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2018 DIGILAW 3438 (MAD)

Leela v. V. R. Asha

2018-10-03

M.S.RAMESH

body2018
JUDGMENT : 1. The petitioner herein is the defendant in the suit filed in the year 2011 seeking for specific performance of a sale agreement dated 12.03.2008, in which, she was set ex-parte on 20.04.2012. The suit came to be decreed on 18.06.2012. Subsequently, the petitioner herein was set ex-parte in the execution proceedings also. On 11.11.2016, the petitioner had filed an application to condone of delay of 1579 days in filing the application to set aside the ex-parte decree passed in O.S.No.41 of 2011. The present civil revision petition is against the order dismissing her application seeking for condonation of delay in filing the application to set aside the ex-parte decree. 2. Heard Mr.R.Bharath Kumar, learned counsel for the petitioner and Mr.J.Hariharan, learned counsel for the respondent. 3. Mr.Bharath Kumar, the learned counsel for the petitioner submitted that the trial Court had failed to appreciate the petitioner's health condition although she had produced the medical certificate of the Government Hospital which evidences she had been suffering from spinal cord pain for the past six years. The learned counsel further submitted that the petitioner herein has a valid and arguable defence in the suit and that the plaintiff is trying to grab a valuable property for a very meager sale consideration. Therefore, in the interest of justice, the trial Court ought to have taken a lenient view and condoned the delay. The learned counsel also submitted that the petitioner herein had filed her written statement along with the application to condone the delay and in view of the same, her conduct should be taken into account and the delay requires to be condoned. The learned counsel also relied upon the judgment of this Court to substantiate that, delay in these circumstances should be condoned and a lenient view should be taken. 4. The learned counsel for the respondent countered the arguments of the petitioner's counsel and submitted that the delay was inordinate, which does not deserve any consideration for interference. According to him, the petitioner was given ample opportunities in the suit as well as in the execution proceedings and though notice was served on her, she had not chosen to file her written statement in the suit and her non appearance in the execution proceedings is fatal. According to him, there is no infirmity in the order of the trial Court. According to him, there is no infirmity in the order of the trial Court. The medical record produced also does not explain the reasons for the inordinate delay and therefore sought for dismissal of the civil revision petition. 5. I have given careful consideration to the submissions made by the respective counsels. 6. The delay in the instant case is 1579 days which can be termed as an inordinate delay. What requires to be seen in the case of this nature is as to whether the petitioner had properly explained each and every day's delay. Before venturing into the explanation adduced by the petitioner, it would be appropriate to look into the conduct of the petitioner through out the proceedings before the trial Court, Execution Courts and ascertain as to whether she had been vigilant through out the entire course of the proceedings. 7. The suit came to be filed in the year 2011 and the petitioner herein had entered her appearance through her counsel on 16.11.2011. Though ample opportunities was extended to the petitioner herein to file her written statement, she had failed to do so and ultimately, she was set ex-parte on 20.04.2012. After recording the evidence of the plaintiff, the suit came to be decreed on 18.06.2012. After about two years from the decree, an Execution Petition was filed on 12.03.2014. The petitioner herein had received notice in the Execution Petition and owing to her non prosecution, she was set ex-parte in the execution proceedings also. Thereafter, steps were taken for registration of the sale deed and during the course of such registration, an application for amendment was made by the decree holder in which notice came to be ordered to the petitioner herein. At this point of time, the petitioner herein had filed an application to condone the delay in filing the petition to set aside the ex-parte decree. 8. The trial Court had dismissed the said application on the ground that there was no proper medical evidence to substantiate the plea that the petitioner herein was continuously suffering from severe back pain and therefore, the application came to be dismissed stating that the delay was not properly explained. The trial Court had also observed the lethargic conduct of the petitioner herein through out the proceedings. The trial Court had also observed the lethargic conduct of the petitioner herein through out the proceedings. The learned counsel by relying upon Ex.P1/medical certificate dated 10.11.2016 submitted that the petitioner herein was continuously suffering from low back pain and that the medical certificate establishes that her ailment was subsisting for the past six years and she had been advised to undergo a surgery. Apparently, Ex.P1 is a discharge summary of an out-patient which evidences that the petitioner herein is suffering from low back pain for the past six years therefrom. No medical record was produced before the trial Court evidencing that the petitioner was undergoing such an ailment during these six years. Neither are there any other material evidence to establish that the magnitude of the medical ailment of the petitioner was to such an effect, so as to prevent her from contacting her counsel or for taking effective steps before the trial Court otherwise. 9. It is a established proposition of law that in an application filed under Section 5 of the Limitation Act, the petitioner requires to prove, beyond reasonable doubts, that she had sufficient cause for not prosecuting the case before the Courts below and that each and every day's delay requires to be explained. 10. In the instant case, a mere averment that the petitioner was suffering from severe back pain for the past 1579 days would not be a proper and sufficient explanation for condoning the delay, particularly, when the delay is inordinate. The issue as to whether the petitioner had a good and arguable case in the main suit would be irrelevant in the case of a party who sleeps over her rights on more than one occasion. The petitioner herein was represented by a counsel in the suit and her failure to file written statement inspite of ample opportunities given has resulted in setting her ex-parte. Further, the petitioner having received the notice in the execution proceedings, has chosen to be unresponsive. As such, the trial Court had properly exercised its discretion in refusing to condone the delay and I do not find any infirmity in such an order that warrants interference. 11. Further, the petitioner having received the notice in the execution proceedings, has chosen to be unresponsive. As such, the trial Court had properly exercised its discretion in refusing to condone the delay and I do not find any infirmity in such an order that warrants interference. 11. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court in 2001 (6) SCC 176 [M.K.Prasad V. P.Arumugam], 2015 (1) CTC 811 [Ajay Kumar Gulecha V. J.Vijayakumar and Uttamchand Gulecha] and an order of this Court dated 14.11.2017 in CRP.(NPD) No.1619 of 2017 [M.Chandra V. N.Boopathy] and submitted that the rights of the parties should be decided on merits and that in the interest of justice, an opportunity should be given to the petitioner for an application seeking for condonation of delay and further, submitted that the seriousness of the case should be taken into account while exercising the discretion under Section 5 of the Limitation Act. 12. It is no doubt true that the discretion under Section 5 of the Limitation Act, 1963 has to be exercised liberally in order to advance substantial justice. There is no quarrel on such a proposition. But it is also well established principle that such an equity is subject to reasonable restrictions. It is no doubt true that an unintentional lapse on the part of the litigant should not normally cause the doors of the Court to be permanently shut to him. But more importantly such an equity would be extended only to the aid of a vigilant litigant and not the slumbering. The legal maxim “Vigilantibus et non dormientibus jura subveniunt” has come up for interpretation on various occasions before the Hon'ble Apex Court and the unanimous decision taken therein is that the law assists those who are vigilant and not those who sleep over their rights. The Court of law will never tolerate an indolent litigant since delay defeats equity. As such, the judgments relied upon by the learned counsel for the petitioner may not be of any help since the powers vested with the trial Court to invoke Section 5 of the Limitation Act is discretionary in nature and that there cannot be any positive and binding precedent compelling the trial Court to condone such an inordinate delay. 13. In the judgment of the Hon'ble Apex Court in the case of Hameed Joharan (dead) and others Vs. 13. In the judgment of the Hon'ble Apex Court in the case of Hameed Joharan (dead) and others Vs. Abdul Saleem (dead) rep. by Lrs. and others reported in 2001 (7) SCC 573 , it was observed that it cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times. In the judgment of the Hon'ble Apex Court in Chandigarh Administration and another Vs. Jasmine Kaur and others reported in 2014 (10) SCC 521 , the Hon'ble Apex Court held that equity aids only the vigilant and not the one who sleeps over their right. 14. The present case in hand is a classic example where the petitioner herein had insensibly slept over her rights for almost four years and three months. There is no explanation as to why and how she was unable to get in touch with her counsel or file an application inspite of her alleged medical ailment. Even otherwise, the certificate produced in the year 2016 with a causal reference that she had been suffering from back pain for the past six years, without any medical investigation, may not be considered as a proper document to establish her inability to file the application in time. As such, I do not find any infirmity in the order of the trial Court rejecting the petitioner's request to condone the delay in filing the application to set aside the ex-parte decree. 15. In view of the foregoing reasons, I am constraint to hold that there are no merits in the present Civil Revision Petition. Accordingly, the same stands dismissed. Consequently, connected Miscellaneous Petition is also closed. No costs.