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2012 DIGILAW 2612 (MAD)

G. Padmavdathi v. Hakeer Hussain

2012-06-22

G.RAJASURIA

body2012
Judgment :- ORDER 1. Animadverting upon the order dated 2.2.2012 passed by the III Additional District Munsif, Kallakurichi in I.A.No.685 of 2010 in O.S.No.267 of 2004, this civil revision petition is filed. 2. Heard the learned counsel for the revision petitioner herein/defendant, who would echo the cri de coeur of his client to the effect that I.A.No.685 of 2010 in O.S.No.267 of 2004 was allowed condoning the huge delay of 1370 days in filing the application under Order IX Rule 9 of C.P.C.to get restored the suit, which was dismissed for default, at the trial stage. Counter was filed by the revision petitioner herein/defendant. After hearing both sides, the lower Court thought fit to condone the delay and accordingly, the delay was condoned, subject to payment of cost of Rs.2,620/-. 3. Being aggrieved by and dissatisfied with the said order, this revision is focussed. 4. The learned counsel for the revision petitioner/defendant would put forth and set forth his arguement to the effect that a plain reading of the order of the lower Court would show that the lower Court itself was not satisfied with the reasons found set out in the affidavit accompanying the delay petition and in such a case, no carte blanche was given to the lower Court Judge to simply condone the delay on payment of some cost. 5. The learned counsel also would cite the judgement of the Honourable Apex Court reported in 2011-3-L.W.26 – LANKA VENKATESWARLU (D) by LRs. vs. STATE OF A.P. AND OTHERS and pyramid his arguement by pointing out that if the delays are casually condoned, then the very object of the Limitation Act would be set at naught. 6. I would like to fumigate my mind with the following precedents of the Honourable 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. ............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 aothers 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) 7. 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) 7. My mind is reminiscent and redolent of the following maxims: (i) Vigilantibus et non dormientibus jura subveniunt – The laws aid the vigilant, not those who sleep. (ii) Interest reipublicae ut sit finis litium – It is in the interest of the state that there be a limit to litigation. 8. The sum and substance of those maxims is that if a person remains dormant and tweedles his thumbs; allows grass to grow under his feet and participates in the litigative process in a callous manner, no sympathy could be shown by the Court. However, it is also the trite proposition that once the lower Court exercised its discretion to give an opportunity to the plaintiffs to proceed with the case, by condoning the delay, the High Court would be reluctant to interfere with the same, unless there is gross injustice ensued to the other side. 9. Here, what the lower Court pointed out is that the Power of Attorney of P.W.1 was examined to show that there was communication gap between the plaintiffs and their counsel and that was why the plaintiffs could not appear on the particular date. Nowhere it is found set out in the impugned order of the lower Court that it disbelieved the version. The fact also remains that for the first time, the suit was dismissed and it is not that the plaintiffs were recidivists in abstaining from the Court. 10. Over and above that, the suit is one for partition. It is well settled that so far partition suits are concerned, cause of action survives even after dismissal of the suit for default. As such, the net result would be that if the delay is not condoned, the plaintiffs would be still entitled to file a fresh suit for partition. 11. It is well settled that so far partition suits are concerned, cause of action survives even after dismissal of the suit for default. As such, the net result would be that if the delay is not condoned, the plaintiffs would be still entitled to file a fresh suit for partition. 11. What I would like to point out is that in case of partition suit, some amount of leniency could be shown, because law itself zealously and jealously safe-guards the interest of sharers in various ways, including the fact that they are permitted to pay lesser Court fee and also get refund of Court fee, after passing of the decree and engrossing the same on non-judicial paper etc. In such a case, the lower Court, in its wisdom thought fit to condone the delay, subject to payment of some cost and wherefore I do not find any perversity or illegality in the order passed by the lower Court. 12. In the result, the civil revision petition is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.