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2012 DIGILAW 2680 (MAD)

Rasa Gounder v. Raja Sulochana

2012-06-27

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 10.2.2012 passed by the Principal District Court, Erode, in I.A.No.1090 of 2010 in O.S.No.114 of 2010, this revision petition has been filed. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts in a few broad strokes can be encapsulated thus: The first respondent herein filed the suit in O.S.No.114 of 2010 seeking partition and it was decreed ex-parte. Subsequently, I.A.No.1090 of 2010 was filed by the revision petitioners herein/defendants 2 and 3 to get the ex-parte decree set aside with the delay of 100 days. However, the Court concerned dismissed the said I.A. 4. Being aggrieved by and dissatisfied with the said order, this revision has been filed by the defendants 2 and 3. 5. Placing reliance on the grounds of revision and also the averments as found set out in the affidavit accompanying the petition, the learned counsel for the revision petitioners herein/defendants 2 and 3 would put forth and set forth his arguements to the effect that in a partition suit the defendants should have due opportunity of contesting the matter, but in this case, owing to circumstances beyond the control of the defendants, they could not participate and subsequently, there was 100 days delay in filing the application under Order 9 Rule 13 of C.P.C. to get the ex-parte decree set aside. However, unjustifiably, the plaintiff resisted the same and the lower Court simply dismissed the application, warranting interference in revision. 6. Whereas, in a bid to torpedo and pulverise the arguements as put forth and set forth on the side of the revision petitioners, the learned counsel for the first respondent/plaintiff would pyramid his arguements, which could succinctly and precisely be set out thus: Despite notices having been sent in the final decree proceedings there was no positive response from the defendants' side and they are simply dilly dallying with the matter and not taking the case seriously and their intention is only to drag on the matter. 7. The point for consideration is as to whether the prayer for condoning the delay of 100 days was unjustifiably rejected and whether there is any perversity or illegality in the order passed by the lower Court? 8. 7. The point for consideration is as to whether the prayer for condoning the delay of 100 days was unjustifiably rejected and whether there is any perversity or illegality in the order passed by the lower Court? 8. A bare perusal of the order passed by the lower Court in the I.A.No.1090 of 2010 would reveal that the second revision petitioner herein/second petitioner/defendant No.3 examined himself as P.W.1 and no document was marked. On the respondents' side, the first respondent herein/plaintiff examined herself as R.W.1 along with R.W.2-Thangamuthu and Exs.R1 to R3 were marked. 9. The lower Court adverted to the fact that there was nothing to prove that the plaintiff agreed to withdraw the suit and there was no truth in the averments made by the defendants in the I.A. to get the ex-parte decree set aside. In fact, the plaintiff relied on Ex.R1-the copy of the notice sent in E.P., which was initiated so as to punish the defendants for contempt, in view of they having violated the injunction order; however, the revision petitioners herein/defendants disputed the genuineness of the same. Considering all these facts, the lower Court simply dismissed the prayer of the defendants for condoning the delay of 100 days in filing the application to get set aside the ex-parte decree. 10. At this juncture, I would like to fumigate my mind with the following decisions 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. 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. 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) 11. A mere perusal and poring over of the above excerpts including the entire judgments would clearly exemplify and demonstrate that if the period of delay is meagre, a lenient view has to be taken as otherwise the reasons found set out in the affidavit accompanying the petition for getting the delay condoned, should be strictly scrutinised. 12. A mere perusal and poring over of the above excerpts including the entire judgments would clearly exemplify and demonstrate that if the period of delay is meagre, a lenient view has to be taken as otherwise the reasons found set out in the affidavit accompanying the petition for getting the delay condoned, should be strictly scrutinised. 12. I would like to highlight that here the delay of 100 days is not huge. One cannot forget that the suit itself is for partition. In such a case, a strict approach is not warranted to condone the delay of 100 days. No doubt, the lower Court pointed out certain laches on the part of the defendants in pursuing the matter. 13. The contention of the revision petitioners/defendants is to the effect that there was talk of compromise and believing the plaintiff's version that she would not press the suit, they simply kept quiet. 14. Taking into consideration the near relationship between the parties and that the partition suit has to be dealt with to the fullest extent, I am of the view that one more opportunity could be given to the revision petitioners herein/defendants 2and 3 to contest the matter. 15. Over and above that incidentally I would like to point out that the ex-part judgement passed by the lower Court in the suit is far from satisfactory. Ex facie and prima facie it has no legs to stand. A judge is not expected to pass a judgement in a partition suit in the following manner: "Plaintiff present and filed a proof affidavit as P.W.1. Ex.A1 to A10 marked. Claim proved. Preliminary decree passed as prayed for. Time two months." (extracted as such) 16. Even on that ground of vagueness also this Court being the High Court having supervisory jurisdiction can set aside that ex-parte judgement. Accordingly, the order dated 10.2.2012 passed by the Principal District Court, Erode, in I.A.No.1090 of 2010 is set aside and the I.A. is allowed subject to payment of total cost of Rs.1000/- (Rupees one thousand) payable by the revision petitioners herein to the plaintiff within two weeks from this date. On such payment of cost within the stipulated time, the application under Order 9 Rule 13 shall be numbered, if it is otherwise in order, and disposed of. On such payment of cost within the stipulated time, the application under Order 9 Rule 13 shall be numbered, if it is otherwise in order, and disposed of. In the event of setting aside the ex-parte decree, the lower Court shall do well to see that the entire suit is disposed of within three months thereafter. 17. In the result, the civil revision petition is allowed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.