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2015 DIGILAW 2579 (MAD)

Tmt. Jayalakshmi v. Hotel Sivapriya

2015-07-22

K.K.SASIDHARAN

body2015
ORDER This Civil Revision Petition is directed against the order dated 13 August, 2010 in I.A.No.170 of 2010, whereby and whereunder, the learned Subordinate Judge, dismissed the application to condone the delay of 163 days in filing the application to restore I.A.No.533 of 2008, which was dismissed for default. 2. The suit in O.S.No.54 of 2005 was filed by the petitioner before the Sub Court, Palani. The suit was contested by the respondents. 3. The petitioner failed to appear before the Trial Court and the same resulted in dismissing the suit for non-prosecution. 4. The petitioner filed an application in I.A.No.533 of 2008 to set aside the order dismissing the suit for non-prosecution. The application was dismissed for default. Thereafter, the petitioner filed I.A.No.170 of 2010 to set aside the order in I.A.No.533 of 2008, after condoning the delay of 163 days. The learned Trial Judge declined to entertain the application on the ground that the petitioner has not produced documents to substantiate the reasons for delay. The order dated 13 August, 2010, is under challenge in this Civil Revision Petition. 5. Heard the learned counsel for petitioner and the learned counsel appearing on behalf of respondents. 6. The suit in O.S.No.54 of 2005 was filed by the petitioner, praying for a decree of declaration and permanent injunction. The petitioner has taken up several contentions to prove that she is entitled to a decree of declaration with respect to the property in R.S.No.78/C, Kodaikanal Village. The petitioner appears to have gone abroad in connection with the treatment of her daughter who was in United States of America. The Trial Court, having found that the petitioner failed to appear on the date of hearing, dismissed the suit. 7. The petitioner filed an application in I.A.No.533 of 2008 within the statutory period. However, she failed to appear before the Court on the date of hearing on the ground that she was laid up. The Trial Court dismissed the application in I.A.No.533 of 2008. 8. The petitioner, in her application in I.A.No.170 of 2010, explained her illness and other difficulties. The learned Trial Judge dismissed the application solely on the ground that the petitioner has not produced documents to substantiate her contention as to when she came back to India. By not condoning the delay, the learned Trial Judge denied the petitioner of an opportunity to prove her case. 9. The learned Trial Judge dismissed the application solely on the ground that the petitioner has not produced documents to substantiate her contention as to when she came back to India. By not condoning the delay, the learned Trial Judge denied the petitioner of an opportunity to prove her case. 9. I have perused the plaint in O.S.No.54 of 2005. The petitioner has given details of her title to the property. The plea taken by the petitioner requires to be considered, in the light of the defence taken by the respondents. The petitioner has given sufficient reasons for condoning the delay. It is true that each day's delay has not been explained. Even then, there are materials to condone the delay of 163 days. 10. The Supreme Court in Ram Nath Sao v. Gobardhan Sao [ 2002(3) SCC 195 ], explained the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963. The Supreme Court very clearly observed that explanation for the delay should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case. The Supreme Court said: "12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 11. The Supreme Court in Parimal vs. Veena [2011(2) Scale 302], explained the concept of "sufficient cause". The Supreme Court said: "9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. 11. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. 11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it." 12. The Supreme Court in S.Ganesharaju vs. Narasamma [2012(4) Scale 152], observed that matters should be heard on merits rather than shutting the doors at the threshold. The relevant observation reads thus: "15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act. 1963, has to be given a liberal construction so as to advance substantial justice. 16. Unless Respondents are able to show malafide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by. 17. Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. 18. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. 19. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter." 13. In GMG Eng. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter." 13. In GMG Eng. Industries vs. ISSA Green Power Solution [2015(6) Scale 551], the Supreme Court observed that the term "sufficient cause" must receive liberal construction. "8. It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the Appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence." 14. The Supreme Court in N.Balakrishnan v. M.Krishnamurthy [ 1998(7) SCC 123 ], observed that the superior Court would be free to consider the cause shown for the delay afresh and to come to its own finding. "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act 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 uncontainable due to want of acceptable explanation whereas in certain other cases delay of 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 regional 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 untrammeled by the conclusion of the lower court." 15. 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 untrammeled by the conclusion of the lower court." 15. The learned Trial Judge took a strict view of the matter to make it appear as if by prolonging the matter, the ultimate beneficiary is the petitioner. I am, therefore, of the view that the impugned order is liable to be set aside. 16. In the result, the impugned order dated 13 August, 2010, is set aside. The application in I.A.No.170 of 2010 is allowed. 17. The learned Subordinate Judge, Palani, having camp at Kodaikanal, is directed to dispose of the application in I.A.No.533 of 2008, on merits and as per law, as expeditiously as possible and in any case, within a period of two months from the date of receipt of a copy of this order. 18. In the upshot, I allow the Civil Revision Petition. No costs.