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2013 DIGILAW 823 (MAD)

Azeezhur Rahman v. Aysa Begam

2013-02-08

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. This Civil Revision Petition is filed against the order passed in I.A.No.301 of 2009 in I.A.No.655 of 1998 in A.S.No.347 of 1997 on the file of the Principal District Judge, Erode, whereby the Court below dismissed the application filed by the petitioner under Order 41 Rule 3(a) r/w Section 151 of Civil Procedure Code to condone the delay of 3931 days in filing an application to restore I.A.No.655 of 1998, which came to be dismissed on 9.10.1998. 2. The short facts, which are necessary for considering this civil revision petition, are as follows: The petitioner herein is the plaintiff. He filed a suit in O.S.No.431 of 1996 for specific performance on the file of the learned Subordinate Judge, Erode against the respondents/defendants. The said suit was dismissed on merits by the trial Court by its judgment and decree dated 18.12.1996. Aggrieved against the said judgment and decree, the petitioner filed an appeal in A.S.No.347 of 1987 before the District Judge, Erode. The said appeal came to be dismissed for default on 17.02.1998 as the counsel for the petitioner/appellant reported no instructions and the appellant was also called absent. Thereafter, the petitioner filed I.A.No.655 of 1998 in A.S.No.347 of 1997 on 9.3.1998 on the file of the District Judge, Erode for restoration of the appeal. In the said application, the appellate Court passed an order that the petition will be allowed on payment of Rs.300/- to the other side on or before 8.10.1998. Accordingly, the matter was posted on 9.10.1998 for reporting compliance. However, as the cost was not paid, the said application, which was filed by the petitioner to restore the appeal was dismissed on 9.10.1998 by the Court below. After nearly about eleven years, I.A.No.301 of 2009 has been filed by the petitioner to restore I.A.No.655 of 1998 with a delay of 3931 days and the same was dismissed on 1.11.2010 by the learned Principal District Judge, Erode, against which, the present Civil Revision Petition is filed. 3. Heard the learned counsel for the petitioner as well as the respondents and perused the records placed before the Court. 4. No doubt, the petitioner had filed a restoration application in I.A.No.655 of 1998 on 9.3.1998 immediately after the dismissal of the appeal on 17.02.1998. 3. Heard the learned counsel for the petitioner as well as the respondents and perused the records placed before the Court. 4. No doubt, the petitioner had filed a restoration application in I.A.No.655 of 1998 on 9.3.1998 immediately after the dismissal of the appeal on 17.02.1998. When a conditional order was passed in I.A.No.655 of 1998 calling upon the petitioner to pay a sum of Rs.300/- on or before 8.10.1998, admittedly, the petitioner had not chosen to pay the said amount to the other side within a time stipulated. The Court below noting about the non payment of costs, dismissed the said application on 09.10.1998. It is also a fact that the petitioner did not challenge the said order passed on 9.10.1988 in the manner known to law, but on the other hand, had chosen to file I.A.No.301 of 2009 after a period of more than ten years seeking for restoration of I.A.No.655 of 1998. 5. I perused the affidavit filed in support of I.A.No.301 of 2009 filed by the petitioner before the Court below. 6. The sum and substance of the affidavit filed by the petitioner shows that the counsel did not inform about the order passed on 9.10.1998 and the petitioner was also not feeling well for sometime. Absolutely, there are no valid reasons shown in the affidavit filed by the petitioner before the Court below seeking to condone the delay of 3931 days. The Court below, has specifically noted that the petitioner has not given any satisfactory explanation for condoning the delay and also had not challenged the order passed on 9.10.1998. The Court below also found that the petitioner's counsel died three years back and as such, the petitioner was not in a position to conduct the case properly. Thus by considering all these facts and circumstances and also the other material circumstances of the case, the Court below rightly rejected the application filed by the petitioner. I find no illegality or infirmity in the order passed by the Court below. Even otherwise, I failed to understand as to how the application in I.A.No.301 of 2009 to restore I.A.No.655 of 1998 with a delay of 3931 days is maintainable especially the order dated 9.10.1998 passed in I.A.655 of 1998 was on merits, after hearing both sides. I find no illegality or infirmity in the order passed by the Court below. Even otherwise, I failed to understand as to how the application in I.A.No.301 of 2009 to restore I.A.No.655 of 1998 with a delay of 3931 days is maintainable especially the order dated 9.10.1998 passed in I.A.655 of 1998 was on merits, after hearing both sides. If at all, the petitioner is aggrieved, he ought to have challenged the order dated 9.10.1998 before the appellate/revisional forum then and there. Without doing so, filing of the application like one, which is the subject matter before this Court, is not at all maintainable and proper course of action. At any event as I have already pointed out that the petitioner had not at all satisfied the reasonable cause to condone the delay of 3931 days, I find no infirmity in the order of the Court below. 7. At this juncture, it is useful to refer the following observations of the Hon'ble Supreme Court rendered in the matter of Section 5 applications, reported inMANIBEN DEVRAJ SHAH-VS.MUNICIPAL CORPORATION OF BRIHAN, MUMBAI (2012(5)SCC 157) at paras 23 and 24:- "23. 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. 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." 8. Considering all these the facts and circumstances, finding no merits in the Civil Revision Petition, this Court is inclined to dismiss the Civil Revision Petition and the same is dismissed. No costs. Considering all these the facts and circumstances, finding no merits in the Civil Revision Petition, this Court is inclined to dismiss the Civil Revision Petition and the same is dismissed. No costs. Consequently, connected M.P.No.1 of 2011 is closed.