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2013 DIGILAW 2619 (MAD)

M. Saroja v. G. K. Chenniappan

2013-07-24

K.RAVICHANDRA BAABU

body2013
JUDGMENT :- 1. The defendant is the petitioner in a suit for recovery of money filed by the respondent in O.S.No.353 of 2002 on the file of the District Munsif Court, Gobichettipalayam, based on a promissory note said to have executed by her on 6.5.2000. In the said suit, an exparte decree came to be passed on 5.12.2002 as the petitioner did not appear before the Court on the said day. 2. The decree holder filed E.P.No.10 of 2009 and on receipt of notice from the Executing Court, the petitioner filed I.A.No.516 of 2009 under Section 5 of the Limitation Act seeking to condone the delay of 2,472 days in filing the application under Order IX Rule 13 of the Civil Procedure Code to set aside the exparte decree. The said application was rejected by the Court below. Hence, the present Civil Revision Petition is filed by the petitioner. 3. Notice was ordered to the respondent by this Court in the above Civil Revision Petition. Though it was served on him, he has not chosen to appear either in person or through a counsel. His name is printed in the cause list. 4. Heard Mr.R.T.Doraisamy, learned counsel appearing for the petitioner and perused the materials placed before this Court as well as the lower court records. 5. The petitioner filed the application under Section 5 of the Limitation Act by contending that she was not served with any notice in the suit and she came to know about the exparte decree only on 4.9.2009 during the execution proceedings wherein she was served with notice. She also specifically stated in the affidavit that the person who received the notice, by name, Prabhu, is not her son and the signature found in the suit summon is not that of his son whose name is Prabakaran. Thus, according to the petitioner, she was totally unaware of the suit and the exparte decree passed therein till she received notice from the executing Court. 6. The said application was resisted by the respondent by filing counter affidavit. It is stated therein that the suit summon was received only by the son of the petitioner, namely, Prabakaran and therefore, the petitioner had full knowledge of the pendency of the suit. 7. 6. The said application was resisted by the respondent by filing counter affidavit. It is stated therein that the suit summon was received only by the son of the petitioner, namely, Prabakaran and therefore, the petitioner had full knowledge of the pendency of the suit. 7. The Court below rejected the application by holding that the signature found in both the summon under Ex.A.2 and Partition Deed under Ex.A.1 are one and the same by the same person. It is also found by the Court below that the address mentioned in the summon is also not disputed. The learned Judge further observed that there was no need for the process server to make a false endorsement. Thus, by observing that the petitioner had not given sufficient cause, the application came to be rejected on 10.11.2010. 8. In this case, it is the categorical contention of the petitioner that she was not served with any summon. It is her further case that the signature found in the summon is not that of her son. When she had specifically taken such a stand, it is for the respondent to prove that the summon was served on the petitioner. The respondent has not let in evidence either oral or through documents. On the other hand, the petitioner has examined her son as PW.2 who in categorical terms has spoken that he has not received the summon and that the signature found in the summon is not his signature. 9. I perused the signature under Exs.A.1 and A.2. A bare perusal of both the signatures would undoubtedly show that it is not one and the same as found by the Court below. Apart from the said fact, the person said to have received the summon has also spoken as PW.2 denying such receipt. No contra evidence was let in by the respondent either by examining process server or by examining any other third party who is said to have witnessed the service of summon. Then, it is the bounden duty of the respondent to establish before the Court that the summon was served on the petitioner. In this case, the said burden was not discharged by the respondent. 10. Accordingly, I find that the petitioner has shown sufficient cause before the Court for her non-appearance on the said day. Then, it is the bounden duty of the respondent to establish before the Court that the summon was served on the petitioner. In this case, the said burden was not discharged by the respondent. 10. Accordingly, I find that the petitioner has shown sufficient cause before the Court for her non-appearance on the said day. Even the counter affidavit filed by the respondent before the Court below does not give any other details or facts disclosing that the petitioner was aware of the pendency of the suit and the exparte decree passed therein. No doubt, the delay is enormous but at the same time, the length of the delay, however long it may be, cannot prejudice the mind of the Court, if the petitioner otherwise satisfies that there is a justifiable cause for her non-appearance. 11. Recently, I have considered similar issue in a case reported in 2013 (3) CTC 220 [N.P.Srinivasan Vs. S.Santhalakshmi] wherein at Paras 13, 14 and 15, it has been held as follows:-" 13. No doubt the delay of 1828 days is enormous and the respondent is bound to satisfy the Court with sufficient cause for condoning the said delay. Going by the pleadings of the respective parties before the Court below as well as specific finding rendered by the learned Judge, satisfying with the reasons adduced by the respondent, more particularly on the ground of non-service of summons, in my considered view, it is to be held that the respondent had discharged her burden of proving sufficient cause , even though the delay was for a long period. 14. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court reported in 1998 (7) SCC 123 (N.Balakrishnan Vs. M.Krishnamurthy), wherein it is observed at paragraph 9 as follows: "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court." 15. The said decision was considered in a recent decision of the Apex court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai ( 2012 (5) SCC 157 ), wherein it is observed at paragraph 24 as follows:- "24. what colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." 12. In my considered view, the petitioner has established that her non-appearance on the day when the exparte decree passed was due to the reason that she was not served with any summon from the Court below. There are no other contra materials placed before the Court below to come to a different conclusion and, ultimately, I find that the order passed by the Court below is not just and proper and the learned Judge has not exercised the discretion properly taking note of the facts and circumstances of the case. 13. There are no other contra materials placed before the Court below to come to a different conclusion and, ultimately, I find that the order passed by the Court below is not just and proper and the learned Judge has not exercised the discretion properly taking note of the facts and circumstances of the case. 13. Accordingly, the order passed by the Court below in I.A.No.516 of 2009 is set aside and the Civil Revision Petition is allowed. The connected Miscellaneous Petition is closed. No costs. 14. Since the suit is of the year 2002, the Court below is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order.