Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 2330 (MAD)

Babulal Surana v. Varalakshmi

2011-04-25

S.TAMILVANAN

body2011
Judgment :- 1. Heard both the learned counsel appearing for the petitioners as well as the respondent. 2. C.R.P.(NPD).No.667 of 2010 is preferred by the petitioners, who are the defendants 9 and 10 in the suit in O.S.No.2181 of 1996 on the file of the Court below. The revision has been filed, challenging the order, dated 10.09.2009 made in I.A.No.16 of 2009 in I.A.No.11 of 2007 in O.S.No.2181 of 1996 on the file of the Additional District Court / Fast Track Court No.I, Chennai. C.R.P (NPD).No.669 of 2010 is preferred by the petitioners, challenging the order, dated 10.09.2009 made in I.A.No.15 of 2009 in I.A.No.11 of 2007 in the aforesaid suit on the file of the Court below. 3. It is seen that the Interlocutory Application in I.A.No.15 of 2009 was filed under Section 5 of Limitation Act to condone the delay of 711 days to restore another Interlocutory Application in I.A.No.11 of 2007, that was dismissed for default on 16.07.2007 by the Court below. The Interlocutory Application in I.A.No.11 of 2007 was filed by the petitioners, originally on 24.03.2007 to set aside an exparte decree, dated 22.03.2007 passed in the suit in O.S.No.2181 of 1996 on the file of the Court below. 4. It is seen that the suit in O.S.No.2181 of 1996 was filed by the respondent herein as plaintiff in the suit against the petitioners herein and 8 other persons, seeking partition of 1/6th share in the plaint schedule mentioned property and other consequential reliefs. 5. Learned counsel appearing for the petitioners submitted that the petitioners herein who were arrayed as defendants 9 and 10 had purchased the property on 12.09.1996 from the defendants 1 to 7. However, it is brought to the notice of this Court that the suit was filed in the year 1994, therefore, it is made clear that the alleged sale transaction took place subsequent to the filing of the suit. Since all the defendants were set exparte, after service of summons, the Court below passed a preliminary decree of partition on 23.03.2007. It is seen that the respondent had examined herself as P.W.1, apart from marking Exs.P.1 to P.6 before the Court below to establish her claim of 1/6th share in the property. 6. Since all the defendants were set exparte, after service of summons, the Court below passed a preliminary decree of partition on 23.03.2007. It is seen that the respondent had examined herself as P.W.1, apart from marking Exs.P.1 to P.6 before the Court below to establish her claim of 1/6th share in the property. 6. Learned counsel appearing for the respondent submitted that the respondent is a senior citizen, aged about 72 years and that the petitioners alleged to be subsequent purchasers, cannot claim any right, more than the right that was available to their vendor. Even the defendants 1 to 7 said to have been executed the sale deed, remained absent before the Court below and they have not filed any petition to set aside the exparte decree, in spite of service of summons. 7. It is seen that the petitioners herein as D9 and D10 filed an application on 24.03.2007 under Order 9 Rule 9 CPC to set aside the exparte decree, dated 22.03.2007, however, that was dismissed for default. Subsequent to that the petitioners filed another Interlocutory Application in I.A.No.15 of 2009 under Section 5 of Limitation Act to condone the inordinate delay of 711 days, in filing an application to restore the Interlocutory Application in I.A.No.11 of 2007, that was dismissed for default on 16.07.2007. 8. Learned counsel appearing for the petitioners submitted that the Court has to have liberal approach in deciding a petition filed under Section 5 of Limitation Act. In support of his contention, the learned counsel relied on the following decision : 1. Collector, Land Acquisition, Anantnag vs. Katiji, AIR 1987 SC 1353 2. Balakrishnan, N vs. M.Krishnamurthy, 1998 (II) CTC 533 3. Ram Nath Sao @ Ram Nath Sahu vs. Gobardhan Sao, 2002 (1) CTC 769 4. State of Nagaland vs. Lipok AO, 2005 (3) SCC 752 5. Vijaya vs. M.Selvaraj, 2010-3-LW 658 6. P.Deivsaigamani vs. Asha Siraj, 2010-3-LW 643 9. In Collector, Land Acquisition, Anantnag vs. Katiji, reported in AIR 1987 SC 1353 , the Hon'ble Supreme Court has held as follows : "3. The legislature has conferred the power to condone delay by enacting S.5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The legislature has conferred the power to condone delay by enacting S.5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts..." 10. It is not in dispute that while deciding a petition filed under Section 5 of Limitation Act, the Court should have liberal approach and has to consider substantial justice. The Court cannot expect that every days delay must be explained by taking pedantic approach and it has to be decided with rational common sense and with pragmatic manner. 11. In Balakrishnan, N vs. M.Krishnamurthy, reported in 1998 (II) CTC 533, the Hon'ble Supreme Court has held that the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice and it has been further held as follows : "14. 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 put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. " 12. In The State of West Bengal vs. The Administrator, Howrah Municipality and others, reported in 1972 (1) SCC 366 , the Hon'ble Supreme Court has interpreted "sufficient cause" under Section 5 of Limitation Act as follows : "While considering the scope of the expression "sufficient cause" within the meaning of Section 5 of the Act, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party." 13. The aforesaid decisions of the Hon'ble Apex Court would emphasise that as per Section 5 of Limitation Act, it is the duty of the party to satisfactorily explain the delay and the Court while deciding the same should also consider the concept of substantial justice, based on the materials available. The aforesaid decisions of the Hon'ble Apex Court would emphasise that as per Section 5 of Limitation Act, it is the duty of the party to satisfactorily explain the delay and the Court while deciding the same should also consider the concept of substantial justice, based on the materials available. In other words, dismissal of a petition filed under Section 5 of Limitation Act shall not lead to failure of substantial justice. 14. In the instant case, admittedly, the respondent herein had filed the suit, seeking partition of 1/6 th share and the suit was filed in the year 1994. Even according to the revision petitioners / defendants 9 and 10, they purchased the property from some of the defendants, namely defendants 1 to 7 on 12.09.1996, only subsequent to the filing of the suit and therefore, lis pendens is applicable. All the defendants, including the revision petitioners herein were set exparte and exparte decree was passed on 22.03.2007. Subsequently, the petitioners alone have filed an application under Order 9 Rule 9 CPC along with an application under Section 5 of Limitation Act to condone the delay of 711 days to restore the Interlocutory Application in I.A.No.11 of 2007, that was dismissed for default. In fact, the I.A.No.11 of 2007 had been filed by the petitioners to set aside the exparte decree, however, that was dismissed for default and to restore the application, another Interlocutory Application was filed with a delay of 711 days. 15. Learned counsel appearing for the petitioners submitted that both the petitioners were arrested in connection with a criminal case, hence, they could not file the petition in time. Admittedly, the petitioners have not filed any supporting documents before the Court below to justify the delay of 711 days. The learned counsel further contended that the petitioners were detained under Act 14 of 1982. Admittedly, they were not detained for 711 days, therefore, considering the impugned order, this Court is of the view that the petitioners have not satisfactorily explained the delay and hence, the Court has to consider whether the dismissal of this revision would lead to failure of substantial justice. Admittedly, they were not detained for 711 days, therefore, considering the impugned order, this Court is of the view that the petitioners have not satisfactorily explained the delay and hence, the Court has to consider whether the dismissal of this revision would lead to failure of substantial justice. Even after filing an application to set aside the exparte decree, it is seen that the petitioners have not prosecuted subsequently, that is why the Interlocutory Application in I.A.No.11 of 2007 was dismissed and subsequently, they filed another application in I.A.No.16 of 2009, to restore the same along with an application to condone the delay of 711 days. Admittedly, the petitioners have not filed their alleged sale deed before the Court below. Even as per the case of the petitioners, the sale deed was executed by the defendants 1 to 7, while the suit was pending before the Court below. 16. According to the learned counsel appearing for the respondent, pursuant to the preliminary decree, final decree application was filed by the respondent herein and Advocate-Commissioner was appointed to effect partition, based on the report filed by the Advocate-Commissioner, though the respondent is a senior citizen, aged about 72 years, the petitioners are protracting the case, which is an abuse of process of Court. 17. The aforesaid factual aspects are not in dispute and hence, this Court is of the view that the dismissal of these civil revision petitions would not lead to failure of substantial justice. It is clear that the defendants 1 to 8 have not filed any petition to set aside the exparte decree, challenging the 1/6th share allotted in favour of the respondent / plaintiff, as per the preliminary decree and further, the alleged sale deed was not produced by the revision petitioners before the Court below, at least to claim that they purchased the property. Even as per the case of the petitioners, the alleged sale deed was executed only subsequent to the filing of the suit on 12.09.1996. 18. The Interlocutory Application filed under Order 9 Rule 9 CPC was dismissed, however, the petitioners filed a petition to restore the same with an application to condone the inordinate delay of 711 days to restore the Interlocutory Application in I.A.No.11 of 2007, which show that there was lethargic attitude in part of the petitioners and there is no bonafide reason available to condone the delay. 19. 19. I am of the view that a liberal approach in this revision will lead to failure of substantial justice, as the petitioners are entitled to protract the proceedings, without any justifiable reason against the rights of the respondent, a senior citizen, aged about 72 years. 20. On the facts and circumstances and also on the available materials on record, I am of the view that the revision petitions are liable to be dismissed, to prevent the abuse of process of law and to meet the ends of justice. 21. In the result, both the Civil Revision Petitions are dismissed. Consequently, connected miscellaneous petitions are also dismissed. No order as to costs.