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2012 DIGILAW 3349 (MAD)

V. Kathirvel v. Arulmozhi

2012-07-27

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 29.02.2012 made in unnumbered I.A. in O.S.No.22 of 2007, by the learned Principal Subordinate Judge, Villupuram, this civil revision petition is focussed. 2. Heard both sides. 3. A thumbnail sketch of the relevant facts absolutely necessary for the disposal of this revision, would run thus: The respondents filed the suit based on mortgage. The revision petitioners herein who were the defendants therein, were served with notice and they filed the written statement also. On the side of the plaintiffs', P.W.1 was examined,, but the said P.W.1 was not cross examined and thereafter, the preliminary decree was passed ex parte. Subsequently, an application under Order IX Rule 13 of CPC was filed with an application to get the delay of 734 days condoned on the main ground that among the three revision petitioners herein, who happened to be brothers, there were some differences of opinion which made them to go to Bangalore and live separately as coolies and that alone resulted in the delay in filing the application to get the ex parte decree set aside. Counter was filed by the plaintiffs, whereupon the lower Court dismissed the application on the main ground that final decree itself was passed ex parte by that time and that there was no ground for condoning the delay in filing the application to get set aside the ex parte preliminary decree. 4. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 5. The learned counsel for the petitioners would pilot his arguments, which could pithily and precisely be set out thus: This is a peculiar case in which the original mortgagee namely Magizhnan, so to say, the propositus of the respondents herein, purchased one other property subject to discharge of mortgage in favour of the revision petitioners herein to a tune of Rs.30,000/-, but that amount was not repaid and while so, the respondents/plaintiffs herein are trying to enforce their right under the present suit mortgage, which cannot be countenanced and upheld and that would lead to travesty of justice. Accordingly the learned counsel for the petitioners would pray for due opportunity to put forth the defence before the lower Court. 6. Accordingly the learned counsel for the petitioners would pray for due opportunity to put forth the defence before the lower Court. 6. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court in dismissing the application to get the delay of 734 days condoned in filing the application under Order IX Rule 13 of CPC? 7. At the outset itself, I would like to fumigate my mind with 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. ..........................." (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) 8. A mere poring over and perusal of those decisions, would leave no doubt in the mind of the Court that the delay should not be condoned as a matter of course. However, in a straight jacket formula the rule relating to condonation of delay cannot be laid down. Here the affidavit accompanying the application to get the delay condoned, would display and demonstrate, evince and evidence, portray and project that there was differences of opinion among the three brothers, namely the revision petitioners herein, which alone made them to eke out their livelihood in their own way in Bangalore. After wards by change of mind, they jointly wanted to contest the matter and hence an affidavit was filed. However, the learned counsel for the respondents would submit that such averments in the affidavit are fraught with falsity and mendacity and it is nothing but a nancy story dished out for the purpose of getting such a huge delay condoned. 9. A vague statement that there was some internecine war among the respondents could never even by phantasmagorical thoughts constitute reason, much less sufficient reason for condoning such huge delay of 734 days. No doubt, the law got settled that each and every day's delay need be explained, but the delay should be reasonably explained. Accordingly if viewed, I could see no reason for condoning such a huge delay. 10. No doubt, the law got settled that each and every day's delay need be explained, but the delay should be reasonably explained. Accordingly if viewed, I could see no reason for condoning such a huge delay. 10. The fact also remains that already final decree was passed and now the E.P. is pending and the learned counsel for the petitioners would submit that today the E.P comes for the sale of the property. As such, I could see no merit in entertaining this revision and set aside that order. Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 11. The learned counsel for the petitioners would make an extempore submission that if today itself the property is sold in the Court auction sale, then there would not be any opportunity for the petitioners to discharge the decreetal dues and sufficient time might be granted. However, the learned counsel for the decree holder would oppose the same. Taking into account the pro et contra, I am of the view that three weeks' time could be granted for discharging the decreetal dues by the petitioners. Hence the following direction is given while dismissing the CRP, The sale shall be adjourned by three weeks waiving fresh proclamation and in meanwhile, the revision petitioners shall discharge the dues, if not, thereafter sale shall be conducted.