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2015 DIGILAW 2668 (MAD)

Paraman v. Kumarayee Ammal

2015-07-31

K.K.SASIDHARAN

body2015
ORDER The first Appellate Court dismissed the application filed by the petitioners to condone the delay in preferring the appeal. Feeling aggrieved by the said order, the petitioners are before this Court. 2. Heard the learned counsel for the petitioners and the learned counsel appearing on behalf of respondent. 3. The respondent filed a suit in O.S.No.33 of 2006 against the petitioners. It was a suit for specific performance. The Trial Court decreed the suit, notwithstanding the contention taken by the petitioners that they have not executed the document in question and that the properties are ancestral properties. 4. The petitioners filed an appeal before the Principal Subordinate Court, Dindigul, along with an application to condone the delay of 1773 days. The learned Appellate Judge calculated the delay right from the date of exparte judgment, notwithstanding the fact that the petitioners are entitled to deduct the period during which the copy application was pending, which was ultimately struck off from file. 5. The exparte decree in O.S.No.33 of 2006 was passed on 08 September, 2008. The petitioners filed copy application on 10 September, 2008. Since copy application was not complied with, it was struck off from file. This period was not taken note of by the learned Appellate Judge while refusing to condone the delay. 6. The Supreme Court in M.K.Prasad v. P.Arumugam [ 2001(6) SCC 176 ], while considering the question regarding delay in applying for setting aside the exparte decree, observed that the Court ought to keep in mind the judgment impugned in the matter, the extent of property involved and the stake of parties, while deciding an application to set aside the exparte decree. 7. 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. 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. 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." 8. The Supreme Court in State of Nagaland v. Lipok AO [ 2005 (3) SCC 752 ], indicated that the merits should be preferred and the case should not be turned down on technicalities of delay in presenting the appeal. The relevant observation reads thus: "13. The Supreme Court in State of Nagaland v. Lipok AO [ 2005 (3) SCC 752 ], indicated that the merits should be preferred and the case should not be turned down on technicalities of delay in presenting the appeal. The relevant observation reads thus: "13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal." 15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intention or otherwise- - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factor which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit..................." 9. 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. 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. 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." 10. 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. 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." 11. 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." 12. 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. "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." 13. The learned Appellate Judge wanted the petitioners to explain each day's delay. The period during which earlier copy application was pending was also calculated and taken against the petitioners. I am, therefore, of the view that the petitioners must succeed. 14. In the result, the order dated 23 January, 2015 is set aside. The application in I.A.No.98 of 2013 is allowed. 15. The learned Principal Subordinate Judge, Dindigul, is directed to register the appeal filed against the judgment and decree in O.S.No.33 of 2006, within a period of one week from the date of receipt of a copy of this order and decide the matter on merits and as per law. 16. In the upshot, I allow the Civil Revision Petition. No costs.