms on 24.01.2005 and the same has been restored on 07.07.2006 and again the suit has been dismissed for default and later I.A.No.1026 of 2006 has been filed to restore the suit and subsequently, the said interlocutory application has not been pressed and the same has been dismissed on 11.01.2007 and that the attitude of the petitioners from the beginning shows that they have no intention to prosecute the case and also that an application has been already filed in I.A.No.1026 of 2006 to restore the suit which has been dismissed on 14.03.2006 has not been pressed without reserving the right to file a fresh application after changing the date and therefore, the petitioners are barred from projecting this interlocutory application and resultantly dismissed the application without costs". .3.
.3. The learned counsel for the revision petitioners/plaintiffs 2 and 3 urges before this Court that the trial Court has committed an error in dismissing the application in I.A.No.149 of 2007 ignoring the averments made in the application and as a matter of fact, the trial Court has not taken note of the fact that the mother of the revision petitioners viz., the first plaintiff has expired on 10.04.2006 and earlier application in I.A.No.1026 of 2006 has not been pressed because of the simple fact that the date of the order has been wrongly mentioned as 13.03.2006 instead of the correct date 14.03.2006 and added further, the mother being the first plaintiff has not been keeping good health on 07.03.2006 and later she died on 10.04.2006 and hence, the delay in projecting the Section 5 application in I.A.No.149 of 2007 is neither wilful nor wanton and added further, the Order II Rule 2 of Civil Procedure Code is not applicable to the facts of the present case. But these factual aspects of the matter coupled with the legal position have not been adverted to and appreciated by the trial Court in proper perspective which has resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition to subserve the ends of justice. 4. This Court has paid its anxious consideration to the arguments advanced by the learned counsel for the petitioners and noticed the same. 5. It is to be borne in mind that the term "sufficient cause", has to be interpreted in a purposeful and in a meaningful manner. As a matter of fact, substantial justice will have to be delivered to the parties overriding technicalities. Generally speaking, the breadth and length of delay are not to be taken into account and there are no yardsticks to be considered while dealing with the condonation of delay application. If the Section 5 application viz., I.A.No.149 of 2007 is allowed, the highest thing that can happen is that the litigant/party is allowed to enter into the arena of legal proceedings and he or she can contest the matter on merits and there is a possibility of deciding the cause on merits. It is to be noted that the judiciary is respected not on account of its power to legalise, injustice on technical grounds, but it is capable of removing injustice and is expected to do so. .6.
It is to be noted that the judiciary is respected not on account of its power to legalise, injustice on technical grounds, but it is capable of removing injustice and is expected to do so. .6. Coming to the facts of the present case, it is to be pointed out that in the affidavit in I.A.No.149 of 2007 filed by the revision petitioners/plaintiffs 2 and 3, it is mentioned that the suit in O.S.No.370 of 2001 on the file of the learned Additional District Munsif, Namakkal has been posted in the list and on 07.03.2006, the proof affidavit has been filed on behalf of the revision petitioners/plaintiffs 2 and 3 and that the suit has been posted for the purpose of cross-examination of PW-1 on 08.03.2006 and on 07.03.2006 evening, the first plaintiff (deceased) viz., the mother of the 2nd and 3rd plaintiffs health has been affected and she has been suffering from severe viral fever and therefore, she has been taken to hospital for the purpose of treatment and because of that reason, the 3rd revision petitioner has not appeared before the Court and later because of the fact that the mothers health has been affected, she has been forced to be admitted in Salem hospital and therefore, he has not appeared for the hearing of the case on 10.03.2006, 13.03.2006 and 14.03.2006 for the purpose of cross-examination and lastly for his non-appearance, the suit has been dismissed on 14.03.2006 and that his mother also has expired on 10.04.2006 and later on he has met his counsel and filed I.A.No.1026 of 2006. But, in the said affidavit in I.A.No.1026 of 2006, the dismissal of the suit date has been mentioned as 13.03.2006 wrongly instead of the correct date of 14.03.2006 and this factum of mistake has came to be known only on 11.01.2007 and on the same day itself, the said I.A.No.1026 of 2006 has not been pressed and resultantly, the same has been dismissed and therefore, there is occasioned a delay of 282 days in projecting the fresh application viz.,I.A.No.149 of 2007 and therefore has prayed for allowing the Section 5 application for condonation of delay. 7.
7. Before the trial Court, the 3rd revision petitioner/4th respondent has filed a detailed counter stating that it is true that the suit has been dismissed on 14.03.2006, but also before the date on 16.04.2002, the suit has been dismissed and later the same has been restored to file and in I.A.No.1026 of 2006 why the first plaintiff has not appeared before the trial Court on 07.03.2006, 08.03.2006 and 10.03.2006 has not been made mention of and when I.A.1026 of 2006 posted for enquiry at that time on 11.01.2007, the said interlocutory application has been not pressed as per memo and accordingly, the same has been dismissed and again to set aside the dismissal order dated 14.03.2006, the application filed thereto is not maintainable and that petitioners are estopped in this regard and moreover, the death of the first plaintiff has been informed to the Court on 011. 2006 and that the application has been filed only on 20.01.2007. Under these circumstances, it indicates clearly that the petitioners have taken the proceedings of the Court in a casual manner and only with a malafide motive to delay the proceedings the petitioners have filed Section 5 application and no proper reasons have been assigned by the petitioners in regard to the condonation of delay of 282 days and therefore, has prayed for dismissal of the application. 8. As far as the present case is concerned, it appears that originally the suit has been dismissed for default on 16.04.2002 and later the same has been restored. Subsequently, I.A.No.1074 of 2004 has been filed and allowed on terms on 24.01.2005 and as such the suit has been restored. Once again, the suit has been dismissed for default on 07.07.2006 and later I.A.No.1026 of 2006 has been filed and the same has been dismissed as not pressed on 11.01.2007. .9. Considering the above facultative aspects of the matter that the petitioners are allowing the suit filed by them in O.S.No.370 of 2001 to go for default on more than two or three occasions, it clearly unerringly points out that they are not quite diligent enough .in prosecuting the Court proceedings. At this juncture, this Court pertinently points out that if the litigants make an honest approach to the Court in regard to their case then the Court of law may lend a helping hand based on the facts and circumstances of a given case.
At this juncture, this Court pertinently points out that if the litigants make an honest approach to the Court in regard to their case then the Court of law may lend a helping hand based on the facts and circumstances of a given case. Nevertheless, the fact that the term "sufficient cause" or "good case” will have to be interpreted in a meaningful and also in a purposeful way. Apart from that a Court of Law is to adopt a pragmatic approach rather than a pedantic approach. 10. This Court, on an overall assessment of the facts and circumstances of the present case, is of the considered view that the petitioners cannot seek the indulgence of this Court in regard to the condonation of delay of 282 days in projecting the Section 5 application and in short, this Court comes to the inescapable conclusion that the application lacks bonafide and accordingly, the Civil Revision Petition fails. 11. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed by the trial Court in I.A.No.149 of 2007 in O.S.No.370 of 2001 is affirmed by this Court for the reasons assigned in this revision. Having regard to the facts and circumstances of the case, there shall be no order as to costs.