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2012 DIGILAW 2804 (MAD)

N. Murugeswari v. T. Sivasankari

2012-07-04

G.RAJASURIA

body2012
Judgment :- 1. Inveighing the order dated 23.12.2010 passed by the Principal District Court, Coimbatore, in I.A.No.1800 of 2009 in P.O.P.No.130 of 2007, this civil revision petition is filed. 2. A thumb nail sketch of the germane facts in a few broad strokes can be encapsulated thus: (i) The revision petitioner herein filed the suit in forma pauperis in P.O.P.No.130 of 2007 with the following prayer: "To pass a decree and judgement a) To set aside the sale deeds dt 10.8.05, registered as documents No.3478/05 to 3481/05 by way of declaratory injunction since they were obtained by threat, coercion, undue influence and in duress. b) Pass a decree of mandatory injunction to hand over the cash of Rs.5,00,000/-and the cheque for Rs.5,00,000/- which were obtained by the defendants from the plaintiff by threat, coercion, undue influence and in duress. c) Pass a consequential permanent injunction to restrain the defendants 1 to 5 that not to interfere with the peaceful possession and enjoyment of the suit property by the plaintiff. d) Award cost of the suit." (extracted as such) (ii) The said P.O.P.was dismissed on 12.6.2008 on the ground that steps were not taken to serve notice in the P.O.P. (iii) Subsequently, I.A.No.1800 of 2009 was filed to get the delay condoned in filing the application to get restored the P.O.P. (iv) After hearing both sides, the lower Court dismissed the said application. 3. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 4. The learned counsel for the revision petitioner/plaintiff, by placing reliance on the grounds of revision, would put forth and set forth his arguments, the gist and kernal of them would run thus: (i) The lower Court took a strict view of the matter by expecting the revision petitioner/plaintiff to prove meticulously all the details relating to the sickness of her sister, as the petitioner claimed in the affidavit accompanying the petition that she was attending her sister, who was sick. Such an approach on the part of the lower Court is not tenable under the law. (ii) The lower Court could have very well believed the version in the affidavit and condoned the delay subject to payment of cost. Such an approach on the part of the lower Court is not tenable under the law. (ii) The lower Court could have very well believed the version in the affidavit and condoned the delay subject to payment of cost. (iii) The valuable right of the petitioner/plaintiff was not taken into consideration by the lower Court and it simply dismissed the application to get the delay condoned in filing the application to get restored the P.O.P. 5. Despite printing the name of the learned counsel for the respondents, there is no appearance. 6. The point for consideration is as to whether the trial Court was justified in dismissing the application for getting the delay condoned in filing the application to get restored the P.O.P.? 7. A mere poring over and perusal of the records would reveal that the suit filed by the revision petitioner was to get set aside the sale deed executed by her on the ground that she was coerced to execute it. 8. No doubt, the petitioner should have diligently prosecuted her case. But in this case, she would come forward with the averments to the effect that she was attending her sister, who was hospitalised and it appears, the said sickly sister also died. 9. The learned counsel for the petitioner, by placing reliance on the said pathetic situation, would implore and entreat that the delay might be condoned subject to payment of cost by the revision petitioner to the respondents/defendants. 10. The P.O.P. itself was dismissed on the ground that no steps were taken to get served the notice on the respondents. Incidentally I would like to refer to the relevant provision in C.P.C., which is extracted hereunder: "O.33 Rule 8. Procedure if application admitted – Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee or fees payable service or process in respect of any petition, appointment of a pleader or other proceedings connected with the suit." 11. The intention of the Legislature is that once Pauper Original Petition is converted into O.S., it is the duty of the Court to serve summons etc and as such, the Legislators themselves thought that in matters where paupers are prosecuting their case, the Government itself should render its help regarding expenses. But the same provision cannot be pressed into service for serving notice at the P.O.P.stage. Even then, the Court can take a cue from that provision and have a sympathetic view while handling the P.O.Ps. 12. The lower Court expected that the petitioner, irrespective of she being a lady, should have produced clinching evidence by specifying the dates relating to the sickness of her sister etc. In my opinion, in this factual matrix, such an approach was unwarranted and subject to payment of cost, the said delay could have been condoned. 13. At this juncture, I recollect and call up the recent decision of the Hon'ble Apex Court reported in 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. 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 . ..........................." 14. One other decision of the Hon'ble Apex Court reported in 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) 15. In view of the dicta as found enunciated in the above said precedents of the Honourable Apex Court, I would like to set aside the order of the lower Court and allow the I.A.No.1800 of 2009 subject to payment of a total cost of Rs.2000/- (Rupees two thousand) payable by the revision petitioner herein to the respondents/defendants within one week from this date and accordingly it is ordered. 16. The civil revision petition is ordered accordingly. However, there is no order as to costs.