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2010 DIGILAW 2533 (MAD)

Rajamani v. U. Bhagyalakshmi

2010-06-25

G.RAJASURIA

body2010
Judgment :- Inveighing the order dated 6.1.2010 passed in I.A.No.2728 of 2008 in O.S.No.831 of 2007 by the Principal Distrit Munsif, Coimbatore, this civil revision petition is focussed. 2. Heard both sides. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this civil revision petition would run thus: (i) The revision petitioner/plaintiff filed the suit for partition, which was decreed ex-parte. Subsequently, I.A.No.2728 of 2008 was filed for obtaining final decree and notice also was sent to the other side. Thereafter, with the delay of 438 days application under Section 5 of the Limitation Act was filed, so as to get the delay of 438 days condoned in the process of filing the application to get the ex-parte preliminary decree set aside. (ii) The said application was contested and the lower Court ultimately condoned the delay by imposing a cost of Rs.500/- payable by the defendant in favour of the plaintiff. 4. Being aggrieved by and dissatisfied with the said order, this revision is focussed on various grounds, the warp and woof of them would run thus: (i) The lower Court failed to take into account the fact that the defendant participated in the Municipal election admittedly and despite that she had not chosen to participate in the proceedings. (ii) Suit summons was served in person and despite that the defendant had not chosen to participate in the proceedings. (iii) The delay was enormous and no adequate explanation also was given. (iv) Ignoring all the defects in the said application, the lower Court simply allowed it. 5. The learned counsel for the revision petitioner/plaintiff reiterating the grounds of revision would submit that absolutely there is no merit in the case of the defendant and that was why she had chosen to remain ex-parte; in order to protract the proceedings, and to stall the final decree proceedings she has chosen to file this application purely for the purpose of gaining milage in the litigative process.Accordingly, the learned counsel prays for setting aside the order dated 6.1.2010 passed in the I.A.No.2728 of 2008. 6. Whereas the learned counsel for the respondent/defendant would submit that in the affidavit accompanying the I.A.2728 of 2009 the defendant set out convincingly that she was suffering from Lucodoma and she could not carry on with her normal avocation and participate in the proceedings. 6. Whereas the learned counsel for the respondent/defendant would submit that in the affidavit accompanying the I.A.2728 of 2009 the defendant set out convincingly that she was suffering from Lucodoma and she could not carry on with her normal avocation and participate in the proceedings. Accordingly, the learned counsel prays for dismissing the revision on the ground that no interference with the order of the lower Court is required. 7. The point for consideration is as to whether there is illegality or impropriety on the part of the lower Court in condoning the delay of 438 days in filing the application to get the ex-parte preliminary decree set aside? 8. It is an admitted fact that the preliminary decree was passed on 3.9.2007 and the application for condoning the delay was filed on 4.11.2008. Accordingly, if calculated the actual delay comes to 396 days alone, excluding 30 days normal time for filing an application to get the ex-parte decree set aside. 9. Be that as it may, now then this Court is on a larger issue as to whether the lower Court exercised its discretion in condoning the delay properly or not. 10. Indubitably and indisputably the suit is one for partition between the sisters and the lower Court, perhaps, having that in the bank of its mind thought fit to be lenient in condoning the delay. It is quite obvious and axiomatic that if the lower Court exercised its discretion taking into account the over all circumstances it is not open for the revisional Court to interfere with such a discretion purely on the ground that a different view could be taken by the revisional Court, unless the view taken by the lower Court is perverse and totally illegal. In my considered opinion the lower Court thought that the reasons adduced in the affidavit could be relied on for the purpose of condoning the delay so as to give an opportunity to the defendant to participate in the proceedings. 11. 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. 11. 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 . ..........................." 12. One other decision of the Honble Apex Court reported in AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and others 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. 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) 13. Adhering to the above, I am of the considered view that this is not a fit case to interfere with the discretion exercised by the lower Court. However, I would like to enhance the cost awarded by the lower Court from Rs.500/- to Rs.5000/- (rupees five thousand) for the simple reason that there is ex facie and prima facie proof to show that the respondent participated in the Municipal election during the relevant period, but she did not choose to instruct her counsel for participating in the proceedings. Hence, this revision is disposed of by enhancing the cost of Rs.500/- to Rs.5000/- (rupees five thousand), which shall be payable by the respondent/defendant on or before 15.7.2010. If there is default in paying the cost, the respondent/defendant will not have the opportunity to participate in the proceedings and the order of the lower Court itself will stand set aside. In the event of the respondent/defendant complying with this condition the lower Court shall do well to see that the matter is processed further as per law and the matter itself is disposed of within a period of three months thereafter. The civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.