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2012 DIGILAW 3009 (MAD)

Elumalai Gounder v. Bala Ganapathy Mudaliar

2012-07-13

M.VENUGOPAL

body2012
Judgment :- 1. The Petitioner/Appellant has focussed the instant Civil Revision Petition as against the order dated 19.11.2009 in I.A.No.255 of 2009 in unnumbered C.M.A.No. Of 2009 passed by the Learned Principal District Judge, Villupuram for condonation of delay of 49 days in filing the application as per Order 9 Rule 9 of Civil Procedure Code. 2. The Learned Principal District Judge, Villupuram, while passing order in I.A.No.255 of 2009 in unnumbered C.M.A.No. Of 2009 on 19.11.2009, has among other things, observed that '.... when I.A.No.292 of 2008 was adjourned for an enquiry, no one appeared on the side of the Petitioner and viewed in that perspective, the Petitioner/Defendant was acting with a view not to proceed with the original suit before the trial Court and consequently, dismissed the application with costs.' 3. It comes to be known from the grounds of Revision that the Revision Petitioner/Defendant has taken a plea that the Learned Principal District Judge, Villupuram had failed to appreciate that there was every reason for the Petitioner to remind absent on the appointed date. 4. Another plea taken on behalf of the Petitioner is that I.A.No.255 of 2009 was filed to restore I.A.No.292 of 2008, wherein sufficient cause was made mention of and that the Petitioner was affected by a viral fever and he could not properly instruct his counsel. But, these crucial aspects were not taken note of by the Learned Principal District Judge, Villupuram while passing the order in I.A.No.255 of 2009 and therefore, this Court, in the interest of justice, may allow the Civil Revision Petition. 5. It transpires from the affidavit filed in I.A.No.255 of 2009 and I.A.No.292 of 2008 in I.A.No.81 of 2009 in unnumbered C.M.A.No. Of 2008 that the Petitioner/Defendant preferred Civil Miscellaneous Appeal before the Principal District Judge at Villupuram as against the attachment order passed against his properties in I.A.No.323 of 2007, dated 13.12.2007 in a pending money suit in O.S.No.83 of 2007 on the file of the Learned Principal Sub Court, Villupuram together with a delay petition praying for condonation of delay of 7 days. The said delay application in I.A.No.81 of 2008 was posted on 17.09.2008 for enquiry. The said I.A.No.81 of 2008 was dismissed for default on 17.09.2008. The said delay application in I.A.No.81 of 2008 was posted on 17.09.2008 for enquiry. The said I.A.No.81 of 2008 was dismissed for default on 17.09.2008. Therefore, the Petitioner/Defendant was constrained to project another I.A.No.292 of 2008 and the said application got dismissed on 18.04.2009 for their being no representation on behalf of the Petitioner. In short, the Petitioner/Defendant had prayed for con donation of delay of 7 days in projecting Order 9 Rule 9 of Civil Procedure Code. 6. Per contra, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the Revision Petitioner wantonly allowed I.A.No.81 of 2008 to be dismissed for default on 17.09.2008 and subsequently, projected I.A.No.292 of 2008 to restore I.A.No.81 of 2008 and the said application was also dismissed on 28.04.2008. Thereafter, the Petitioner/Defendant filed I.A.No.255 of 2009 before the Learned Principal District Judge seeking to condone the delay of 49 days in filing an application under Order 9 Rule 9 of Civil Procedure Code. 7. The Learned Counsel for the Respondent/ Plaintiff brings it to the notice of this Court that the main suit in O.S.No.83 of 2007 was posted in the list on 07.08.2008 for trial. However, the Petitioner/ Defendant filed an application to remove the suit from the list citing the reason that Civil Miscellaneous Appeal is pending before the Learned Principal District Judge, Villupuram. As such the trial in O.S.No.83 of 2007 was proceeded further. Once again, the main suit was posted in the list on 06.10.2009. The Petitioner had no inclination to proceed and conduct of trial of main suit. But he filed an application to remove the suit from the list. 8. According to the Respondent/Plaintiff, the Petitioner/Defendant borrowed the suit amount in the year 2002 and that he had failed and neglected to repay the debt. The Petitioner/Defendant's intention is only to protect the legal proceedings as far as possible. 9. It is to be noted that Section 51 of the Limitation Act, 1963 enjoins upon a Court of Law to deliver substantial justice between the parties as regards the disposal of matters on merits. This Court is alive and conscious to the fact that a Court of Law is to adopt a pragmatic, a common sense practical, and to purposeful approach while dealing with the condonation of delay application. This Court is alive and conscious to the fact that a Court of Law is to adopt a pragmatic, a common sense practical, and to purposeful approach while dealing with the condonation of delay application. To put it differently, a Court of Law is to adopt a liberal approach, for the simple reason that ordinarily a party does not stand to benefit by filing an application belatedly. 10. It is to be borne in mind that reducing to condone the delay application filed by a litigant may result in closing the doors of justice at the threshold and it may result in a cause of justice being defeated. Instead of, if the delay is condoned the maximum that would happen is a person or party will be allowed to take part in the main arena of the proceedings. Equally, there is no presumption that the delay in question on occasion due to negligence, which culpable negligence or on account of mala fides. If a person projects an application belatedly, he does not stand to gain. Per contra, he is a peril and at risk. 11. The delay that requires to be explained is from the date, the time was running out till the date of filing an appeal or application as the case may be. The Petitioner cannot be given the attitude and in law, there must be an endeavour on his part to explain such delay. Even if there is a long delay, the acceptability of explanation for the delay is relevant and assume significance. 12. As far as the present case is concerned that it appears that the Petitioner/Defendant agrees to the Respondent/ Plaintiff had borrowed the suit amount during the year 2002 and that when the suit was posted in the main list for trial, the Petitioner filed an application to remove from the list mentioned the reason that Civil Miscellaneous Appeal was pending before the Learned Principal District Judge, Villupuram. Because of the pendency of Civil Miscellaneous Appeal, the trial in the main suit in O.S.No.83 of 2007 could not be proceeded with. Once again, the suit was posted in the list on 06.10.2009 again the Petitioner projected interlocutory application to remove the suit from the list. Because of the pendency of Civil Miscellaneous Appeal, the trial in the main suit in O.S.No.83 of 2007 could not be proceeded with. Once again, the suit was posted in the list on 06.10.2009 again the Petitioner projected interlocutory application to remove the suit from the list. Therefore, it is patently and latently evident that the aim of the Petitioner/Defendant is to procrastinate and to prolong the legal proceedings endlessly by adopting dilatory tactics without any purpose. 13. Therefore, this Court comes to an inescapable conclusion that the Revision Petitioner/ Defendant has no innate/ardent zeal to get along with the conduct of the trial in the pending main suit on the file of the Principal Sub Judge, Villupruam O.S.No.83 of 2007. In short, the affidavit in I.A.No.255 of 2009 does not ascribe reasons for the delay caused. The affidavit of the Petitioner in I.A.No.255 of 2009 is conspicuously absent in regard to the ascribing of reasons for the delay caused to the filing of the condone the delay of application. To put it succinctly, affidavit in I.A.No.255 of 2009 filed by the Revision Petitioner/Defendant before the Learned Principal District Judge, Villupuram lacks bona fides. The Petitioner has not assigned sufficient and convincing/acceptable reasons in I.A.No.255 of 2009 and in fact has not pursued the matter diligently. 14. Looking at very any angle, this Court is not inclined to take a liberal view by exercising its discretionary power in allowing I.A.No.255 of 2009 to do substantial justice, since the Petitioner has not assigned acceptable explanation. Per contra, this Court is of the considered opinion that the Revision Petitioner/Defendant's aim is only to delay the proceedings by filing application after application to prolong and protract the pending proceedings in O.S.No.83 of 2007 on the file of the Learned Principal Sub Judge, Villupuram. Consequently, the Civil Revision fails. 15. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Resultantly, the order in I.A.No.255 of 2009 dated 19.11.2008 passed by the Learned Principal District Judge, Villupuram is affirmed by this Court for the reasons assigned in the Revision Petition. Consequently, connected Miscellaneous Petitions are closed.