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2012 DIGILAW 1857 (MAD)

True Value Homes India (P) Ltd. v. T. Kumar

2012-04-11

G.RAJASURIA

body2012
JUDGMENT 1. Animadverting upon the order dated 08.06.2011 passed by the learned Principal Sub Judge, Chengalpattu in I.A.No.200 of 2010 in O.S.No.349 of 2006, this civil revision petition is focussed. 2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The first respondent/plaintiff filed the suit for partition as against seven defendants, so to say, R2 to R7 and the petitioner/D7 herein. It so happened that the revision petitioner/D7 filed Vakalat, but thereafter, written statement was not filed. In the meanwhile it appears, D1 to D6 submitted to decree; whereupon the decree was passed. Subsequently, the revision petitioner herein being D7, filed I.A.No.200 of 2010 for getting the delay of 368 days condoned in filing the petition to get set aside the ex parte decree, on the main ground that the D7-Company shifted its office from the then existed building to a new building and after getting repaired the old building they shifted back to that building and at that time, they were in receipt of notice of the final decree proceedings, which galvanised them to swing into action and find out what had all happened in the meanwhile. 4. According to the revision petitioner which being a Private Limited Company, its Law Officer left their Company high and dry so far this litigation is concerned. In the said application for getting the delay condoned, notice was sent by the lower Court for nothing but to be not responded to positively by the respondents therein which resulted in the ultimate dismissal of the application after hearing the petitioner/D7 only. 5. Being aggrieved by and dissatisfied with the said order of dismissal, this revision has been filed on various grounds. 6. The learned counsel for the petitioner/D7 placing reliance on the grounds of revision would put forth and set forth his arguments, a thumb nail sketch of the same would run thus: The lower Court dismissed the said application on the ground that the averments in the affidavit of the Managing Director accompanying the said petition were not proved. 6. The learned counsel for the petitioner/D7 placing reliance on the grounds of revision would put forth and set forth his arguments, a thumb nail sketch of the same would run thus: The lower Court dismissed the said application on the ground that the averments in the affidavit of the Managing Director accompanying the said petition were not proved. Further more, the Court also had in mind as to how D7 could get the decree passed on the submission made by D1 to D6, even though in expressed words that reason was not found cited as one of the reasons for dismissing the application. 7. The learned counsel for the petitioner would also incidentally point out the seriousness of this case by narrating that the plaintiff as well as D2 to D6 therein executed the sale deeds in favour of the D7-Company selling the entire suit property. According to him, the very said suit filed by the plaintiff as against D2 to D6 for partition was nothing but a make believe one so as to deprive D7 to enjoy the fruit of the sale deeds which it obtained from them. 8. Per contra, in a bid to torpedo and pulverise and make mince meat of the arguments on the side of the revision petitioner, the learned counsel for the first respondent/plaintiff would pilot his arguments, the pith and marrow of the same would run thus: There is no reason much less valid reason for getting the delay condoned. Mere change of address cannot be construed as sufficient reason for condoning such huge delay. A Company was expected to be diligent in pursuing the litigation. For more than a year, the Company did not take any steps to participate in the proceedings after filing Vakalat. It is not as though the Company was not served with suit summons. After filing of Vakalat, the Company simply slept over the matter which tantamounts to laches on the part of them, which would dis-entitle them from getting any sympathy from this Court. There is nothing wrong in the lower Court's order. Accordingly, the learned counsel for the first respondent/plaintiff would pray for the dismissal of the revision petition. 9. After filing of Vakalat, the Company simply slept over the matter which tantamounts to laches on the part of them, which would dis-entitle them from getting any sympathy from this Court. There is nothing wrong in the lower Court's order. Accordingly, the learned counsel for the first respondent/plaintiff would pray for the dismissal of the revision petition. 9. The point for consideration is as to whether the delay of 368 days could be condoned, so as to enable the petitioner to file a petition under Order 9 Rule 13 of CPC to get the exparte decree set aside as against D7? 10. It is a run of the mill proposition that the delay should not be condoned as a matter of course, if done so, that would embolden the litigants to participate in the litigative process by fits and starts, which ultimately that would result in chaos. 11. The learned counsel for the first respondent/plaintiff, would cite the decision of this Court reported in (2003) 3 MLJ 709 [A.P.Ramasamy v. Dhanalakshmi]. 12. Placing reliance on the same, she would argue that mere change of address etc., would not be sufficient for condoning such delay. 13. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: (1) 2010(2) Supreme 115 (Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another); an excerpt from it would run thus: "8. ............The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst.Katiji, (1987) 2 SCC 107 , N.Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 . ..........................." (2) AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and another’s v. Gobardhan Sao and others) also could fruitfully be cited; certain excerpts from it would run thus: "13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses." (emphasis added) 14. A mere poring over and perusal of those precedents would highlight that no doubt, the Court should be careful in analysing and understanding the real reasons behind the prayer for getting the delay condoned and in the meanwhile, if good reasons are found set out, certainly an opportunity has to be given to the petitioner to participate in the proceedings in the interest of audialteram partem. Here the question arises as to whether there is any willful negligence or laches on the part of the Company in prosecuting their defence. 15. Here the question arises as to whether there is any willful negligence or laches on the part of the Company in prosecuting their defence. 15. A mere perusal of the records would exemplify and indicate that D7 being the revision petitioner herein, who claims title based on the sale deeds executed by the plaintiff and the remaining defendants D2 to D6, might not have been interested in allowing the matter to go exparte. In fact, the Company who claims absolute ownership over the suit property must be interested in prosecuting the matter. This is not a simple money suit so as to protract the proceedings and deprive the plaintiff from enjoying the fruit of the decree, if any, that would be passed at a later date. As of now, the contention of D7 is that he became the absolute owner of the entire suit property. Hence, I am of the view that in this factual matrix, the averments in the affidavit accompanying the petition for getting the delay condoned may not be taken as frivolous ones. At the I.A. stage, the Court also cannot expect that D7 should have examined some witnesses to establish and prove that the Law Officer left the Firm, however, the affidavit in that regard could rightly be relied on for passing orders. Accordingly, I am of the view that in this singularly singular factual matrix, the averments as found set out in the affidavit accompanying the said application could be believed for the purpose of condoning the delay of 368 days, however, subject to payment of considerable cost in favour of the respondents. There is also one point which I would like to point out that the plaintiff as well as D1 to D7 has not chosen to make appearance before the lower Court in I.A.No.200 of 2010. Hence, considering pro et contra, I am of the view that the delay could be condoned subject to payment of cost of Rs.5,000/-(Rupees five thousand only) payable by the petitioner to the first respondent/plaintiff within a period of fifteen days from this date and the lower Court is directed to number the application under Order 9 rule 13 of CPC, if it is otherwise than in order, and deal with it as per law. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.