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2011 DIGILAW 4603 (MAD)

Gopimanjunath v. A. S. Prakash Rao

2011-11-23

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the order and decretal order dated 23.2.2011 passed in I.A.No.200 of 2010 in O.S.No.123 of 2004 by the District Munsif-cum-Judicial Magistrate, Denkanikottai. 2. The revision petitioner is the third defendant in the suit. The respondent is the plaintiff. The respondent filed the suit O.S.No.123 of 2004 for enforcement of the sale agreement dated 15.4.2002 executed by the first defendant who is none other than the father of the revision petitioner/third defendant. Suit summons were served on the first defendant and he received the suit summons for himself and on behalf of the other defendants as well. It is also stated in the judgment of the trial Court that in the absence of the revision petitioner/third defendant, the suit summons were served on the father. The fourth defendant was a minor and an application was filed and the court guardian was appointed. The suit was contested by the fourth defendant as the father remained ex parte and the defendants 2 and 3 also remained ex parte. The suit was decreed on 24.2.2006. 3. Thereafter, the revision petitioner/third defendant has filed application I.A.No.200 of 2010 under Section 5 of the Limitation Act to condone the delay of 1431 days in filing the application to set aside the decree dated 24.2.2006. I.A.No.200 of 2010 was dismissed by the Court below. Challenging the same, the Civil Revision Petition is filed. 4. In the application I.A.No.200 of 2010 to condone the delay of 1431 days, the plea taken by the revision petitioner/third defendant is that the property is an ancestral property and that the suit summons were not served on him. A detailed counter has been filed by the respondent/plaintiff opposing the application for condonation of delay. The I.A.No.200 of 2010 came to be dismissed holding that the suit summons were duly served on the father of the revision petitioner/third defendant as the revision petitioner/third defendant was not available at that time. No valid reason has been stated in the affidavit to condone the delay of 1431 days. 5. Mr.Subba Reddy, learned counsel appearing for the revision petitioner was asked to state as to the date when the revision petitioner came to be aware of the decree. No valid reason has been stated in the affidavit to condone the delay of 1431 days. 5. Mr.Subba Reddy, learned counsel appearing for the revision petitioner was asked to state as to the date when the revision petitioner came to be aware of the decree. He states that at the time of execution proceedings the revision petitioner came to know of the decree as against the revision petitioner and thereafter he filed the application. This contention is not stated in the affidavit filed in support of the petition I.A.No.200 of 2010 to condone the delay of 1431 days. In such view of the matter, the inordinate and unexplained delay of 1431 days cannot be casually accepted. 6. The recent decision of the Apex Court in Lanka Venkateswarlu (D) by Lrs. - vs. State of A.P. and others reported in 2011- 3-L.W. 26 has clearly held that all discretionary powers, especially, judicial powers, have to be exercised within reasonable bounds known to law. The Court does not enjoy unlimited and unbridled discretionary power. It also holds that "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation, especially, in cases where the Court concludes that there is no justification for the delay. Paragraphs 17 and 26 which is relevant is extracted hereunder:- "(17) .... Even though the Courts have power to condone the delay, it cannot be condoned without any justification. Such an approach would result in rendering the provisions contained in the Limitation Act redundant and inoperative." "(26) We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "Justice oriented approach", " substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. " 7. Insofar as the plea that no summons were served on the revision petitioner/third defendant is concerned, as has been rightly pointed out by Thiru Laksminarayanan, learned counsel for the respondent/plaintiff there cannot be any confusion as the address in the plaint, in the affidavit filed in I.A.No.200 of 2010 and in the Civil Revision Petition are one and the same and it reads as follows:- Address in the Plaint O.S.No.123 of 2004 #88/1, Nethaji Nagar, Mathigiri, HCF Post, Hosur Taluk 635 110 Address in I.A.No.200 of 2010 NethajiNagar, Mathigiri Hosur Cattle Farm Post, Hosur Taluk, Krishnagiri District Address in CRP No.1648 of 2010 NethajiNagar, Mathigiri, Hosur Cattle Farm Post, Hosur Taluk, Krishnagiri District If that be the case, the service of suit summons by the Court below on the father of the revision petitioner/third defendant in the absence of the revision petitioner/third defendant cannot be said to be contrary to the provisions of the Civil Procedure Code. 8. The revision petitioner has not explained the delay to show that he has no knowledge of the decree on 24.2.2006. The affidavit filed in support of the I.A.No.200 of 2010 is vague, bereft of details and casual in nature. The Court below is justified in dismissing the same. 9. The prejudice that may be caused to the respondent/plaintiff is larger than the prejudice pleaded by the revision petitioner/third defendant, particularly, in view of the fact that all other defendants none other than the father and brothers have accepted the decree. In such view of the matter, this Court is not inclined to interfere with the order of the court below. 10. In such view of the matter, this Court is not inclined to interfere with the order of the court below. 10. Finding no merits, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.