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2011 DIGILAW 4678 (MAD)

Komaran v. C. Subramaniam

2011-11-30

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the Order dated 16.9.2011 passed in I.A.No.1081 of 2011 in O.S.No.344 of 2008 on the file of the District Munsif Court, Kangeyam, Erode District. 2. The revision petitioners are the defendants 1 and 2. The respondent filed suit O.S.No.344 of 2008 for permanent injunction restraining the revision petitioners/defendants 1 and 2 from interfering with the enjoyment of respondents/plaintiffs easementory right in the suit ‘B’ schedule property by way of encroachment or putting hut in the said property. The suit was decreed ex parte on 28.7.2009. Thereafter, the respondent/plaintiff filed R.P.No.2 of 2011 for return of documents and notice was served on the revision petitioners/defendants. On 21.3.2011, the revision petitioners/ defendants appeared through counsel in the said petition. 3. Thereafter, on 25.4.2011, the revision petitioners/defendants filed an application under Section 5 of the Limitation Act by way of I.A.No.1081 of 2011 for condonation of delay of 630 days in filing the petition to set aside the ex parte order dated 28.7.2009. In the certified copy of the order it is stated that the delay is 605 days. The reason given by the first revision petitioner who filed the application is that he was suffering from jaundice for more than 1-1/2 years and was treated at Palacod in Kerala State. Therefore, he could not contact his advocate in time. Stating the aforesaid reason the application was filed by the first revision petitioner to condone the delay in filing the application under Order 9 Rule 13 CPC. 4. The said application was resisted by the respondent/plaintiff stating that the reason given by the first revision petitioner is vague and bereft of details as to the date on which he was fell ill, the date on which he recovered and the date on which he returned back from Palacod. 5. The Court below dismissed the said application rejecting the plea of suffering from jaundice stating that the revision petitioners have not furnished the details, viz., the date on which the first revision petitioner fell ill, the period upto which he was treated at Palacod. The Court below also held that notice in R.P.No.2 of 2011 was served and one advocate entered appearance on behalf of the revision petitioners on 21.3.2011. The Court below also held that notice in R.P.No.2 of 2011 was served and one advocate entered appearance on behalf of the revision petitioners on 21.3.2011. Even after appearance in R.P.No.2 of 2011, the revision petitioners did not take step to set aside the ex parte order for more than one month, which delay has also not been explained. Holding that the revision petitioners have not given sufficient cause for filing the application under Section 5 of the Limitation Act and the reason given is vague and bereft of details, the application was dismissed. Challenging the same, the revision petition is filed. 6. Except reiterating what has been stated in the affidavit in support of the petition filed under section 5 of the Limitation Act, the learned counsel for the revision petitioners is not able to convince the court that the order of the court below is erroneous and requires to be set aside. The reason given by the court below which has already been set out above coupled with the enormous delay of more than one year 9 months, which has not been properly explained with dates justifies the order. 7. One other factor that disentitles the revision petitioners for the relief is that the second revision petitioner is 35 years old as per the plaint. Therefore, he could have taken steps to prosecute the matter for and on behalf of the first revision petitioner said to be 60 years old. He has not filed an affidavit nor he has not given explanation as to why he has not attended the court. Even assuming without admitting that the first revision petitioner is suffering from jaundice what prevented the second revision petitioner to prosecute the matter has not been explained in the affidavit filed before the court in support of the application No.1081 of 2011. 8. 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. 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. 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. " 9. In view of the above, this Court does not find any good reason to interfere with the order passed by the court below dismissing the application. 10. Finding no merits, this Civil Revision Petition is dismissed at the admission stage.