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2019 DIGILAW 178 (MAD)

Abdul Nasar v. S. Rani

2019-01-18

P.D.AUDIKESAVALU

body2019
ORDER : 1. These Civil Revision Petitions arises out of the separate orders dated 21.01.2014 in I.A. Nos. 816 and 817 of 2012 in O.S. No. 141 of 2002 passed by the Sub-Court, Pudukkottai. The parties are hereinafter referred to as per their description in the suit for the sake of convenience. 2. The Plaintiff had instituted the suit in O.S. No. 141 of 2002 in the Sub-Court, Pudukkottai for specific performance of the agreement dated 17.11.1998 entered into between the Defendant and the Plaintiff. The Defendant had filed Written Statement in that suit. However, there was no representation for the Plaintiff on 31.01.2005, the said suit was dismissed for default. The Plaintiff had presented an application to restore the said suit to the file of the Sub-Court, Pudukkottai. The said application was returned by the Registry on 18.03.2005 and the Advocate's clerk of the Plaintiff who had collected the returned papers had not re-presented the same within the stipulated time. The returned papers were re-presented on 18.08.2008 along with the Petition to condone the delay of 1472 days in re-presenting the same, which was supported by an affidavit of Advocate's clerk of the Plaintiff stating that the returned papers had been mingled with disposed of cases and caused the delay. The papers were returned by the Registry on 25.03.2010 for the second time and were re-presented on 21.05.2012 along with the Petition to condone the delay of 681 days in re-presenting the same, supported by an affidavit of the Plaintiff stating that there was a change in address and due to the same, her Advocate could not contact her for instructions for re-presenting the returned papers. The Defendant opposed the said contention by filing Counter Affidavit. 3. The lower Court by separate orders dated 21.01.2014 was of the view, though the delay in re-presentation had not been satisfactorily explained, the Defendant could be awarded costs of Rs.1,000/- and Rs.500/- in I.A. Nos. 817 and 816 of 2012 respectively for condoning that delay in re-presentation, taking into account the fact that the application for restoration had been filed in time. 4. Aggrieved by the aforesaid separate orders dated 21.01.2014, in I.A. Nos. 816 and 817 of 2012 in O.S. No. 141 of 2002, the Defendant has preferred these Civil Revision Petitions. 5. 817 and 816 of 2012 respectively for condoning that delay in re-presentation, taking into account the fact that the application for restoration had been filed in time. 4. Aggrieved by the aforesaid separate orders dated 21.01.2014, in I.A. Nos. 816 and 817 of 2012 in O.S. No. 141 of 2002, the Defendant has preferred these Civil Revision Petitions. 5. Learned Counsel for the Defendant placing reliance on the decisions of the Hon'ble Supreme Court of India in N. Balakrishnan -vs- M. Krishnamurthy [ (1998) 7 SCC 123 ], State of M.P. -vs- Pradeep Kumar [ (2000) 7 SCC 372 ], Maniben Devraj Shah -vs- Municipal Corporation of Brihan Mumbai [ (2012) 5 SCC 157 ], B. Madhuri Goud -vs- B. Damodar Reddy [(2012) 12 SCC 693], Esha Battacharjee -vs- Managing Committee of Raghunathpur Nafar Academy [ (2013) 12 SCC 649 ], and H. Dohil Constructions Co. (P) Ltd. -vs- Nahar Exports Ltd. [2014 SAR (Civil) 1128], contented that the long delay in re-presentation could not have been excused by the lower Court especially when it had recorded a finding that the same had not been satisfactorily explained. It is further contended that there was no reasons for the Plaintiff to file two applications and the entire period of delay ought to have been explained in a single application itself. On the contrary, Learned Counsel for the Plaintiff relying on the decision of the Division Bench of this Court in Y. Cusbar -vs- K. Subbarayan [1993 T.L.N.J. 375], contended that unlike delay in filing, a lenient view could be taken to delay in re-presentation and the explanation of the Plaintiff in this regard for the delay cannot be rejected. 6. Heard Mr. N. Balakrishnan, Learned Counsel appearing for the Defendant and Mr. K.Balasundharam, Learned Counsel appearing for the Plaintiff and perused the materials placed on record, apart from the pleadings of the parties. 7. Having regard to the rival submissions, the legal position is unassailable that be it delay in 'filing' or 're-presentation', it is incumbent upon the Applicant to explain the cause of the delay to the satisfaction of the Court whatever be its length and though it may not be necessary to explain each day of delay, there should not be any lack of bonafides on the part of the Applicant. In that backdrop, it requires to be noticed that when the Defendant had stoutly opposed the contentions of the Plaintiff, it was necessary for the Plaintiff to lead evidence in proof of his claim explaining the delay. At the same time, when the Defendant claims prejudice resulting out of such delay, it was also necessary that the same is established. Having due regard to the fact that the present case is one relating to specific performance of contract for sale of property affecting valuable rights of both parties and in order to balance equities between the parties and render substantive justice in the matter, it would be necessary for both parties to adduce evidence in support of their respective contentions. 8. In that view of the matter, the impugned separate orders dated 21.01.2014 in I.A. Nos. 816 and 817 of 2012 in O.S. No. 141 of 2002 passed by the Sub-Court, Pudukkottai are set aside and both applications are remitted to the lower Court for fresh disposal in accordance with law so as to enable both parties to lead evidence in respect of their respective contentions including the cross-examination of the witnesses, if necessary. The lower Court shall determine the matter afresh, uninhibited and uninfluenced by the earlier orders passed in the matter, on merits in accordance with law, on or before 31.03.2019. 9. The Civil Revision Petitions are allowed on the aforesaid terms and the parties shall bear the respective costs.