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2013 DIGILAW 714 (MAD)

Mallika v. Salem Highways Officials Co-op House Building Society Ltd.

2013-02-01

T.MATHIVANAN

body2013
JUDGMENT 1. This memorandum of civil revision in CRP(NPD)No.854 of 2006 is directed against the fair and decretal order dated 14.02.2006 and made in I.A.No.654 of 2006 in O.S.No.546 of 1996 on the file of the learned I Additional District Munsif at Salem, whereas the memorandum of civil revision in CRP(NPD)No.855 of 2006 has been directed against the fair and decretal order dated 14.02.2006 and made in I.A.No.381 of 2005 in O.S.No.1062 of 1994 on the file of the learned I Additional District Munsif, Salem. 2. As the parties to the civil revisions are one and the same and the issue involved in these revision petitions are also one and the same these memorandums of civil revisions, have been clubbed together, heard simultaneously and disposed of in this common order. 3. The suit in O.S.No.546 of 1996 appears to have been filed by the first respondent herein as against the revision petitioner on the file of the learned I Additional District Munsif, Salem seeking the relief of declaration of title in respect of the suit property as well as for a mandatory injunction to direct the revision petitioner to remove the super structure constructed on the suit property and deliver the vacant possession. 4. On the other hand, the revision petitioner herein has filed the other suit in O.S.No.1062 of 1994 against the respondent in CRPNo.55 of 2006 seeking the relief of permanent injunction restraining him and their men from in any manner interfering with her peaceful possession and enjoyment in respect of the suit property. 5. It is revealed from the materials available on records that the suit in O.S.No.546 of 1996 filed by the respondents in CRP(NPD)No.854 of 2006 was decreed ex parte. The other suit filed by the revision petitioner viz.,O.S.No.1062 of 1994 was dismissed for default. It appears that in order to condone the delay of 1015 days in filing an application for setting aside the ex parte decree passed in O.S.No.546 of 1996, the revision petitioner has filed an application in I.A.No.654 of 2004 under Section 5 of Limitation Act. That petition was resisted by the respondent herein. However, after hearing both sides the learned I Additional District Munsif, had proceeded to dismiss the petition in I.A.No.654 of 2004 on 14.02.2006. 6. That petition was resisted by the respondent herein. However, after hearing both sides the learned I Additional District Munsif, had proceeded to dismiss the petition in I.A.No.654 of 2004 on 14.02.2006. 6. Similarly, the revision petitioner has also filed an another application in I.A.No.381 of 2005 to condone the delay of 952 days in filing an application to restore the suit in O.S.No.1062 of 1994. This application was also dismissed. 7. Challenging the order of dismissal dated 14.02.2006 made in both the applications viz., I.A.Nos.654 of 2004 and 381 of 2005, the revision petitioner has preferred the above revisions. 8. Mr.S.Jabarajan learned counsel for the revision petitioner has submitted that since the revision petitioner had seriously fallen ill and had been taking treatments, she was not able to contest and prosecute the suits in O.S.Nos.546 of 1996 and 1062 of 1994 and therefore, those suits were decreed ex parte and dismissed for default respectively and the reasons adduced by the revision petitioner were not considered by the learned trial judge with proper appreciation and therefore he has urged to set aside the impugned orders. 9. On the other hand Mr.P.Jagadeesan learned counsel for the respondents has vehemently objected the submissions made on behalf of the revision petitioner and he has argued that since the revision petitioner has miserably failed to show the "sufficient cause" which is the main ingredient to condone the abnormal delay caused in filing the application to set aside the ex parte decree as well as to set aside the order of dismissal of the suit, the orders of the learned trial judge did not require any interference and therefore, the revision petitions are liable to be dismissed. 10. As submitted by the learned counsel for the respondents, it is obvious to note here that the suit in O.S.No.1062 of 1994 is relating to the year 1994 and the other suit in O.S.No.546 of 1996 is relating to the year 1996 and there was a delay of 1015 days in filing an application for setting aside the ex parte decree passed in O.S.No.546 of 1996, and also there was a delay of 952 days in filing an application to restore the suit in O.S.No.1062 of 1994. 11. 11. It is settled principle of law that the length of delay is not the criterion to allow the application filed under Section 5 of Limitation Act, but the exposition of sufficient cause alone is a criterion. If the intention of the applicant reflects his dilatory tactics to prolong and protract the suit then the doctrine of liberal approach cannot be applied by this court by exercising it's discretionary powers. If the delay appears to have been caused on account of genuine reasons and sufficient cause has been shown, then there may not be any difficulty to condone the delay by applying the principle of "liberal approach". However, the court itself is having discretionary power, either to allow or dismiss the application which is filed under Section 5 of Limitation Act and therefore, keeping in view of the above facts, this court is of considered view that the doctrine of liberal approach can be exercised in this case on some conditions. 12. Accordingly, the revision petitions are allowed on condition that the revision petitioner deposits a sum of Rs.5,000/-., towards costs (i.e.,Rs.2,500/- in respect of CRP (NPD) No. 854 of 2006 and another sum of Rs.2,500/- in respect of the another CRP (NPD) No. 855 of 2006) to the respondent through their counsel within a period of two weeks from the date of receipt of a copy of this order. It is made clear that if the revision petitioner fails to pay the cost as afore stated, then the order passed in these two revision petitions shall automatically stands be canceled without any further reference to this court.