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2010 DIGILAW 2478 (MAD)

P. Deivasigamani v. Asha Siraj

2010-06-22

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 5.2.2010 passed in I.A.No.37 of 2007 in O.S.No.6 of 2005 by the Additional District Court(Fast Track Court-II), Gobichettipalayam, this civil revision petition is focussed. 2. Heard the learned counsel for the petitioner. 3. The learned counsel for the petitioner, by filing the affidavit of service, would submit that the respondent and her advocate were served in person and despite that there is no response. As such, the learned counsel prays for orders on merits in this revision. 4. I could see considerable force in the submission made by the learned counsel for the petitioner. Accordingly, the civil revision petition itself is taken up for disposal at this stage itself. 5. The warp and woof of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition, would run thus:- (i) The respondent herein filed the suit O.S.No.6 of 2005 seeking the following reliefs: "to direct the defendant to pay the plaintiff a sum of Rs.5,60,000/- with future interest at the rate of 1.5% per month from the date of suit till the date of realisation of the decree amount." (ii) Whereupon written statement was filed. When the matter was posted for trial, the defendant was set ex-parte and ex-parte decree was passed on 17.7.2006. Whereupon the defendant filed the application to get the delay of 61 days condoned in filing the application to get the ex-parte decree set aside. However, that application was dismissed. 6. Being aggrieved by and dissatisfied with the said order, this revision has been filed mainly on the ground that the delay of 61 days was meagre and it occasioned due to the communication gap between the petitioner herein and his advocate before the lower Court. However, the lower Court took a very strict view of the matter and held as though there was no sufficient cause. 7. The point for consideration is as to whether there is any justification in condoning the delay of 61 days in filing the application for getting the ex-parte decree set aside. 8. Heard the learned counsel for the petitioner/defendant, who would reiterate the grounds of revision, by inviting the attention of this Court to the various portions of the typed set of papers filed by him. 9. 8. Heard the learned counsel for the petitioner/defendant, who would reiterate the grounds of revision, by inviting the attention of this Court to the various portions of the typed set of papers filed by him. 9. I could see that the suit itself is for specific performance of an agreement to sell relating to an immovable property. The delay involved is only 61 days in filing the application to get the ex-parte decree set aside. There is nothing to show that the petitioner/defendant was a chronic defaulter. For the first time the ex-parte decree was passed by the Court. As such, taking into consideration the over all circumstances, the lower Court could have given one more opportunity for the petitioner/defendant to defend the matter, but it was not done so. 10. At this juncture, I recollect and call up the recent decision of the Honble Apex Court reported in 2010(2) Supreme 115 (Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another) and an excerpt from it would run thus: "8. ............The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst.Katiji, (1987) 2 SCC 107 , N.Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 . ..........................." 11. One other decision of the Honble Apex Court reported in AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and aothers v. Gobardhan Sao and others) also could fruitfully be cited; certain excerpts from it would run thus: "13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. 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. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses." (emphasis added) 12. Applying the said decisions, I am of the view that the delay could be condoned subject to imposition of cost. Accordingly, the order dated 5.2.2010 passed in I.A.No.37 of 2007 is set aside and the I.A.is allowed condoning the delay of 61 days subject to the condition that the petitioner/defendant pays a cost of Rs.500/- (rupees five hundred only) to the respondent/plaintiff directly or deposit in the lower Court on or before 30.6.2010. Whereupon, the lower Court is expected to number the application filed under Order 9 Rule 13 of C.P.C. and process it as per law. In the event of allowing the said I.A. and setting aside the ex-parte decree, the suit itself shall be disposed of within a period of three months thereafter. Parties shall co-operate with the Court for early disposal of the matter. If there is default on the side of the petitioner/defendant in paying the cost, then this order will not enure to the benefit of the petitioner. The civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.