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2011 DIGILAW 209 (MAD)

S. D. Muhaiah Gowder v. C. Marimuthu

2011-01-18

S.TAMILVANAN

body2011
JUDGMENT :- 1. This Civil Revision has been preferred challenging the order dated 19.1.2009 made in I.A No. 1258 of 2008 on O.S. No. 76 of 2004 on the file of the District Munsif Court, Sathyamangalam, Erode District. 2. The Petitioner herein was the Defendant in the Suit in O.S. No. 76 of 2004, that was filed by the Respondent herein in year 2000 before Subordinate Court, Gobichettipalayam seeking a money decree, based on a promissory note dated 10.1.1997 executed for a sum of Rs. 25,000/-. It is seen that on 6.9.2001, the Suit was decreed ex parte as there was no representation for the Petitioner/Defendant and the Petitioner/Defendant was also called absent, though the case was posted for trail in the special list, subsequently, the Petitioner herein filed a Petition under Order 9, Rule 13 of Civil Procedure Code to set aside the ex parte decree. After hearing both sides, on 14.11.2003 the ex parte decree was set aside by the said Court and the case was again taken on file. 3. On 19.2.2004, in view of the pecuniary jurisdiction statutorily raise, the case was transferred to District Munsif Court, Sathyamangalam and re-numbered as O.S. No.76 of 2004 on the file of the said Court. When the case was posted again for trail in the special list, there was no representation and the Petitioner/ Defendant was also called absent, hence again an ex parte decree was passed by the District Munsif Court, Sathyamangalam. Then, the Petitioner/Defendant filed a Petition under Order 9, Rule 13 of Civil Procedure Code to set aside the ex parte decree along with an Application under Section 5 of the Limitation Act to condone the delay of 844 days in filing the aforesaid petition. The Court below after hearing both sides allowed the Petition and also set aside the ex parte decree, then the case was again taken on file. On 7.9.2007, when the case was posted for trial, P.W.1 again taken on file, On 7.9.2007, when the case was posted for trial, P.W.1 was examined in chief and the case was posted on 14.9.2007, 18.9.2007 and 24.9.2007 for cross-examination of the said witness. On the side of the Petitioner/defendant there was a representation for settlement. Accordingly, the Court below granted time for settling the dispute at the request of the Petitioner/Defendant. 4. On the side of the Petitioner/defendant there was a representation for settlement. Accordingly, the Court below granted time for settling the dispute at the request of the Petitioner/Defendant. 4. Though the case was adjourned on 18.9.2007, 24.9.2007 and 3.10.2007, the learned Counsel appearing for the Petitioner/Defendant reported no instructions before the Court below and the Petitioner/Defendant was also called absent for the third time and again ex parte decree was passed. Aggrieved by which the Petitioner herein filed the Petition under Sections 5 of the Limitation Act to condone the delay of 347 days and also to set aside the ex parte decree. After hearing both sides, the Court below dismissed the Petition holding that there was no bona fide reason to condone the delay based on the conduct of the Petitioner/Defendant in dragging on the matter. The learned Counsel appearing for the Petitioner submitted that due to the ill health of the Petitioner’s wife, he could not prosecute the case and therefore, one more opportunity be given to the Petitioner/Defendant. 5. Per contra, the learned Counsel appearing for the Respondent submitted that there is no bonafide reason to condone the delay and allow the Petition filed under Section 5 of the Limitation Act. The learned Counsel for the Respondent also drew the attention of this court to the impugned order passed by the Court below wherein the Court has categorically stated that the impugned ex parte decree was passed on the third time and the Application had been filed casually by the Petitioner herein. Learned Counsel appearing for the Petitioner/Defendant has not disputed the fact that the Suit was originally pending before the Subordinate Court, Gobichettipalayam and ex parte decree was passed on 6.9.2001 and subsequently, the same was set aside on the Petition filed by the Petitioner under Order 9, Rule 13 of Civil Procedure Code and subsequently, the suit was transferred to the District Munsif Court, Gobichettipalayam and when the case was posted in the special list again the Petitioner remained absent and ex parte decree was passed. However, the Petitioner herein filed a Petition under Section 5 of the Limitation Act to condone the delay of 844 days in filing the Petition, to set aside the ex parte decree and that was also allowed on terms. However, the Petitioner herein filed a Petition under Section 5 of the Limitation Act to condone the delay of 844 days in filing the Petition, to set aside the ex parte decree and that was also allowed on terms. However, again the Suit was decreed ex parte due to the non-appearing for the Respondent drew the Petitioner/Defendant, Learned Counsel appearing for the Respondent drew the attention for this Court to the copy of the Affidavit filed in support of the Application filed in I.A. No.1259 of 2008, wherein the Petitioner has stated that his wife was admitted in a hospital and due to financial difficulties, he could not contest the case. Hence, he could not appear on 3.10.2008. The aforesaid reason was not acceptable, since the Petitioner who had been absent and left the Suit for ex parte decree for about three times. As contended by the learned Counsel appearing for the Respondent, the first ex parte decree was passed in the year 2001, nearly ten years prior to this date. 6. Learned Counsel for the Petitioner drew the attention of this Court to the decisions rendered by this Court in Ranganatha Iyengar v. Thangarasu, 2008 (5) CTC 628; and Reliance Industries Ltd., rep, by Reliance Consultancy Services Lted. V. M. Rajkumari, 2002 (1) CTC 157. In Sri Veera Hanuman Rice & Flour Mill v. State Bank of India , 2000 AIR SCW 2575, were in the Honorable Apex Court has held that while indulgence should be shown in considering claims of parties, there would be no justification to ignore the subsequent facts and the realities of the situation. In spite of the fact that Law of Limitation may sometimes harshly affect a particular party, while considering the matters that fall under Section 5 of the Limitation Act, discretion has to be exercised cautiously only in the interest of justice. Hence, mechanically, any unreasonable, unexplained inoridinate delay cannot condones. This Court in the decision reported in Ranganatha Iyengar v. Thangarasu, 2008(5) CTC 628, has held that in a case where ex parte decree the delay of 532 days in filing the Application under Section 5 of the Limitation Act as unjustifiable, as the inordinate delay was not satisfactorily explained by the Petitioner therein. Similarly, in the decision reported in Reliance Industries Ltd, rep. Similarly, in the decision reported in Reliance Industries Ltd, rep. by Reliance Consultancy Service Ltd. V. M. Rajkumari, 2002 (1) CTC 157, learned Single Judge (Prabha Sridevan, J relying on the decisions reported in Balakrishnan v. H. Krishnamurthy, 1998 (7) SCC 123 and Indian Oil Corporation Ltd v. Mrs. Sakuntala, Ganapathy Rao, 1998 (3) CTC 170 dismissed the Revision Petition on the ground that the delay of 421 days was not satisfactorily explained by the Petitioner therein. A Division Bench of this Court in Indian Oil Corporation Ltd. V. Mrs. Sakuntala Ganapathy Rao, 1998 (3) CTC 170 , has held as follows: “The period for preferring an Appeal cannot be extended simply because the Appellants case is hard and calls for sympathy, nor will the Courts extend the period of limitation merely out of benevolence to the party seeking relief. A Court granting indulgence must be satisfied that there was diligence on the part of the Appellant and that he was not guilty of any negligence what so ever. Of course, Court should not be too strict as it might well defeat the ends of justice. Where there is no sufficient for condoning the delay having regard to the position of the party that too, when it is a corporation having assistance of best of men to conduct its affairs should not be condoned as it amounts to a case of discretion not being exercised judicially. If there is no support by any evidence adduced for delay, the Application therefore ought to be rejected. The word sufficient cause cannot be construed liberally merely because the party in default is the Government or an institution. In order to take a practical view of the working of a Government or an institution to the slow motion process of its occurred and the reasons for such delay. In the absence of satisfactory explanation of the delay by the institution the delay need not be condoned. Sufficient cause must be a cause which is beyond the control of the party invoking the aid of the Section. A cause for delay, which a party could have avoided by the exercise of due care and attention cannot be a sufficient cause.” 7. It cannot be disputed that the Court should decide the Petitions filed under Section 5 of the Limitation Act liberally if the delay is not inordinate and the same is satisfactorily explained. A cause for delay, which a party could have avoided by the exercise of due care and attention cannot be a sufficient cause.” 7. It cannot be disputed that the Court should decide the Petitions filed under Section 5 of the Limitation Act liberally if the delay is not inordinate and the same is satisfactorily explained. However, if the delay is inordinate and the party seems to protract the proceeding by way of filing Petitions to set aside the ex parte decree in a money suit second time or third time which cannot be construed liberally by any court, while deciding the Petition. 8. In the instant case, it is seen that the Petitioner/Defendant had left the suit for passing ex parte decree and subsequently filed a Petition to set aside the ex parte decree and that was allowed and second time an ex parte decree was passed and a Petition was filed with delay of 844 days in filing the Petition to set aside the ex parte decree, that was also liberally considered by the Court below. However, the Petitioner left the Suit again for ex parte of 347 days. I could find there is no justification on the part of the Petitioner/Defendant for leaving the Suit for ex parte decree for the third time as held by the Court below and the reason assigned by the Petitioner in the affidavit is also legally not acceptable. On the aforesaid facts and circumstances, I am of the view that there is no error or material irregularity on the part of the Court below in dismissing the Petition filed by the Petitioner and accordingly, the Revision is liable to be dismissed. 9. In the result, the Civil Revision Petition is dismissed, confirming the orders passed by the courts below. The connected Miscellaneous Petition is closed. No order as to costs.