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2018 DIGILAW 1530 (MAD)

Velmurugan v. Jayaraman

2018-04-25

M.V.MURALIDARAN

body2018
JUDGMENT : 1. The petitioner has filed this revision under Section 151 of the Code of Civil Procedure against the order and decreetal order made in I.A.No.2847 of 2006 in unnumbered O.S. (Ref.O.S.No.5 of 1998 on the file of the Principal Sub Judge, Puducherry), dated 11.12.2006 on the file of the Principal District Munsif, Puducherry. 2. The petitioner is the sixth defendant in the suit. The first respondent is the plaintiff. The first respondent/plaintiff filed the suit for partition and separate possession. The said suit was posted for filing of written statement. Since the petitioner/sixth defendant was suffering from jaundice and was undergoing ayurvedic treatment and was unable to contact his counsel to file his written statement on 26.02.2003, he was set ex parte. Thereafter, the suit was decreed on 22.04.2003 in favour of the first respondent/plaintiff. The petitioner filed I.A.No.1893 of 2003 seeking to condone the delay of 46 days for filing an application for setting aside the ex parte judgment and decree dated 22.04.2003. 3. The said interlocutory application was transferred to the file of the Principal District Munsif, Puducherry and numbered as I.A.No.2847 of 2006 in unnumbered O.S. The learned Principal District Munsif, Puducherry, by order dated 11.12.2006, dismissed the petition holding that the petitioner has not shown sufficient cause for condonation of the delay. 4. Assailing the said order, the present revision is filed. 5. The learned counsel appearing on behalf of the petitioner submitted that the court below failed to exercise the jurisdiction liberally in condoning the delay of 46 days in the suit for partition and separate possession and has shut the door's of justice, without giving credence to the plea of the petitioner that he was suffering from ailment and was taking ayurvedic treatment. 6. The learned counsel appearing on behalf of the first respondent reiterated the reasons that weighed with the Court below and prayed for dismissal of this petition. 7. I heard Mr.A.Thamizharasan, learned counsel for the petitioner and Mr.R.Natarajan, learned counsel for the 1st respondent. and perused the documents available on record. There was no representation on behalf of the respondents 2 to 8. 8. The delay in filing the application to set aside the ex parte decree is 46 days and the said application filed under Section 5 of the Limitation Act had been dismissed by the trial Court. 9. and perused the documents available on record. There was no representation on behalf of the respondents 2 to 8. 8. The delay in filing the application to set aside the ex parte decree is 46 days and the said application filed under Section 5 of the Limitation Act had been dismissed by the trial Court. 9. The Hon'ble Supreme Court, time and again, held that the power to condone delay by enacting Section 5 of the Limitation Act, 1963 is to enable the courts to do substantial justice to parties by disposing of matters on merits; that the expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which serves the ends of justice which is the life purpose for the existence of the institution of courts; substantial justice deserves to be preferred as against technical considerations; and the courts should prefer to deliver justice on merits in preference to the approach which scuttles a decision on merits. 10. It is the specific case of the petitioner that he was suffering from jaundice and he underwent ayurvedic treatment and, therefore, he was unable to contact his counsel to file the written statement. 11. The Courts are empowered to allow the application for condonation of delay, on sufficient cause being shown or reject such an application in exercise of its judicious discretion. However, such judicious discretion to condone the delay by adopting a liberal approach has to be exercised only in deserving cases, and not in cases where the delay is on account of lethargic attitude and negligence on the part of the applicant. It is not as if each application for condonation of delay has be allowed as a matter of right, no matter whether any sufficient cause for the delay is shown or not. Each case is to be decided on facts and circumstances. The length of delay is no matter. All that matters is the acceptability of explanation. 12. The above said view of this Court is fortified by the following decisions of this Court: (a) In Mohammed Aslam and others v. C.N.A.Gowdhaman, 2005 (2) CTC 766 , the delay was of 1251 days. In the said judgment, a Division Bench of this Court observed as under: “12. All that matters is the acceptability of explanation. 12. The above said view of this Court is fortified by the following decisions of this Court: (a) In Mohammed Aslam and others v. C.N.A.Gowdhaman, 2005 (2) CTC 766 , the delay was of 1251 days. In the said judgment, a Division Bench of this Court observed as under: “12. In the impugned order, as said earlier, the learned Judge has not considered the explanation offered by the applicant for the delay of 1251 days. Though the learned Judge was conscious of the fact that by condoning the inordinate delay, the respondents therein (appellants herein) will be put to great hardship, instead of compensating them, directed for the payment of Rs.10,000/- to the State Legal Services Authority, Chennai, admittedly, which is not a party in this proceedings. We are unable to share the above view. Having found that by condoning the inordinate delay only on the ground that the applicant should be given an opportunity and having found that the said act will cause great hardship to other side, viz., respondents therein, it is but proper to compensate them by awarding reasonable costs to them. The learned Judge has not resorted to such recourse. It is not in dispute that the Courts are here to render justice to both parties. We are unable to understand how the respondents will be compensated by payment of Rs. 10,000/- to the State Legal Services Authority, Chennai. Equally, we are conscious of the fact that the length of delay is no matter, and acceptability of the explanation is the only criterion. Sometimes the delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases, delay of a very long range can be condoned as the explanation therefor is satisfactory. In every case of delay, there may be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack the mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should not lean towards acceptance of the explanation. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should not lean towards acceptance of the explanation. We are also aware that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. Now, even the higher court of this land have interpreted that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Accordingly, in order to give one opportunity to the respondent/applicant and at the same time, to compensate the appellants/respondents, we intend to modify the order of the learned Judge dated 10.03.2005. Though it is stated that the applicant had paid a sum of Rs.10,000/- to the State Legal Services Authority, Chennai as ordered, in addition to the said amount, the applicant/respondent is directed to pay a further sum of Rs.20,000/- (Rupees twenty thousand only) to the appellants/respondents within 15 days from today, failing which the order of the learned Judge dated 10.03.2005 shall stand set aside. OSA. No. 44 of 2005 is disposed of accordingly.” (emphasis supplied) (b) In yet another decision of this Court in Pavayammal and another v. S.N.Chockalingam and others, 2009 (5) CTC 414 , a learned Single Judge of this Court held as under: “7. The word ‘sufficient cause’ under Section 5 of the Limitation Act will have to be interpreted in a purposeful and meaning way. As a matter of fact, the Court of law is not supposed to adopt a pedantic approach instead it has to take a liberal view while dealing with the Application of condonation of delay. Ordinarily a party does not stand to gain by lodging in Appeal belatedly. Refusing to condone a delay will result in meritorious matter being thrown out at the nascent stage and thereby the cause of justice being defeated. On the other hand, if a party is allowed to enter into the scene of main proceedings, then the matter can be decided on merits. Of course a Court of law providing due opportunities to the parties to prove their case. On the other hand, if a party is allowed to enter into the scene of main proceedings, then the matter can be decided on merits. Of course a Court of law providing due opportunities to the parties to prove their case. The judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing injustice and is expected to do so. This Court is of the considered view that substantial justice will have to be delivered to the parties overriding technicalities.” (emphasis supplied) (c) The proposition of law laid down in the above said two decisions was also reiterated in the subsequent decision of a learned Single Judge of this Court in P.Subramanian (dead) and others v. S.Viswasam, 2011-1-LW 53. 13. There is absolutely no dispute with regard to the fact that the present suit is one for the relief of partition and separate possession. In the affidavit filed in support of the interlocutory application for condonation of delay, the petitioner stated that only because of jaundice for which he was taking ayurvedic treatment, he could not contact his counsel and file the written statement within time. 14. In the case of N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123 , the Hon'ble Supreme Court held that rules of limitation are not meant to destroy the right of the parties and they are meant to see that parties do not resort to dilatory tactics. The Hon'ble Supreme Court further held that it must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned and that alone is not enough to turn down his plea and to shut the door against him. The Hon'ble Supreme Court further held that if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. 15. Since it is a suit for partition and as substantial rights of the parties are involved and having regard to the reasons recorded supra, this Court is of the considered opinion that the ends of justice would be served, if the petitioner is permitted to prosecute the suit on merits, however, subject to certain terms. 16. 15. Since it is a suit for partition and as substantial rights of the parties are involved and having regard to the reasons recorded supra, this Court is of the considered opinion that the ends of justice would be served, if the petitioner is permitted to prosecute the suit on merits, however, subject to certain terms. 16. For the foregoing reasons, the following order is passed: (i) the revision is allowed, setting aside the order dated 11.12.2006 passed by the learned Principal District Munsif, Puducherry in I.A.No.2847 of 2006. Consequently, I.A.No.2847 of 2006 is allowed, subject to payment of costs of Rs.1,000/- to the first respondent/plaintiff, within a period of two weeks from the date of receipt of a copy of this order. (ii) On compliance of the said direction, the Court below is directed to number the set aside application and pass orders within a period of one month, of course, after giving notice to both sides. (iii) The Court below is directed to dispose of the suit within a period of three months. No costs. Consequently, M.P.No.1 of 2007 is closed.