Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 3056 (MAD)

V. Radhakrishnan v. P. Radhakrishnan

2013-08-27

K.RAVICHANDRA BAABU

body2013
ORDER : 1. The petitioner in C.R.P.No.683 of 2009 is the plaintiff in O.S.No.69 of 1982 on the file of the Sub Court, Chengalpet. The petitioner in C.R.P.No.684 of 2009 is the defendant in O.S.No.263 of 1981 on the file of the Sub Court, Chengalpet. In both the civil revision petitions, the petitioner is one and the same. The petitioner filed the said suit in O.S.No.69 of 1982 against the respondents herein for permanent injunction. The respondents herein filed the other suit in O.S.No.263 of 1981 for declaration and injunction. Both suits are in respect of the same properties and are tried together and a common judgment was delivered on 05.07.1983, whereby the petitioner's suit in O.S.No.69 of 1982 came to be decreed and the respondents' suit in O.S.No.263 of 1981 came to be dismissed. Thus, the respondents filed A.S.No.150 and 151 of 1993 on the file of the District Court, Chengalpet wherein a common judgment was made on 01.10.1984, by remanding the suits to the trial court for fresh consideration and disposal. Consequent upon such remand, on 17.11.1984, O.S.No.263 of 1981 filed by the respondents came to be decreed exparte while O.S.No.69 of 1982 filed by the petitioner came to be dismissed for default. Within 30 days, the petitioner filed I.A.Nos.122 and 123 of 1985 seeking to set aside the exparte decree as well as for restoration of the suit respectively. The said applications were, however, dismissed for default on 27.07.2001. After nearly six years, the petitioner filed I.A.Nos.787 and 848 of 2007, under section 5 of the Limitation Act, for condonation of delay of 2,121 days in restoring those I.A.Nos.122 and 123 of 1985. The said applications were dismissed by the court below. Aggrieved against the same, the present civil revision petitions are filed. 2. Heard the learned counsel appearing for the petitioner and the respondents. 3. Mr.A.Muthukumar, learned counsel appearing for the petitioner contended that only due to the negligence of the counsel in lower Court, the petitioner could not file the application immediately. In both the suits, the petitioner has merits to succeed. When the application to set aside the exparte decree and restore the suit were filed within 30 days, the present application filed for condonation of delay in restoring those applications ought to have been allowed. In both the suits, the petitioner has merits to succeed. When the application to set aside the exparte decree and restore the suit were filed within 30 days, the present application filed for condonation of delay in restoring those applications ought to have been allowed. He also contended that the exparte decree passed against the petitioner is not a valid one and thus, such decree is a nullity. When the decree passed was without adjudication of the rights of the parties, it can be set aside. In support of his submission, he relied on the following decisions: i. Air 1981 SCC 1400;Rafiq and another v. Munshilal and another; ii. 2008(3)MLJ 268;Adhikesavan v. Kalavathi; iii. AIR 1987(SC) 1353;Collector, Land Acquisition v. Katiji; iv. 2008(1)CTC 785;Ravi Enterprises v. Indian Bank; v. 2011(3) CTC 168 , Meenakshisundaram Textiles v.Valliammal Textiles Ltd. 4. Per contra, learned senior counsel Mr.S.V.Jayaraman appearing for the respondents submitted that the merits of the suit cannot be gone into while considering the application under section 5 of the Limitation Act. The petitioner has not stated anywhere during his examination as P.W.1, as to when he came to know about the exparte decree. He further submitted that even though the petitioner stated in the affidavit that he came to know about the exparte decree only in the month of June 2007, to prove such contention, he has not let in any evidence. Thus, the learned senior counsel by supporting the order of the court below, relied on series of decisions which are as follows: (i) 2001(4)CTC 722, Kandaswamy and four others v. Krishnamandiram Trust, Karur; (ii) 2003-1-L.W.585, Sundar Gnanaolivu v. Rajendran Gnanavolivu; (iii) 2007(2)CTC 643, G.Jayaraman v. Devarajan; (iv) 2009(5)CTC 48, Shanmugam v. Chokkalingam; (v) 2010AIR SCW 1788, Oriental Aroma Chemical Industries Ltd v. Gujarat Industrial Development Corporation and Another; (vi) 2011(2)MWN(Civil)741,K.M.Balasubramaniam v. C.Loganathan; (vii) 2011(4)SCC 363, Lanka Venkateswarlu v. State of Andhra Pradesh and Others; (viii) (2012) 3 Supreme Court Cases 563, Postmaster General v. Living Media India Limited and Another; (ix) AIR 2012 SUPREME COURT 1629, Maniben Devraj Shah v. Municipal Corporation of Brihan, Mumbai. 5. In both these cases, the only issue arises for consideration is as to whether the petitioner has shown sufficient cause for condoning the delay of 2,121 days in filing the petition to restore I.A.Nos.122 and 123 of 1985. 6. 5. In both these cases, the only issue arises for consideration is as to whether the petitioner has shown sufficient cause for condoning the delay of 2,121 days in filing the petition to restore I.A.Nos.122 and 123 of 1985. 6. It is an admitted fact that originally, the suit filed by the petitioner was decreed and the other suit filed by the respondents was dismissed by a common judgment dated 05.07.1983. However, the Appellate Court, by a common judgment delivered on 01.10.1994, allowed the appeals and remanded the matter to the trial court for fresh consideration and disposal. Therefore, the petitioner being a party to those proceedings is fully aware of those developments. However, he remained absent on 17.11.1984 before the trial court and consequently, his suit was dismissed for default and the respondents' suit was decreed exparte on the said date. No doubt, the petitioner filed applications in I.A.Nos.122 and 123 of 1985, one to set aside the exparte decree and another to restore the suit filed by him. It is also an admitted fact that as against the order of remand passed by the Appellate Court, the petitioner filed C.M.A.Nos.302 and 303 of 1985. However, on 20.11.1991, the petitioner had withdrawn those appeals and consequently, the same were dismissed. Nearly 10 years thereafter, I.A.Nos.122 and 123 of 1985 were dismissed for default on 27.07.2001. According to the petitioner, he came to know about the dismissal of those applications only in the month of June 2007. Except stating so in the affidavit, he has not proved the same by examining any independent witness or marking any documents. On the other hand, he examined himself as P.W.1. As rightly pointed out by the learned senior counsel for the respondents, a perusal of his deposition, as P.W.1, would show that he has not stated anywhere that he came to know about the exparte order only in June 2007. Further, it is his case that his health was seriously affected due to Asthma and Anxiety in the year 2001 and hence he was not able to move from home and he was taking treatment. No doubt, the petitioner had marked the Medical Certificate issued by the doctor and examined him as P.W.2. Further, it is his case that his health was seriously affected due to Asthma and Anxiety in the year 2001 and hence he was not able to move from home and he was taking treatment. No doubt, the petitioner had marked the Medical Certificate issued by the doctor and examined him as P.W.2. From the evidence of the doctor as well as by perusing the said Medical Certificate, it could be seen that the petitioner was suffering from Asthma and Anxiety for continuous period. But, at the same time, that itself cannot be a ground or reason to hold that the petitioner was reasonably prevented from filing applications before the court, continuously for a period of 2,121 days. Certainly, such ailment, even assuming that the petitioner has suffered continuously, cannot be construed as the valid reason for condoning such abnormal delay of 2,121 days. The petitioner further contended that his counsel failed to intimate the stage of the case and therefore, he was not in a position to file the applications in time. Though he has stated so in the affidavit, he has not spoken about the same as P.W.1 and on the other hand, it is stated by him as follows: "TAMIL” 7. Therefore, the only reason pleaded by the petitioner and spoken to as P.W.1 with supporting evidence of P.W.2 is his illness. As already pointed out, such illness cannot be shown as a reason for condoning a period of 2,121 days. The court below has rightly considered all these aspects and rejected the application. A perusal of the order passed by the court below more particularly at paragraph No.10, would show that neither Ex.P1 Medical Certificate nor the evidence of the doctor, who was examined as P.W.2, is believable. A perusal of the said Medical Certificate would also show that the petitioner was only advised treatment for Asthmatic Bronchitis and Anxiety from 20.07.2001 to 25.05.2007 and that he was fit to join duty from 26.05.2007. Thus, it could be seen that the petitioner was only advised by the said doctor for treatment and it was not stated as if he was giving continuous treatment to the petitioner during the said period. The said undated certificate was rightly rejected by the court below as it gives all sorts of doubt about its genuineness. Thus, it could be seen that the petitioner was only advised by the said doctor for treatment and it was not stated as if he was giving continuous treatment to the petitioner during the said period. The said undated certificate was rightly rejected by the court below as it gives all sorts of doubt about its genuineness. Even assuming that the petitioner was taking continuous treatment during the relevant period, it is unbelievable that he was totally immobilized on all those 2121 days. 8. It is also observed by the court below that the petitioner was admittedly doing blue metal business and he was not employed either in Government or private establishment. However, the said Medical Certificate was issued by stating that the petitioner was fit to join duty on 26.05.2007. It is also observed by the court below that the petition was filed on 09.07.2007 seeking to condone the delay, whereas Ex.P1 Medical Certificate was produced in the Court only on 28.03.2008. Thus there is every possibility to doubt about the issuance and genuineness of the said Certificate. The examination of the doctor who issued certificate as P.W.2 would also show that he has not maintained any medical record in respect of the petitioner, even though he claimed that he had given treatment to the petitioner for nearly seven years. Except marking Ex.P1 Medical Certificate, no other documents were filed or produced before the Court to show that the petitioner was under his treatment continuously for seven years. Therefore, the evidence of the doctor also cannot be accepted as the statement of truth. According to the petitioner, he suffered with Asthma and Anxiety. Needless to say that such ailment is not a disease and people with such ailment are attending their routine work and duty except for a certain short period during which time the sufferance would be severity. Therefore, it cannot be accepted that for the continuous period of seven years, the petitioner was prevented from meeting his counsel to file the application to condone the delay due to such ailment. The Court below has also taken note of the subsequent development whereby a right has been accrued to a third party. It has pointed out that the respondent, taking note of the decree passed on 17.11.1984, settled the property in favour of her daughter. 9. The Court below has also taken note of the subsequent development whereby a right has been accrued to a third party. It has pointed out that the respondent, taking note of the decree passed on 17.11.1984, settled the property in favour of her daughter. 9. It is further contended by the petitioner that his counsel has failed to intimate the stage of the case and therefore, that was also stated as one of the reason for such delay. No prudent litigant would keep quiet for nearly ten years without even knowing the stage of the case from his counsel. Even assuming that the counsel has not informed the stage of the case, the petitioner cannot keep quiet for nearly ten years and come before the court with a condone delay petition by stating that his counsel has not informed about the stage of the case. Such contention cannot be entertained as a reason for condoning the delay, especially when the delay is enormous running to several years. Even assuming that the same as a true statement, the petitioner has not examined his counsel to prove such contention. Therefore, I find the reasons stated by the petitioner are totally imaginary and the court below has rightly rejected the same. 10. At this juncture, it is useful to refer the decision in 2008(5) CTC 651, Union Bank of India vs. K.R.Jewellers and Others, wherein a Division Bench of this Court has held that mere allegation of negligence against a counsel is not a ground to condone the delay. It is also observed therein that the party has equal responsibility to follow up the matter. 11. Let me consider the case laws cited by the learned counsel for the petitioner. (i) In AIR 1981 SCC 1400, Rafiq and another v. Munshilal and another, the Hon'ble Supreme Court has observed that a party, who has done everything in his power and expected of his lawyer to do his duty, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. The facts of the said case would show that though an affidavit was sworn on 29.10.1980, the same was not presented to the court till November 12, 1980 by the lawyer and therefore, that slackness on the part of the Advocate was taken note of by the Appellate Court to observe as stated above. Here, the facts are totally different. The facts of the said case would show that though an affidavit was sworn on 29.10.1980, the same was not presented to the court till November 12, 1980 by the lawyer and therefore, that slackness on the part of the Advocate was taken note of by the Appellate Court to observe as stated above. Here, the facts are totally different. First of all, the delay is 2,121 days. Though the non intimation by the lawyer is stated as one of the reason, such cannot justify the inaction of the petitioner for a continuous period of 10 years. At any event, the petitioner has not proved the inaction/deliberate omission or misdemeanour of his counsel by examining anybody, except by making a bald statement in the affidavit. In fact the petitioner has not spoken about the same when he was examined as P.W.1. He has only spoken about his illness and not stated anything about his lawyer's inaction. Therefore, in my considered view, the above decision is not applicable to the facts and circumstances of the case. (ii) The next decision relied on by the learned counsel is reported in 2008 (1) CTC 785 , Ravi Enterprises v. Indian Bank. In the said decision, the Hon'ble Supreme Court has observed that the courts should not prefer to adopt a pedantic approach while considering the condone delay petition and on the other hand, a pragmatic approach has to be made to deliver substantial justice overriding technical consideration. There is absolutely no quarrel about the said proposition. But at the same time, when the court has found that the reasons adduced by the petitioner are utter falsehood, then the petitioner cannot be permitted to contend that a pragmatic approach has to be made to condone the delay of 2,121 days. Needless to say that each and every case has to be considered on its own merits and circumstances. A perusal of the facts of the above case before the Apex Court would show that the petitioners therein was ready to settle the matter consciously and judicially and taking note of all attendants circumstances together therein, the Apex Court came to the conclusion that the delay has to be condoned. Thus, the facts and circumstances of the said case are totally different and hence the said decision cannot be applied to the present case. Thus, the facts and circumstances of the said case are totally different and hence the said decision cannot be applied to the present case. (iii) The other decision relied on is reported in AIR 1987 Supreme Court 1353, Collector, Land Acquisition v. Katiji. It is cited by the learned counsel only to contend that the court should adopt liberal approach while considering the application for condonation of delay. No doubt, the Apex Court has also observed that refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. A bare perusal of the said case would show that a delay of four days was refused to be condoned in preferring an appeal by the State of Jammu & Kashmir arising out of a decision enhancing compensation in respect of the acquisition of lands. Therefore in my considered view, the general observations made by the Apex Court in the above case cannot be taken advantage of by the petitioner in support of his case when the facts and circumstances in both the matters are totally different and distinguishable. (iv) Yet another decision relied on by the petitioner's counsel is reported in2008(3)MLJ 268, Adhikesavan v. Kalavathi. A learned Single Judge of this Court has observed therein that when an exparte decree was passed due to the fact that the counsel for the defendant did not intimate him about the hearing, then the same is liable to be set aside since the defendant had not committed any deliberate act. In my considered view, if an allegation is made about the inaction of the counsel or non intimation by him with regard to the stage of the proceedings, such allegation made in the pleadings is to be proved by the petitioner by letting in substantial evidence. Without doing so, mere making of an allegation in the affidavit cannot be taken as a true statement more particularly, when the delay caused is nearly 2,121 days, in this case. Therefore, the above decision of this Court cannot be applied uniformly in all cases without going into the facts and circumstances of each case. Without doing so, mere making of an allegation in the affidavit cannot be taken as a true statement more particularly, when the delay caused is nearly 2,121 days, in this case. Therefore, the above decision of this Court cannot be applied uniformly in all cases without going into the facts and circumstances of each case. (v) The last decision relied on is reported in 2011(3)CTC 168, Meenakshisundaram Textiles v. Valliammal Textiles Ltd. The said decision was relied on by the learned counsel for the petitioner to contend that the exparte decree passed by the court is without application of mind and therefore, the same has to be set aside. In my considered view, the said decision is not applicable to the present case in view of the fact that the issue before this Court is only with regard to the delay of 2,121 days in filing the application to restore the petitions which were in turn filed for setting aside the exparte decree. Thus, I am of the view that all the above decisions are not supporting the case of the petitioner in any manner. 12. The learned senior counsel appearing for the respondent relied on several decisions as referred to supra. However, I am referring only few decisions hereunder in order to avoid repetition/multiplication of the decisions on the same issue. (i) In 2003(1) L.W.585, Sundar Gnanaolivu v. Rajendran Gnanavolivu, the Hon'ble Division Bench of this Court has observed that there is total lack of bonafides on the part of the petitioner therein while coming forward with the application to condone the delay, the said application does not deserve the liberal approach formula. The relevant observation at paragraph Nos.15 and 19 are extracted hereunder: "15. On a conspectus reading of the principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bonafides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. 19. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. 19. When there is total lack of bonafides on the part of the petitioner while coming forward with the present application, going by the principles set out in the various judgments, we are of the view that this case falls within the exception to the rule and does not deserve the liberal approach formula in matters relating to condonation of delay. We are therefore not satisfied with the reasons adduced by the petitioner while seeking for condonation of delay of 431 days in filing the first appeal. We, therefore decline to condone the delay and accordingly dismiss the application with costs or Rs.1000/-. Going by the averments contained in the affidavit of the counsel, the veracity of which can be reasonably relied upon, it transpires that the Power Agent contacted the counsel only in the month of December 2000. Therefore, if that is the only inference possible, then it will have to be held that all other averments contained in the petitioner's affidavit sworn to by the Power Agent is totally devoid of truth and has been deliberately made for the purpose of this application. We have to therefore hold that the petitioner has not come forward with clean hands while seeking for condonation of delay of more than a year and in such circumstances, the bonafides of the petitioner proved to be demonstrably lacking." (ii) In a decision reported in 2011(4) SCC 363 , Lanka Venkateswarlu v. State of Andhra Pradesh and Others, the Hon'ble Supreme Court has observed at paragraph Nos.19,28,29 and 23 as follows: "The Courts in this country, including the Supreme Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under section 5 of the Limitation Act. However, the concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. Especially, in cases where the court concludes that there is no justification for the delay. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally." It is also further observed by the Apex Court in the very same decision at paragraphs 28 and 26 as follows: "In this case, it is difficult to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. Such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the Government Pleaders. The approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties." (iii) In AIR 2012 Supreme Court 1628, Maniben Devraj Shah v. Municipal Corporation of Brihan, Mumbai, the Apex Court held at paragraph No.18 as follows: "What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bonafide 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 bonafides, 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. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest." The facts of the above said case would disclose that there is a delay of more than 7 years in filing the application under section 5 of the Limitation Act. 13. Considering all these facts and circumstances and considering the above referred decisions, I am of the firm view that the court below has rightly rejected the applications filed by the petitioner with which I do not find any infirmity or irregularity. Hence, the civil revision petitions are dismissed. No costs. The connected miscellaneous petition is also dismissed.