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2010 DIGILAW 2851 (MAD)

K. Palanivelu v. K. Subhramaniam

2010-07-14

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 22.01.2010 passed in I.A.No.290 of 2009 in O.S.No.228 of 2005 by the learned III Additional District Munsif, Coimbatore, this civil revision petition is focussed. 2. Heard both sides. 3. The long and short and the compendium of the relevant facts germane for the disposal of this revision would run thus: (i) The revision petitioner herein filed the suit O.S.No.228 of 2005 seeking the following reliefs: "(a) To grant a decree declaring the title of the plaintiff to the suit property fully described in the schedule below and consequently direct the defendant to give vacant possession of the suit property to the plaintiff; (b) To grant a decree for a sum of Rs.12,000/- (Rupees twelve thousand only) in favour of the plaintiff against the defendant directing him to pay the suit cost and grant further damages at the rate of Rs.1,000/- (Rupees one thousand only) from the date of suit till realization of decree amount; and (c) For costs." (extracted as such) (ii) For non filing of the written statement, the plaintiff was set ex parte. Subsequently, the said ex parte decree was set aside and thereafter, written statement was filed and after framing issues the trial commenced. P.W.1 was examined in chief on the plaintiffs side, however, he was not cross examined by the defendant. Whereupon, ex parte decree was passed. Subsequently, I.A.No.290 of 2009 under Section 5 of the Limitation Act was filed so as to get the delay of 330 days condoned in filing the application under Order 9 Rule 13 of CPC. The lower Court after considering the matter, passed conditional order to the effect that the defendant shall pay a sum of Rs.2,000/- (Rupees two thousand only) as cost to the plaintiff. 4. Being aggrieved by and dissatisfied with the said order of the lower Court, this revision has been filed by the plaintiff on various grounds, which could tersely and briefly be set out thus: The lower Court without adhering to the precedents governing the condonation of delay, simply condoned the huge delay of 330 days even without assigning any reason, much less valid reason. The routine ground of illness was cited on the side of the defendant, which was readily accepted by the lower Court, without expecting any proof in that regard. The routine ground of illness was cited on the side of the defendant, which was readily accepted by the lower Court, without expecting any proof in that regard. The fact also remains that even before filing of I.A.No.290 of 2009, one other unnumbered application was filed under Section 5 of the Limitation Act by the defendant setting out the ground as though he was suffering from knee pain, but he did not take care to get it numbered and process it. As such, absolutely there was no reason for condoning the long delay. 5. Reiterating the grounds of revision, the learned counsel for the petitioner would submit that in the counter filed by the plaintiff to the defendants I.A.No.290 of 2009, all the details are found set out and the lower Court without considering those facts decided the case. Accordingly, he prays for setting aside the order of the lower Court and for dismissing I.A.No.290 of 2009. 6. On the contrary, the learned counsel for the respondent/defendant would put forth and set forth his arguments, the gist and kernel of them would run thus: It is a trite proposition of law that if the lower Court exercised its jurisdiction in condoning the delay, then this Court while exercising its revisional power would be reluctant to interfere with the same. The lower Court invoking the principle of audi alteram partem and also taking into account the over all circumstances involved in this case granted opportunity to the defendant by condoning the delay. As such, no interference with the order of the lower Court is warranted. 7. The points for consideration are as to: (1) Whether there is any justification for condoning the delay of 330 days in filing the application under Order 9 Rule 13 of CPC? and (2) Whether there is any infirmity in the order passed by the lower Court? 8. The indubitable and indisputable, incontrovertible and ungainsayable facts are to the effect that the plaintiff is the younger brother of the defendant. The suit property originally belonged to their mother. and (2) Whether there is any infirmity in the order passed by the lower Court? 8. The indubitable and indisputable, incontrovertible and ungainsayable facts are to the effect that the plaintiff is the younger brother of the defendant. The suit property originally belonged to their mother. It is the contention of the plaintiff that their mother during her life time executed a settlement deed donating the suit property in favour of the plaintiff, whereas, it is the contention of the defendant that her mother even during her life time cancelled the same, as the said settlement was brought about by practising fraud on their mother. The contention of the learned counsel for the defendant is that taking undue advantage of the illness of the defendant, the plaintiff obtained ex parte decree which is liable to be set aside. 9. A mere poring over and perusal of the order of the lower court would reveal that the lower Court no doubt remarked that the defendant was not justified in being negligent in participating in the proceedings. However, taking into account the over all circumstances involved in this case, the lower Court allowed the petition under Section 5 of the Limitation Act on cost of Rs.2,000/- payable by the defendant to the plaintiff. 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. 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) 11. It is quite obvious from the perusal of those two decisions that if the delay is more, the Court should be strict in analysing the grounds set out for getting the delay condoned. On the other hand, if the delay is meagre, then a lenient view could be taken. It is quite obvious from the perusal of those two decisions that if the delay is more, the Court should be strict in analysing the grounds set out for getting the delay condoned. On the other hand, if the delay is meagre, then a lenient view could be taken. Here, undoubtedly the delay of 330 days is on the higher side. Even then, what I would like to point out is that this is a case in which the trial Court, which is the best Court to deal with the matters of this nature, arrived at the conclusion that one more opportunity should be given, obviously keeping in mind that the litigation is between brothers and an immovable property is involved in the suit. In such a case, this Court being a revisional Court would be reluctant and hesitant in interfering with the discretion exercised by the lower Court on seeing the routine ground of illness having been cited on the side of the respondent/defendant, the lower Court also took exception to it. No doubt, the learned counsel for the plaintiff would point out that in the earlier unnumbered application, the reason stated was that the defendant was suffering from knee pain, whereas, in the affidavit accompanying the application I.A.No.290 of 2009, the reason stated was that the defendant was suffering from asthma. 12. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that no doubt if a strict view if taken, then certainly the defendant would be in disadvantageous position. But the lower Court considering the nearness of relationship and that the immovable property is involved in the suit, did choose to condone the delay of 330 days on payment of cost. However, the cost of Rs.2,000/- (Rupees two thousand only) awarded, in my opinion is on the lower side and it should be enhanced from Rs.2,000/- to Rs.5,000/- (Rupees five thousand only) payable by the defendant to the plaintiff by 31st July 2010. If there is non compliance with this order, then I.A.No.290 of 2009 shall stand dismissed. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.