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2010 DIGILAW 4684 (MAD)

Selvaraj v. R. Paulraj

2010-10-22

V.PERIYA KARUPPIAH

body2010
Judgment :- 1. This revision petition has been filed by the petitioner against the order of dismissal passed by the lower Court in I.A.No.334 of 2010 in O.S.No.154 of 2006 dated 22.06.2010, an application to condone the delay in re-presenting the application to condone the delay caused in filing the petition to set aside the exparte decree along with the said petition. 2. Heard M/s.G.Rajan, the learned counsel for the petitioner and Mr.P.M.Duraisamy, the learned counsel for the respondent/caveator. 3. The learned counsel for the petitioner would submit in his argument that the petitioner was figuring as defendant in the suit filed by the respondent, for specific performance of an agreement of sale and since the petitioner was affected by jaundice, he could not contact his counsel from 01.10.2007 to 15.01.2008. In the meanwhile, paper publication was ordered against the petitioner and the exparte decree was also passed against him. He would further submit in his argument that the petitioner came to know about exparte decree, when he recovered from his illness and in the meanwhile, a delay of 44 days had been caused in filing an application to set aside the exparte decree and he filed the same immediately along with an application to condone the delay caused therein. He would also submit that the petitioner could not thereafter, contact his counsel for the said reason of illness and when he received a notice in E.P.No.210 of 2001, in which, he has instructed his counsel to file vakalat and at that time, when he enquired his counsel about the application filed by him to condone the delay in setting aside the exparte decree, the counsel for the petitioner told the petitioner that the application was returned for certain reasons and mixed up with some other papers of his office and the counsel for the petitioner was also hospitalised for a surgery in connection with the removal of gallbladder due to Cancer and it was not the fault of the petitioner in not representing the said application in time. Therefore, it has to be condoned by the lower Court, on re-presentation of the said applications with the application for condonation. He would also submit in his argument that the petitioner being a litigant, should not to be prejudiced by any dis-ability or mistake or omission of his counsel, who was also affected by Cancer. Therefore, it has to be condoned by the lower Court, on re-presentation of the said applications with the application for condonation. He would also submit in his argument that the petitioner being a litigant, should not to be prejudiced by any dis-ability or mistake or omission of his counsel, who was also affected by Cancer. He would further submit that the condonation of delay in representation is a matter between the Court and the petitioner and the respondent has got several opportunities to raise his contentions in the application to condone the delay in filing the application to set aside the exparte decree and in the application to set aside the exparte decree, if the condonation was ordered. He would also submit that the petitioners right may not be shut by the Court at the initial stage by refusing to condone the delay in representation. Therefore, he would request the Court to interfere and set aside the order passed by the lower Court and the revision may be allowed with suitable conditions. 4. The learned counsel for the respondent would submit in his argument that the delay caused in re-presenting the petition to condone the delay with the application to set aside the exparte decree was deliberate and lengthier and the reasons submitted by the petitioner cannot be accepted. The lower Court had promptly rejected the claim of the petitioner, since he filed an application, after five months from the date of his appearance before the execution Court and therefore, there is no bona-fide in the claim of the petitioner. He would further submit in his argument that the respondent is an old man aged 75 years and he was prolonged to see the fruits of the decree by filing these applications, which is wilful. Therefore, the learned counsel for the respondent would request the Court that the order passed by the lower Court may not be interfered and set aside. 5. I have given my anxious thoughts to the arguments advanced on either side. The fact remains that the lower Court did not consider the applications filed by the petitioner seeking for condonation of delay of 666 days caused in re-presentation of the applications filed by the petitioner for condonation of 44 days delay in filing the application to set aside the exparte decree along with an application to set aside the exparte decree. The fact remains that the lower Court did not consider the applications filed by the petitioner seeking for condonation of delay of 666 days caused in re-presentation of the applications filed by the petitioner for condonation of 44 days delay in filing the application to set aside the exparte decree along with an application to set aside the exparte decree. The petitioner has let in evidence on his side towards the proof of the allegations made in the affidavit. Ex.A1, Doctor certificate was produced for the illness of Jaundice from 01.10.2007 to 15.01.2008. However, the lower Court had found that it has nothing to do with the condonation of delay caused thereafter. The reason putforth by the petitioner would be that his application filed for the condonation of delay of 44 days in filing the application to set aside the exparte decree along with the application to set aside the exparte decree were returned and they were mixed up with the some other papers of advocates office and the advocate appeared for him took ill and was operated for gallbladder Cancer and therefore, the delay has been caused in representation of those petitions. It is a settled principle that a litigant cannot be prejudiced by an act or omission of his counsel, when the litigant was not at default. 6. No doubt, it is true that the present application for re-presentation was filed after he entered appearance in the execution petition. It has been explained that the applications which were presented in time were returned and were taken by his counsel and were mixed with the papers at the advocates office could be traced and found in the office after entering appearance in the E.P. But, the said explanation was not accepted by the lower Court. 7. According to the submissions of the learned counsel for the petitioner, the condonation of delay is in re-presentation only and it is an administrative act and no notice is necessary for the respondent. Therefore, he would submit that it is the matter in between the petitioner and the Court and as far as the present case is concerned, the judgment of this Court reported in 2002 (3) CTC 22 in between Bhuvaneswari v. R.Elumalai would be applicable. The relevant passage he relied upon would be thus:- "14. Therefore, he would submit that it is the matter in between the petitioner and the Court and as far as the present case is concerned, the judgment of this Court reported in 2002 (3) CTC 22 in between Bhuvaneswari v. R.Elumalai would be applicable. The relevant passage he relied upon would be thus:- "14. The time granted by the Court for the representation of the plaint, is only an administrative order and not a judicial order, and as such, if there is any delay in the representation of the plaint, an application to excuse the said delay could be filed under Section 151, CPC and it need not necessarily be the one under Section 148, CPC. In fact, Section 151 CPC is an omnibus provision available in the code to make suitable orders, which was filed under Section 151, CPC would have been allowed by the Trial Court. Even otherwise, the substance of the petition is more important than the form. Mere quoting of the provision wrongly, is not fatal to the petition itself. In that view of the matter also, the Trial Court could have allowed the said petition in excusing the delay in representation of the plaint." 8. As far as the present case is concerned, the lower Court had ordered notice to the other side and received their objections and heard both and passed an order of dismissal. The lower Court had considered that the notice is necessary to be issued to the respondent in order to adjudicate the claim of condonation of delay in the presence of respondent. 9. Yet another judgment of this Court reported in 2004 (3) MLJ 607 in between Muthusamy (died) and others v. Ammasi alias Muthu Gounder and others was relied upon by the learned counsel for the petitioner. The relevant passage would be thus:- "There was a delay of 117 days in re-presenting the appeal papers, to condone which, I.A.No.170 of 1996 was filed and it was dismissed by the Sub-Court, Sankari. It is that order which is in challenge in this revision. In view of the judgments of this Court in the cases reported in 1978 T.N.L.J.332 and 1993 T.N.L.J.375, to the effect that, in matters like this, no notice need be sent to the party in opposition the approach of the learned Sub-Judge in refusing to condone the delay is erroneous. In view of the judgments of this Court in the cases reported in 1978 T.N.L.J.332 and 1993 T.N.L.J.375, to the effect that, in matters like this, no notice need be sent to the party in opposition the approach of the learned Sub-Judge in refusing to condone the delay is erroneous. Consequently, the impugned order is set aside and the revision is allowed." 10. However, another judgment of a Division Bench of this Court reported in 1993 TLNJ 375 in between Y.Cusbar v. K.Subbarayan has been relied upon by the learned counsel for the petitioner for the principle that the delay in re-presentation should have been construed liberally for the justice does not suffer in such cases and in cases where un due delay is found it could be compensated by awarding cost. It has been categorically held as follows:- "This is not a case where-in the appeal has been filed out of time. This is a case in which the appeal is filed in time. Therefore, it cannot be said that the decree under appeal has assumed finality and the right has been accrued to the respondent. The delay in representation of the papers in the instant case, cannot be put to the account of the party. Several times, it happens due to the mistake on the part of the advocates clerk or the advocates in presenting the appeal. Therefore, the Court has to take care to see that the justice does not suffer in such cases. If there is any undue delay in representation of the papers it can be compensated by awarding costs. Therefore, we are of the view that when the appeal has been filed in time, but there is inordinate delay in representation of the papers returned for rectification of the defects, by the appellate Court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs." 11. The aforesaid dictum laid down by the Bench of this Court that the re-presentation of delay should have been considered liberally, in order to do substantial justice, even if the principles laid down for condonation of delay under Section 5 of limitation Act, are applicable to the condonation of delay in re-presenting the papers before the Court. 12. The aforesaid dictum laid down by the Bench of this Court that the re-presentation of delay should have been considered liberally, in order to do substantial justice, even if the principles laid down for condonation of delay under Section 5 of limitation Act, are applicable to the condonation of delay in re-presenting the papers before the Court. 12. It is the dictum of the Honble Apex Court reported in 1998(7) SCC 123 in between N.Balakrishnan v. M.Krishnamurthy which lays the principle that liberal construction should have been advanced in condoning the delay for rendering substantial justice, when there is no negligence, inaction or laches are imputable upon the person, who is seeking for condonation. The relevant passage would run thus:- "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court to consider the cause shown for the delay afresh and it is open to such superior Court to condone to come to its own finding even untrammeled by the conclusion of the lower Court. 10. The reason for such a different stance is thus: The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period by put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakunthala Devi Jain v.Kuntal Kumari and State of West Bengal v. Administrator, Howrah Municipality." 13. As far as the present case is concerned, the petitioner had shown to the Court that he was affected by Jaundice to a certain period. He had spoken to the effect that his counsel was operated for gallbladder removal due to Cancer. It is the duty of the counsel acting on behalf of the litigant to take the returned papers and to re-present them properly within time. The said papers would not be available to the petitioner for re-presenting the same. He had spoken to the effect that his counsel was operated for gallbladder removal due to Cancer. It is the duty of the counsel acting on behalf of the litigant to take the returned papers and to re-present them properly within time. The said papers would not be available to the petitioner for re-presenting the same. In the said circumstance, the duty cast upon the counsel appearing for the petitioner had defaulted in re-presentation by mixing the papers with other papers. It cannot be found as a negligence imputable on the part of the petitioner. Therefore, the negligence, stated to have been committed by the counsel who was also under dis-ability, cannot be imputed against the petitioner and thereby, he should not be prejudiced. Therefore, this Court could find that the lower Court has not exercised its discretion properly in adjudicating the condonation of delay caused in re-presentation of papers. Therefore, the order passed by the lower Court is liable to be interfered and set aside. However, the inconvenience caused to the respondent cannot be simply brushed aside and it has to be necessarily compensated. Therefore, a sum of Rs.2,000/-(Rupees Two Thousand Only) is ordered to be paid towards compensation for the respondent. 14. For the foregoing discussions, this revision petition is allowed on payment of cost of Rs.2,000/- (Rupees Two Thousand Only) within a period of one week from today, by the petitioner to the respondent or respondents counsel. In default to pay such amount within a such period, the aforesaid order passed along with the revision shall stand dismissed without any further reference to his Court. In the event of the revision being allowed and the delay caused in re-presenting the papers condoned, the application filed by the petitioner to condone the delay of 44 days in filing the application to set aside the exparte decree has to be numberred and disposed of within a period of one month from the date of receipt of a copy of this order. 15. In the result, the revision petition is ordered accordingly. No order as to costs. Consequently, connected miscellaneous petition is closed.