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2012 DIGILAW 3225 (MAD)

Songappan v. S. P. Sathasiva Gounder (late)

2012-07-23

G.RAJASURIA

body2012
Judgment :- 1. This civil revision petition is focussed as against the order dated 03.04.2012 passed by the learned Principal Subordinate Judge, Erode in I.A.No.98 of 2012 in O.S.No.221 of 2000. 2. Heard both sides. 3. Avoiding unnecessary details, the germane facts absolutely necessary for the disposal of this petition would run thus: The respondents herein filed the money suit; whereupon the defendant filed the written statement; pendentelite the original plaintiff died; whereupon the legal heirs were impleaded and when the matter came up for trial, the defendant remained absent and hence he was set exparte and accordingly the exparte decree was also passed. Subsequently, an application under Order 9 Rule 13 of CPC was presented with an application to get the delay of 792 days condoned in filing such application under Order 9 Rule 13 of CPC. After hearing both sides, the lower court dismissed the said application. Being aggrieved by and dissatisfied with the same this revision has been focussed on various grounds. 4. The point for consideration is as to whether the delay of 792 days in filing the application under Order 9 Rule 13 of CPC could be condoned? 5. The reasons found set out in the affidavit accompanying the application would be to the effect that the revision petitioner was suffering from jaundice and that he could not contact his Advocate to file necessary application under Order 9 Rule 13 of CPC in time. 6. Whereas the learned counsel for the respondents/plaintiffs would submit that the averments contained in the affidavit are nothing but a load of baloney, fraught with falsity and mendacity and they are nothing but a bag of tricks for the purpose of getting the delay condoned by hook or by crook. The lower court appropriately and appositely analysed the facts and dismissed the application, warranting no interference in this revision. 7. On health grounds, the petitioner wants to get an opportunity to get the application under Order 9 Rule 13 of CPC processed on merits. No doubt, no medical certificate was also produced. The averments in the affidavit would also show that there was communication gap between himself and his advocate and that resulted in such delay. 8. 7. On health grounds, the petitioner wants to get an opportunity to get the application under Order 9 Rule 13 of CPC processed on merits. No doubt, no medical certificate was also produced. The averments in the affidavit would also show that there was communication gap between himself and his advocate and that resulted in such delay. 8. Taking into consideration the facts that already written statement was filed within the time; that the suit itself is for seven pro-notes; that the petitioner would state that because of the communication gap between himself and his Advocate and that too because of his illness the delay had occasioned, I am of the opiniion that lenient view could be taken in this regard. 9. At this juncture, I would like to re-collect and call up the following decisions of the Hon'ble 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) 10. In the result, I am of the view that the delay of 792 days in filing the application under Order 9 Rule 13 of CPC could be condoned. Accordingly, it is condoned subject to payment of cost of a sum of Rs.5,000/-(Rupees five thousand only) payable by the petitioner to the respondents within a period of ten days from the date of receipt of a copy of this order. 11. With the above direction, this civil revision petition is disposed of. No costs.