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2010 DIGILAW 3122 (MAD)

Ganesan v. Gopal

2010-07-28

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 03.09.2009 passed in I.A.No.83 of 2009 in O.S.No.208 of 2006 by the I Additional District Munsif Court, Bhavani, this civil revision petition is focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent/plaintiff herein filed the suit for partition. Even though the revision petitioners/defendants herein entered appearance, no written statement was filed, whereupon ex parte decree was passed. Subsequently, final decree application was filed by the plaintiff, whereupon notice was received by the revision petitioners herein. Even after receipt of the notice, no immediate steps have been taken to get the ex parte preliminary decree set aside. However, subsequently, application under Section 5 of the Limitation Act was filed to get the delay of 935 days condoned in filing the application to get the ex parte preliminary decree set aside. After hearing both sides, the lower Court, dismissed the application. Being aggrieved by and dissatisfied with the same, this revision has been filed on various grounds. 4. The learned counsel for the revision petitioners/defendants placing reliance on the grounds of revision would develop his argument which would be to the effect that the preliminary decree passed is ex facie and prima facie untenable, as a reasoned judgment was not pronounced; the revision petitioners could not prosecute the matter because the revision petitioner No.1/D5 was not well; he was only responsible for conduct of the case and as such, the delay might be condoned as otherwise, the revision petitioners/defendants world be put to irreparable loss. 5. Per contra, the learned counsel for the respondent/plaintiff would submit that even though the notice in the final decree application was served on the revision petitioners/defendants as early as on 13.02.2009, yet they had not chosen to file the application under Section 5 of the Limitation Act to get the delay condoned in setting aside the ex parte decree, but they have chosen to file only on 04.08.2009, so to say nearly six months after the receipt of the notice in the final decree application. There are laches on the part of the revision petitioners warranting no interference or indulgence of this Court. 6. There are laches on the part of the revision petitioners warranting no interference or indulgence of this Court. 6. The point for consideration is as to Whether there is any justification for condoning the huge delay of 935 days in filing the application to get the ex parte decree set aside? and whether the order of the lower Court has to be set aside? 7. At the outset itself I would like to refer to the ex parte judgment passed by the lower Court in O.S.No.208 of 2006 on 13th December 2006, which is far from satisfactory, as it was passed quite antithetical to and in violation of the circular of this High Court. The lower Court Judge passed such a cryptic order in a partition suit. Even if the defendants remain ex parte, it is the bounden duty of the Court to see that a reasoned judgment is passed. As such there is nothing to display and demonstrate that the lower Court applied its mind on the factual scenario of the case, but simply in one line, the Court observed as though the suit has to be decreed and a preliminary decree has to be passed. Such rendering of judgment in a partition suit is something that is against law. 8. No doubt as correctly pointed out by the learned counsel for the respondent/plaintiff, even after entering appearance in the final decree proceedings as early as on 13.02.2009, the revision petitioners/defendants had chosen to file the application under Section 5 of the Limitation Act only on 04.08.2009, so to say six months thereafter and that smacks the wilful negligence on the part of the revision petitioners/defendants. The affidavit of the revision petitioner No.1/D5 would reveal that he was suffering from jaundice and that he was responsible for the conduct of the case on his behalf and on behalf of D6 also. 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 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 . ..........................." 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. 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. 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. No doubt, if a strict view is taken, certainly the delay could not be condoned. However, the very ex parte judgment passed itself is defective and in a partition suit, necessarily the Court has to delve deep into the pros and cons of the matter and give a reasoned judgment, but that was not done so. In such a case, if the matter is allowed to be proceeded with in the final decree application, certainly it would lead to travesty of justice. As such, in my opinion, this is a singularly singular case warranting interference of this Court in the revision. Further more, health reason has been cited for getting the delay condoned also. Because of the inconveniences of the revision petitioners/defendants, the respondent/plaintiff should not be put to discomfiture and that latter should be compensated adequately. In my opinion, the lower Court has not adverted to all these facts set out supra. Hence, the order of the lower Court is set aside and the application is allowed subject to the condition that or before 10th August 2010 a sum of Rs.7,000/-(Rupees seven thousand only) should be paid by the revision petitioners in favour of the respondent/plaintiff. If there is default in payment of the cost, then this order will not enure to the petitioners. Consequent upon such compliance with the order of this Court, the application under Section 5 of the Limitation Act shall stand allowed and the lower Court is expected to number the application under Order 9 Rule 13 of CPC and dispose of the same within a week and in the event of setting aside the preliminary decree, the suit itself shall be disposed of within a period of three months thereafter. I also mandate that the revision petitioners/defendants should file the written statement even while arguing the application under Order 9 Rule 13 of CPC. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.