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2012 DIGILAW 3068 (MAD)

M. Selvasekaran v. R. Subramani

2012-07-17

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order 18.8.2010 passed by the District Munsif, Ponneri, in I.A.No.872 of 2009 in O.S.No.154 of 2000, this civil revision petition is filed. 2. A summation and summarisation of the relevant facts absolutely necessary for the disposal of this civil revision petition, in a few broad strokes, can be encapsulated thus: (i) The revision petitioner herein filed the suit O.S.No.154 of 2000 seeking the following reliefs: "a) to grant a relief of declaration of the plaintiff's right and title of the suit property and also for consequential injunction thereby restraining the defendant, his men, agents, servants and others authorised by him from trespassing into the suit property and in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property. b) for the costs of the suit." (extracted as such) (ii) Written statement was filed by the defendant. (iii) Subsequently the suit was dismissed for default. (iv) Thereafter, application under Order 9 Rule 9 of C.P.C was filed by the plaintiff with the delay of 1173 days in filing such application to get set aside the decree passed in the suit. (v) The lower Court, after hearing both sides dismissed the said application. 3. Being aggrieved by and dissatisfied with the same, this revision has been focussed by the plaintiff on various grounds. 4. The point for consideration is as to whether the delay of 1173 days could be condoned in filing the application under Order 9 Rule 9 of C.P.C in view of the reasons found stated in the affidavit accompanying the petition. 5. A mere poring over and perusal of the affidavit accompanying the interlocutory application would reveal that there was some communication gap between the plaintiff and his advocate and that alone resulted in the delay. However, the lower Court disbelieved such version and rejected the prayer for condoning the delay. 6. The learned counsel for respondents 2 and 3 herein would copiously narrate as to how the revision petitioner herein/plaintiff without having any right and that too having lost his interest in prosecuting the matter, as an after thought, did choose to file the application under Order 9 Rule 9 of C.P.C.with a petition to get the enormous delay condoned. The lower Court appropriately and appositely dismissed such prayer, warranting no interference in revision. 7. The lower Court appropriately and appositely dismissed such prayer, warranting no interference in revision. 7. He would also narrate that one other suit was filed by the biological daughter of Murugesan as against her brothers and in that, the preliminary and final decrees were passed. When such is the position, the revision petitioner herein did choose to file one other suit for getting set aside the proceedings in the said partition suit and that is also pending. As such, he would submit that the revision petitioner is bent upon giving trouble to the respondents herein and he prays for dismissal of the revision. 8. A mere reading of the order of the lower Court would reveal that the lower Court expected that each and every days' delay should be explained. 9. 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. 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) 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. 10. No doubt, there should not be laches on the part of the litigant in prosecuting the matter. In this case, the revision petitioner would attribute the whole liability on his advocate. According to him, his advocate failed to inform him the exact date of hearing and that alone resulted in such delay. 11. Normally an advocate is not expected to file an affidavit and similarly in this case also the advocate has not filed the affidavit. However, the revision petitioner narrated the facts to the effect that whenever he approached his advocate about the progress of the suit, the latter replied that he would look after the matter. 12. At times certain matters may be stranger than friction, but still there might be some tinge of truth. No doubt, in matters concerning title suits, some indulgence could be shown in condoning the delays. The revision petitioner herein, in view of the narration as set out by the learned counsel for the respondents, is interested in prosecuting the matter, however there occurred some delay. 13. I do not think that there was wilful negligence in causing such delay. No doubt, in matters concerning title suits, some indulgence could be shown in condoning the delays. The revision petitioner herein, in view of the narration as set out by the learned counsel for the respondents, is interested in prosecuting the matter, however there occurred some delay. 13. I do not think that there was wilful negligence in causing such delay. However, the respondents also should not be put to any difficulty, for which, the respondents should be adequately compensated. 14. I am of the considered view that in the peculiar facts and circumstances of this case, opportunity has to be given to the petitioner to proceed with the matter and that too, in view of the fact that if this opportunity is denied to him, once and for all he would not be able to bring any fresh suit on the same cause of action in view of the embargo as found embodied in Order 9 Rule 9 of C.P.C., because at the time of dismissal, D2 was present in Court. 15. In the result, I would like to condone the delay of 1173 days subject to payment of cost of Rs.10,000/- (Rupees ten thousand) payable by the revision petitioner herein to the respondents within 15 days from this date and accordingly, it is ordered. 16. The learned counsel for the respondents would make an extempore submission that in the event of the lower Court giving opportunity to the petitioner to carry on with his case, the other connected matter i.e O.S.No.122 of 2012, might also be ordered to be taken simultaneously with this case in O.S.No.154 of 2000 and disposed of within a time frame. 17. I could see considerable force in the submission made by the learned counsel for the respondents. Accordingly, on complying with the order of this Court in paying the amount, the order 9 Rule 9 application should be taken up and disposed of and in the event of restoring the suit, the said suit O.S.No.154 of 2000 as well as the connected suit O.S.122 of 2012 shall be dealt with simultaneously or together at the discretion of the Court concerned and disposed of within three months thereafter. 18. The civil revision petition is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.