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2014 DIGILAW 3894 (MAD)

K. Radha v. Nagamma

2014-10-16

K.KALYANASUNDARAM

body2014
Judgment : 1. Challenging the order passed in I.A.No.896 of 2011 in O.S.No.189 of 1996 by the learned District Munsif-cum-Judicial Magistrate No.1, Hosur, the present revision is filed. 2. The petitioner is arrayed as 9th defendant in O.S.No.189 of 1996. The respondents have filed the suit for partition and separate possession of their shares in the suit property. The petitioner was set ex-parte and a preliminary decree was passed on 19.02.2007. The decree holder filed I.A.No.482 of 2008 for passing final decree. The learned District Munsif-cum-Judicial Magistrate No.1, Hosur, appointed an Advocate Commissioner to divide the property by meats and bounds and on the basis of the report of the Advocate Commissioner, final decree was passed on 21.01.2010. 3. The petitioner filed I.A.No.895 of 2011 to condone the delay in filing the application to set aside the preliminary decree and I.A.No.896 of 2011 to condone the delay of 565 days in filing the application to set aside the final decree. The petitioner has filed the applications contending that she came to know about the ex-parte final decree only after receiving the notice in execution petition and that her brothers informed her that they would follow up the case and she was on the hope that her brothers would look after the Court proceedings. 4. Resisting the applications, the respondents have filed a detailed counter. The learned District Munsif-cum-Judicial Magistrate No.1, Hosur, dismissed the applications. Aggrieved by the order, the present revision is filed. 5. The learned counsel for the petitioner submitted that the petitioner had filed two applications in I.A.Nos.895 and 896 of 2011 to condone the delay in filing the application to set aside the preliminary decree and final decree, the respondents had filed counter only to I.A.No.895 of 2011 and filed a memo in I.A.No.896 of 2011 to adopt the counter filed in I.A.No.895 of 2011; that the counter filed in I.A.No.895 of 2011 cannot be taken into account to consider the averments made in I.A.No.896 of 2011. The learned counsel submitted that the petitioner has specifically stated that she did not receive notice in the final decree proceedings and therefore the delay has to be condoned and the petitioner should be given an opportunity to defend the case. 6. The learned counsel submitted that the petitioner has specifically stated that she did not receive notice in the final decree proceedings and therefore the delay has to be condoned and the petitioner should be given an opportunity to defend the case. 6. Per contra, the learned counsel for the respondents submitted that the petitioner was a minor aged about 14 years at the time of filing of the suit and after she attained majority, the petitioner filed an application to declare her as major in I.A.No.206 of 1999 and the petition was ordered on 31.03.1999. The defendants 1 to 8 are parents, brothers and sisters of the petitioner and they have engaged a common advocate to defend their case. It is further contended that the suit was filed in the year 1996 and it was listed for trial on 08.06.2000. On that date, P.W.1 was examined and the case was adjourned to 12.06.2000 for cross-examination of P.W.1, the defendants remained ex-parte, so a decree was passed on 12.06.2000. Thereafter, the defendants 1 to 9 filed I.A.No.817 of 2000 to set aside the ex-parte decree and it was allowed. Subsequently, in the year 2002, the defendants were set ex-parte and on an application, the ex-parte decree was set aside. It is the contention of the respondents that the petitioner was aware of the entire suit proceedings and this petition is filed only to drag on the litigation endlessly. 7. It is seen from the records that the respondents had filed the suit for partition and separate possession on 06.10.1995. The petitioner was arrayed as 9th defendant in the suit and she filed written statement along with the defendants 1 to 8. It is not in dispute that the defendants 1 to 8 are the parents, brothers and sisters of the petitioner herein. It is further noted that when the suit was posted on 12.06.2000 for cross-examination of P.W.1, the defendants failed to cross examine the witness, hence an ex-parte decree was passed against them. The defendants 1 to 9 filed I.A.No.817 of 2000 to set aside the ex-parte decree. Again, when the suit was posted for trial on 01.04.2002, there was no representation for the defendants and an ex-parte decree was passed on 04.04.2002. The petitioner along with other defendants filed I.A.No.538 of 2002 to set aside the ex-parte decree. The defendants 1 to 9 filed I.A.No.817 of 2000 to set aside the ex-parte decree. Again, when the suit was posted for trial on 01.04.2002, there was no representation for the defendants and an ex-parte decree was passed on 04.04.2002. The petitioner along with other defendants filed I.A.No.538 of 2002 to set aside the ex-parte decree. When the suit was again posted for trial on 05.12.2006, there was no representation for the defendants and hence the suit was adjourned for cross-examination of P.W.1. Even on 19.02.2007, the suit was decreed ex-parte against the petitioner. 8. The main contention of the petitioner in the affidavit is that she came to know about the ex-parte decree only after receiving notice in the execution proceedings and her brothers also have not informed about the suit proceedings. But the conduct of the petitioner and the defendants 1 to 8 would reveal that they are not interested to get along with the case, but on one reason or other they successfully dragged the case for about 14 years even after commencement of the trial. The learned District Munsif-cum-Judicial Magistrate No.1, Hosur, after considering the conduct of the petitioner rejected the petition. The records reveal that the reasons assigned by the petitioner are palpably untrue. 9. In this context, it is useful to refer the principles laid down by the Hon'ble Supreme Court reported in 2013(5) CTC 547 – Esha Bhattacharjee v. Managing Committee of Raghunathpur, Nafar Academy and others. "(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms 'sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The Concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of Prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and he said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of Law of Limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." In the above judgment, the Hon'ble Apex Court has held that while considering the petition for condonation of delay, the conduct, behaviour and attitude of the party and the length of delay have also to be taken into consideration. 10. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." In the above judgment, the Hon'ble Apex Court has held that while considering the petition for condonation of delay, the conduct, behaviour and attitude of the party and the length of delay have also to be taken into consideration. 10. In the case on hand, the petitioner has not shown sufficient cause for condoning the delay. In the light of the judgment of the Hon'ble Apex Court and in view of my findings supra, I do not find any illegality or irregularity in the order of the Court below. Hence, this Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.