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2011 DIGILAW 4665 (MAD)

Syed Kasim v. Syed Amir

2011-11-29

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the order dated 24.4.2009 passed in I.A.No.38 of 2009 in O.S.No.915 of 1994 on the file of the District Munsif, Gudiyattam. 2. Respondent filed the suit O.S.No.915 of 1994 for specific performance of an agreement of sale of 6 cents out of 38 cents in Bojanapuram village. The agreement is dated 20.10.1993. The suit was filed on 31.12.1994. The trial commenced in June, 1999 and the plaintiff was cross examined by the revision petitioner/defendant in December, 1999. From 15.12.1999, the suit was adjourned for defendants side evidence. On 4.9.2000 one Mr.P.Sambandamurthy, a new counsel entered appearance on behalf of the revision petitioner/defendant. Thereafter, the ex parte decree was passed on 16.10.2000. Execution Petition No.68 of 2009 was filed in June 2009. 3. The revision petitioner/defendant filed I.A.No.38 of 2009 to condone the delay of 2823 days in filing the application to set aside the ex parte decree. This interlocutory application was filed on 12.1.2009. On contest, the I.A.No.38 of 2009 came to be dismissed finding that the plea of the defendant/revision petitioner that he could not pursue the matter due to death of his counsel and due to his ill-health lacks bona fide as the defendant was duly represented by a counsel, who cross examined the plaintiff in the month of December, 1999 and there was also a change of counsel subsequently proving that the defendant was well aware of the proceedings. The Court below did not accept the plea of ill-health in the absence of material document and concluded that the delay of 2823 days (i.e.) almost eight years has not been supported by any reasons whatsoever. 4. 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. 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. 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. " 5. Further more in this case, the sale deed has been executed by the Court below on 28.7.2009 consequent to the order passed in E.P.No.68 of 2009. It is stated that the respondent/plaintiff has already constructed a house and living there. 6. One other factor which can be considered in this case is that the respondent/plaintiff is none other than the brother of the revision petitioner. It is, therefore, clear that the revision petitioner/defendant who was fully aware of the proceedings has not pursued the proceedings diligently. The court below is justified in dismissing the petition as the enormous delay and laches was not properly explained. This revision petition was also filed with a delay of 328 days. It is, therefore, clear that the revision petitioner/defendant who was fully aware of the proceedings has not pursued the proceedings diligently. The court below is justified in dismissing the petition as the enormous delay and laches was not properly explained. This revision petition was also filed with a delay of 328 days. Hence, this Court is not inclined to interfere with the order passed by the Court below. 7. Finding no merits, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.