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2010 DIGILAW 2749 (MAD)

P. Deivasigamani v. Asha Siraj

2010-07-07

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 05.02.2010 passed in I.A.No.37 of 2007 in O.S.No.6 of 2005, by the learned Additional District Court (Fast Track Court-II), Gobichettipalayam, this civil revision petition is focussed. 2. Heard both sides. 3. Shorn of details, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent/plaintiff filed the suit for specific performance on an agreement to sell which emerged between the petitioner and the respondent herein; whereupon the matter was dealt with by the lower Court and ex parte decree was passed consequent upon the failure of the revision petitioner/defendant in participating the proceedings. Subsequently, the revision petitioner filed I.A.No.37 of 2007 under Section 5 of the Limitation Act to get the delay of 61 days condoned in filing the application to get the ex parte decree set aside. After hearing both sides, the trial Court dismissed it. 4. Being aggrieved by and dissatisfied with the same, this revision has been filed on various grounds, the gist and kernel of them would run thus: The lower Court instead of taking a lenient view took a very strict view of the matter and dismissed the application even though the delay itself was meagre, so to say 61 days in filing the application to get the ex parte decree set aside. 5. The learned counsel for the petitioner placing reliance on the grounds of revision would submit that there are instances where the Honble Apex Court condoned huge delays also taking into account the over all circumstances and the gravity of the matter. Accordingly, the learned counsel for the petitioner implores and entreat that an opportunity might be given to the revision petitioner to participate in the proceedings after condoning the delay in filing the application concerned. 6. By way of contradicting and challenging the averments/arguments as put forth on the side of the revision petitioner/defendant, the learned counsel for the respondent/plaintiff would submit that this is not a case like any other case wherein the Court could take a lenient view. The revision petitioner is a person who is in the know of things and he is capable of putting two and two together and draw a conclusion and such person should not be viewed lightly, and deliberately for the purpose of protracting the proceedings he has chosen to file the application belatedly. 7. The revision petitioner is a person who is in the know of things and he is capable of putting two and two together and draw a conclusion and such person should not be viewed lightly, and deliberately for the purpose of protracting the proceedings he has chosen to file the application belatedly. 7. The points for consideration are as to: (i) Whether there is any justification in condoning the delay of 61 days in filing the application for getting the ex parte decree side? and (ii) Whether there is any infirmity in the order passed by the lower Court? 8. 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 . ..........................." 9. ..........................." 9. 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) 10. A mere poring over and perusal of those decisions would amply make the point clear that if the delay is meagre, lenient view could be taken and if the delay is enormous, strict view has to be taken. Here the reason furnished for condoning the delay was that he was working at the relevant time in a place different from the place where the Court is situated. I would like to point that even though the reason furnished in my opinion is not so clinching, yet taking into consideration the fact that the suit itself is for specific performance of an agreement to sell, the delay of 61 days in filing the application to get the ex parte decree set aside is condoned, subject to payment of cost of Rs.2,000/- (Rupees two thousand only) payable by the revision petitioner to the respondent on or before 15.07.2010. On such payment, the trial Court shall number the application under Order 9 Rule 13 of CPC and process it as per law and dispose it of as expeditiously as possible. In the event of setting aside the ex parte decree, the suit itself shall be disposed of within a period of two months thereafter. 11. On such payment, the trial Court shall number the application under Order 9 Rule 13 of CPC and process it as per law and dispose it of as expeditiously as possible. In the event of setting aside the ex parte decree, the suit itself shall be disposed of within a period of two months thereafter. 11. At this juncture, the learned counsel for the petitioner would submit that consequent upon the earlier order dated 22.06.2010 passed by this Court, [which was subsequently set aside and the matter is reheard] the sum of Rs.500/-(Rupees five hundred only) as ordered earlier was paid and the application filed under Order 9 Rule 13 of CPC was numbered as I.A.No.78 of 2010. Hence, in such a case, the said I.A.No.78 of 2010 shall be disposed of as expeditiously as possible and thereafter, within a period of two months the suit shall be disposed of on merits and if there is non compliance with the payment of cost by the revision petitioner, this order will not enure to his benefit. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.