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2012 DIGILAW 3072 (MAD)

K. Rajam v. K. P.

2012-07-17

G.RAJASURIA

body2012
Judgment :- Animadverting upon the order dated 24.2.2012 passed by the I Additional District Munsif, Erode, in I.A.No.379 of 2011 in O.S.No.680 of 2006, this civil revision petition is filed. 2. A thumbnail sketch of the germane facts, which are absolute necessary for the disposal of this civil revision petition would run thus: (i) The revision petitioner herein/plaintiff filed the suit for injunction and it was decreed ex-parte. Thereafter E.P. also was filed to enforce the injunction. On receipt of the E.P. notice, the respondent herein/defendant participated in the proceedings and thereafter, filed the I.A.No.379 of 2011 to get the delay of 1515 days condoned in filing the application under Order 9 Rule 13 of C.P.C.to get the ex-parte decree set aside. (ii) After hearing both sides, the lower Court condoned the delay subject to payment of cost of Rs.1,500/-(one thousand five hundred) payable by the defendant to the plaintiff. 3. Being aggrieved by and dissatisfied with the said condonation of delay by the Executing Court this revision has been focussed by the plaintiff on various grounds. 4. The learned counsel for the revision petitioner/plaintiff would put forth and set forth his arguements, which could tersely and briefly be set out thus: It is not an ordinary case, wherein, really the respondent/defendant was suffering from ill-health, which incapacitated him to pursue his defence in the suit. He deliberately refrained from participating in the proceedings and only on receipt of E.P. notice and that too, after enormous delay, he filed the application I.A.No.379 of 2011 to get the delay of 1515 days condoned, which legally cannot be condoned. However, the lower Court, without assigning any valid reasons simply referred to some medical records of the defendant and condoned the delay warranting interference in revision. 5. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court in condoning the delay of 1515 days? 6. At the out set 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. 6. At the out set 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. 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. A plain reading of those decisions would highlight that in appropriate cases delay could be condoned, however, there should not be any element of wilful negligence on the part of the defaulting party in prosecuting the matter. 8. Here the trial Court being the Court of facts, taking into account the pro et contra, thought fit to condone the delay and give an opportunity to the defendant to participate in the proceedings. Normally, the High Court will not interfere with the order of the lower Court in condoning the delay, unless there is perversity or illegality in it. 9. No doubt, even though the medical records might speak about the ill-health of the respondent herein/defendant, there is no detailed explanation as to what incapacitated the defendant from approaching the advocate through some of his relatives etc. 10. The learned counsel for the revision petitioner/plaintiff also citing the connected proceedings would develop his arguement that even on merits, the defendant is having no case of his own and purely at the instigation of his brother, he did choose to file this I.A.No.379 of 2011, after allowing the decree to be passed ex-parte. 11. The facts relating to the condonation of delay might differ from one case to another. Uniform straight jacket formula cannot be adopted for condoning the delay. Here an immovable property dispute is involved. On the one hand, the revision petitioner/plaintiff would claim that she happens to be the wife of the vendor. 11. The facts relating to the condonation of delay might differ from one case to another. Uniform straight jacket formula cannot be adopted for condoning the delay. Here an immovable property dispute is involved. On the one hand, the revision petitioner/plaintiff would claim that she happens to be the wife of the vendor. On the other hand, the respondent/defendant would submit that the deceased husband of the revision petitioner happened to be the Power of Attorney of his brother and that the respondent/defendant is having interest in the property, as it happened to be the ancestral property. 12. As such, I am of the view that there is some property dispute and keeping all these things in mind, presumably, the lower Court thought of giving an opportunity to the respondent/defendant, over which, I am not inclined to interfere, as there is no perversity or illegality in the order passed by the lower Court. 13. However, taking into account the huge delay in filing the application under Order 9 Rule 13 of C.P.C., the awarding of a sum of Rs.1,500/-(one thousand five hundred) would not meet the ends of justice and it could be enhanced to Rs.10,000/-and accordingly it is ordered. The respondent/defendant is directed to pay to the revision petitioner/plaintiff the remaining cost of Rs.8,500/-(rupees eught thousand five hundred) within a period of 15 days from this date. On such, compliance, the application under Order 9 Rule 13 of C.P.C shall be taken up and dealt with. In the event of the lower Court setting aside the ex-parte decree, it shall do well to see that the matter is disposed of within four months thereafter. 14. In the result, the civil revision petition is disposed of accordingly. However, there is no order as to costs.