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2011 DIGILAW 4808 (MAD)

V. Selvam v. V. Duraisamy

2011-12-14

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the order and decreetal order dated 24.8.2010 passed in I.A.No.113 of 2010 in O.S.No.166 of 2008 on the file of the Subordinate Judge, Perambalur. 2. The respondent filed the suit O.S.No.166 of 2008 for recovery of money based on promissory note. After service of summons in the suit on the defendant, the revision petitioner herein, the suit came to be decreed ex parte on 29.10.2008. Stating that the revision petitioner has no knowledge about the ex parte decree and after receipt of notice in execution petition, the revision petitioner filed the application I.A.No.113 of 2010 to condone the delay of 514 days in filing the application under Order 9 Rule 13 CPC to set aside the ex parte decree. This application was filed on 26.4.2010 stating that the revision petitioner, defendant was suffering from jaundice. 3. The said application was resisted by the respondent/plaintiff stating that the petition filed to condone the delay is not bona fide and material facts have been suppressed. More particularly, it was pointed out by the respondent/plaintiff that the very same revision petitioner/defendant filed an application in December, 2008 with a delay of 20 days and that has not been prosecuted. So the respondent/plaintiff pleaded that the date of knowledge as stated in the affidavit filed in support of the petition is false to the knowledge of the revision petitioner/defendant. To support the said plea, a copy of the application filed in December, 2008 by the revision petitioner was also enclosed along with the counter to I.A.No.113 of 2010. 4. The Court below considering the facts that the suit summons have been served; the revision petitioner failed to appear; the delay of 514 days is enormous and taking note of Ex.R1, the earlier petition filed in December, 2008 with a delay of 20 days, which was not prosecuted, came to the conclusion that the revision petitioner had knowledge of ex parte decree, as early as December, 2008 and there is no justification in filing the present petition in the year 2010. The filing of the earlier petition for condonation of delay of 20 days has been entered in CR 19 Register as SR No.3093 dated 19.12.2008. This fact has been suppressed in the present application, namely, I.A.No.113 of 2010. 5. The filing of the earlier petition for condonation of delay of 20 days has been entered in CR 19 Register as SR No.3093 dated 19.12.2008. This fact has been suppressed in the present application, namely, I.A.No.113 of 2010. 5. In view of the above, the Court below came to the conclusion that the delay has not been properly explained. There is suppression of facts and sufficient cause has not been shown to seek the discretionary remedy from the court to condone the delay. On the above stated finding and holding that the application filed for condonation of delay lacks bona fides and devoid of merits, the Court below dismissed the application. 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. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. 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. On going through the factual aspects of the case as mentioned above and the finding of the Court below which is referred to above, this Court finds no reason to interfere with the order of the Court below which is a well reasoned order and does not call for any interference. 8. Finding no merits, this Civil Revision Petition is dismissed at the admission stage. Consequently, connected miscellaneous petition is closed.