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2012 DIGILAW 1883 (MAD)

D. Sundararajan v. G. Hemalatha

2012-04-12

G.RAJASURIA

body2012
Judgment :- 1. Inveighing the order dated 14.2.2011 passed in C.M.P.No.1385 of 2010 in A.S.S.R.No.43028 of 2010 by the Principal Judge, City Civil Court, Chennai, this civil revision petition is focussed. 2. Heard both sides. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this civil revision petition would run thus: (i) The revision petitioner herein, as plaintiff, filed the suit for injunction, which was dismissed, after contest. Subsequently, the appeal memorandum was presented by the plaintiff along with the application under Section 5 of the Limitation Act to get the delay of 649 days condoned in filing the appeal on various grounds, including the one that there was communication gap between the petitioner and his advocate. (ii) The respondent herein entered appearance and filed the counter and virtually the said application under Section 5 of the Act was dismissed. 4. Being aggrieved by dissatisfied with the said order, this revision is focussed by the plaintiff. 5. The point for consideration is as to whether the lower Court was not justified in dismissing the application on the sole ground that no valid reasons were found set out therein and also adverting to in paragraph No.6 of the order, the merits of the matter. 6. Heard both sides. 7. The learned counsel for the revision petitioner, placing reliance on the affidavit accompanying the Section 5 of the Limitation Act application as well as the grounds of revision, would put forth and set forth his arguments, the pith and marrow of the same would run thus: (i) The lower Court was not justified in simply belittling and slighting the averments of the revision petitioner on the sole ground that the petitioner was trying to stab his advocate behind his back. (ii) Normally, sufficient time is being taken by the lower Courts for issuing the certified copies of the judgement and decree in the suit. (ii) Normally, sufficient time is being taken by the lower Courts for issuing the certified copies of the judgement and decree in the suit. Hoping and believing that the petitioner's lawyer would do the needful by filing copy application, the petitioner waited and thereafter, on seeing the conduct of the respondent relating to the suit property, the petitioner approached the lower Court and ascertained that not even the copy application was filed, whereupon, he, through some other advocate, got the application filed and obtained the certified copies of the judgement and decree and thereafter, his new lawyer took some time to present the memorandum of appeal with the application under Section 5 of the Limitation Act. (iii) Without considering all these facts, the lower Court simply dismissed the application, warranting interference in revision. 8. Per contra, in a bid to make mincemeat of the arguments as put forth and set forth on the side of the revision petitioner, the learned counsel for the respondent would pilot his arguments, the gist and kernal of the same would run thus: (i) The lower Court appropriately and appositely, having in mind the current law, relating to condonation of delay, dismissed the application, warranting no interference in the revision. (ii) Simply because the petitioner passed some allegation as against his erstwhile advocate that it does not mean that the lower Court should take those allegations for gospel truth and condone the huge delay of 649 days in presenting the memorandum of appeal. 9. The learned counsel for the revision petitioner would cite the following decision of the Honourable Apex Court. (2010) 6 SUPREME COURT CASES 786 -IMPROVEMENT TRUST, LUDHIANA V. UJAGAR SINGH AND OTHERS, certain excerpts from it would run thus: "19.) In our opinion, the ends of justice would be met by setting aside the impugned orders and the matter is remitted to the executing court to consider and dispose of the appellant's objections filed under Order 21 Rule 90 CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on such technicalities. It is pertinent to point out that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on such technicalities. 20.) Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the court to see to it that justice should be done between the parties." 10. I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) 2010(2) Supreme 115 (Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another) and 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. 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 . ..........................." (ii) AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and others 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) A mere running of the eye over those precedents would exemplify and demonstrate that in appropriate cases, for valid reasons to be cited, delays could be condoned and not as a matter of course. 11. Here a bare perusal of the order of the lower Court would connote and denote, express and expatiate that the observation made by the lower Court in paragraph No.6 of its order was unwarranted because that was touching upon the merits of the matter. While dealing with the application under Section 5 of the Limitation Act, the Courts are not expected to go into the merits of the substantive case. But in this case, the lower Court went into the merits of the case and virtually opined that no fruitful purpose would be solved by preferring appeal by the petitioner herein. 12. Scarcely could be stated that such an approach was correct. No doubt in paragraph No.5 of its order, the lower Court observed that no valid reason was found set out in the affidavit accompanying the application, however, he would opine that the petitioner was trying to stab his erstwhile lawyer on his back, without any substance. Such an observation was made by the lower Court Judge without any basis. No doubt in paragraph No.5 of its order, the lower Court observed that no valid reason was found set out in the affidavit accompanying the application, however, he would opine that the petitioner was trying to stab his erstwhile lawyer on his back, without any substance. Such an observation was made by the lower Court Judge without any basis. Neither the petitioner nor his lawyer was examined before the Court and hence, it is not for the Court to finally decide as to whether there was betrayal on the part of the lawyer towards his client or not. 13. For the purpose of condoning the delay, hardly could it be stated that Courts have got no powers to place reliance on the affidavit. Here, indubitably and indisputably there is a delay of 649 days in filing the memorandum of appeal. There is no gainsaying of the fact that the copy application itself was filed only on 2.7.2010, even though the judgement was passed as early as on 13.10.2008. A litigant, who is having the inclination to file appeal would not simply keep quiet, without even filing an application to get the certified copies of the judgement and decree. The nature of the case here is that there is nothing to indicate that the petitioner herein once and for all decided to accept the said judgement of the lower Court and leave his claim over the suit property. Hence, the Court cannot simply throw the baby along with the bathe water by observing or remarking that the averments in the affidavit accompanying the petition are fraught with mendacity or falsity without any evidence before it. 14. In the interest of audi alteram partem, normally, the appellate Courts are expected to be somewhat lenient in condoning the delay, because right of appeal is a very important one, which cannot so easily be rejected as against a litigant, who approaches the appellate Court. 15. To the risk of repetition and pleonasm, but without being tautalogous, I am of the view that at this stage this Court need not comment upon the merits of the case. 16. 15. To the risk of repetition and pleonasm, but without being tautalogous, I am of the view that at this stage this Court need not comment upon the merits of the case. 16. The learned counsel for the respondent would submit that pendente lite several juridical acts emerged at the instance of the Power of Attorney of the petitioner and in such a case, no fruitful purpose would be solved even if the delay is condoned and the revision petitioner is permitted to file an appeal. 17. I would like to point out that such materials are not before this Court and it is open for the revision petitioner to put forth those facts before the appellate Court, at the appropriate stage. Considering the pro et contra, I am of the considered view that this is a case where because of the communication gap between the petitioner and his trial Court advocate, the petitioner could not approach the first appellate Court in time. Wherefore, I am of the view that by awarding cost, the delay could be condoned. 18. In the result, the order of the lower Court is set aside by allowing this revision and C.M.P.No.1385 of 2010 is allowed condoning the delay subject to payment of Rs.5000/-(rupees five thousand) payable by the petitioner to the respondent within 15 days from the date of receipt of a copy of this order. However, there is no order as to costs.