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2010 DIGILAW 2938 (MAD)

M/s Santhosh Traders v. M/s M. R. L. Agencies

2010-07-19

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 07.07.2009, passed in I.A.No.20815 of 2008 in O.S.No.4531 of 2007 by the learnd IV Asst. Judge, City Civil Court, Chennai, this civil revision petition is focussed. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent filed the suit for recovery of money invoking Order 37 of CPC. It so happened that the defendant did not appear. Whereupon, ex parte decree was passed. Subsequently, I.A.No.20815 of 2008 was filed under Section 5 of the Limitation Act to get the delay of 393 days condoned in filing the application under Order 9 Rule 13 of CPC to get the ex parte decree set aside. Whereupon, the lower Court dismissed the said application, as against which this revision is focussed on various grounds. 4. The learned counsel for the petitioner reiterating the grounds of revision would develop his argument to the effect that the defendant was set ex parte only on paper publication and the suit summons was not served on him. On receipt of E.P notice only, the revision petitioner/defendant came to know about the suit and whereupon that application was filed. The lower Court without applying its mind on the facts concerned, simply dismissed the I.A. warranting interference by this Court. 5. Per contra, the learned counsel for the respondent/plaintiff would submit that the suit summons was served and along with that publication also was effected. However, the defendant failed to appear before the Court and participate in the proceedings. Absolutely there is no flaw in the order passed by the lower Court. Accordingly, he prays for the dismissal of the revision. 6. The point for consideration is as to whether the delay of 393 days could be condoned for the reasons as found set out in the affidavit accompanying the application under Section 5 of the Limitation Act? 7. A perusal of the order of the lower Court in I.A.No.20815 of 2008 is far from satisfactory. Without adverting to the relevant facts involved in the matter, simply the Court erroneously applied the law as though each and every days delay should be explained and on that basis dismissed the I.A. The learned counsel for the defendant would submit that no suit summons was served and only paper publication is claimed to have been effected. Without adverting to the relevant facts involved in the matter, simply the Court erroneously applied the law as though each and every days delay should be explained and on that basis dismissed the I.A. The learned counsel for the defendant would submit that no suit summons was served and only paper publication is claimed to have been effected. It is an admitted fact that the paper publication was effected, but the petitioner/defendant would claim that he had no knowledge of it. On the other hand, there is nothing to indicate that suit summons was served in person on the defendant, even though on the plaintiffs side it is claimed to be so. The lower Court has not given any finding based on objective evidence. 8. I am at a loss to understand as to why publication was ordered if really the suit summons was served by post, as claimed in the counter filed by the plaintiff. However, the trial Court has not at all adverted to any one of those facts and gave its findings as to whether suit summons was served in person or not. However, the affidavit of the revision petitioner would reveal that no suit summons was served and only on receipt of the EP notice he came to know about it. The negative aspect cannot be expected to be proved by the defendant. It is for the Court to give its finding on that after verifying Court records and if necessary, after entertaining evidence in that regard from the plaintiff, but that was not done so. 9. 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. 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 . ..........................." 10. 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) From the perusal of those two decisions it is clear that if the delay is more the Court should strictly view the same. 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) From the perusal of those two decisions it is clear that if the delay is more the Court should strictly view the same. On the other hand, if the delay is meagre, then a lenient view could be taken. No doubt, here there is a delay of 393 days which is on the higher side. Even then the plaintiff has failed to establish the fact that the suit summons was served in person on the defendant and the Court also has not given any finding in that regard. The suit itself is for recovery of money based on some business transaction. In such a case, I am of the view that one more opportunity could be given to the defendant to participate in the proceedings and that the delay could be condoned subject to payment of a cost of Rs.3,000/- (Rupees three thousand only) payable by the defendant to the plaintiff by 31st July 2010. On such payment of cost, the Court shall take up the I.A. to be filed under Order 9 Rule 13 of CPC and process it as per law. In the event of setting aside the ex parte decree, the Court shall see that entire suit is disposed of as per law within a period of two months thereafter. Accordingly, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.