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2011 DIGILAW 4857 (MAD)

R. Madan Chand v. Rathan Chand (died)

2011-12-19

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the order and decreetal order dated 10.1.2011 passed in I.A.No.3094 of 2007 in O.S.No.55 of 1997 on the file of the District Munsif Court, Alandur. 2. Defendants 2 and 4 are the revision petitioners. The suit O.S.No.800 of 1982 on the file of the District Munsif Court, Poonamallee was filed by the deceased G.Rathanchand and R.Narendrakumar, the first respondent herein. The first plaintiff, the deceased G.Rathanchand died in the year 1997. The suit was filed for the relief of declaration in respect of certain properties and for permanent injunction. The suit was transferred to the District Munsif Court, Tambaram and renumbered as O.S.No.79 of 1993. Thereafter, the suit was again transferred to the District Munsif Court, Alandur and renumbered as O.S.No.55 of 1997. On 4.12.2001, the suit was decreed ex parte. Thereafter, the revision petitioners/defendants 2 and 4 filed I.A.No.3094 of 2007 under section 5 of the Limitation Act to condone the delay of 2007 days in filing the petition to set aside the ex pare decree. In that application, the revision petitioners state that they met their counsel on 22.4.2007 at Poonamallee and they came to know about the transfer of the suit to Tambaram and then to Alandur. They further state that they met their counsel on 2.6.2007 and 18.6.2007 and they engaged a new counsel on 19.6.2007. It is the new counsel who informed them that the suit has been decreed ex parte. 3. The application I.A.No.3094 of 2007 was resisted by the second plaintiff, the first respondent herein, stating that false affidavit has been filed, the delay has not been properly explained and the only reason given by the revision petitioners is the blame on the advocate for not informing them about the transfer of the suit from one court to another. 4. The learned District Munsif, considering the rival contention passed an order on 10.1.2011 dismissing the I.A.No.3094 of 2007. Challenging the same, the revision petition has been filed. 5. Learned counsel for the revision petitioners contended that on merits of the suit, there is enough material to show that fraud has been played by the plaintiffs and therefore, they should be given an opportunity to defend the suit. Challenging the same, the revision petition has been filed. 5. Learned counsel for the revision petitioners contended that on merits of the suit, there is enough material to show that fraud has been played by the plaintiffs and therefore, they should be given an opportunity to defend the suit. On the question of delay, the plea taken by the revision petitioners is that due to transfer of suit from one court to another, there was no proper communication between the counsel and the revision petitioners/defendants 2 and 4 and therefore, the delay had occurred. They were not aware of the ex parte decree. They believed their erstwhile counsel, who did not inform them about the ex parte decree in time. 6. The main reason given by the revision petitioners to condone the delay is on account of alleged lack of communication between the parties and the counsel. The revision petitioners have not been examined. No exhibits were marked, except the death certificate of the first plaintiff G.Rathanchand. There is no record to show that the revision petitioners contacted their erstwhile counsel from time to time and that he failed to inform them about the status of the proceedings. 7. The admitted fact in this case is that one Mr.M.K.Rangarajan, advocate, representing the defendants 2 and 4/revision petitioners has filed the written statement at the earliest point of time. Therefore, the revision petitioners/defendants 2 and 4 ought to have pursued the matter from time to time by contacting the said counsel. The court below refused to accept the plea of lack of communication by the counsel as a reason for the delay, holding that such a baseless allegation against the counsel cannot be a ground to condone the delay for which the following reliance was placed:- (1) Salil Dutta - vs. - T.M.and M.C.Private Ltd., reported in 1993(2) SCC 185 ; (2) C.Raghupathy - vs. - C.Govindan and others reported in 2009(3) MLJ 782 8. The Court below was also conscious of the fact that the revision petitioners are businessmen and therefore, they cannot plead ignorance. The court below also rejected the plea of delay due to ill-health of their child by holding that the suit was decreed ex parte in December, 2001 whereas the child said to be suffering from polio was born on 22.11.1981. The court below also rejected the plea of delay due to ill-health of their child by holding that the suit was decreed ex parte in December, 2001 whereas the child said to be suffering from polio was born on 22.11.1981. In any case, no material contemporaneous to the issue has been marked to show the difficulty expressed in taking care of the child and the consequent delay. The delay as stated in the affidavit cannot be accepted without proof. If such a plea is accepted then in every case such a plea will be taken without any basis. 9. The inordinate and unexplained delay of 2007 days that is equivalent to 5-1/2 years has not been properly explained. This court also does not find the reason given as convincing. The court below was justified in holding that the petitioners deliberately and negligently allowed the suit to be decreed ex parte and thereafter filed the petition after an inordinate delay of 2007 days (i.e.) 5-1/2 years without explaining the delay with proper material. Sufficient cause has not been given. The discretionary relief will not enure to the revision petitioners for their inaction. 10. 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. 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." 11. For all the above reasons, this Court finds no error or infirmity in the order of the court below dismissing the application filed for condonation of delay. This Court finds no good reason to interfere with the order of the court below 12. Finding no merits, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.