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2020 DIGILAW 2354 (MAD)

Kotteeswari v. Devaki Amma

2020-12-11

R.SUBRAMANIAN

body2020
JUDGMENT : (Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order in I.A.No.219 of 2013 in I.A.No.303 of 2011 in O.S.No.202 of 2006, on the file of the Additional Sub Judge of Chengalpattu dated 11.07.2014.) 1. This matter is taken up for hearing through Video-Conferencing. This Civil Revision is against an order dismissing an application filed by the petitioners seeking condonation of delay of 162 days in filing an application to restore IA No.303 of 2011 which was dismissed for noncompliance with the condition on 27.11.2012. 2. A suit for partition was laid by the respondent herein seeking division and separate possession of her half share in the suit properties. The said suit came to be decreed exparte on 03.12.2010. An application in IA No.303 of 2011 was filed, within time, to have the exparte decree set aside. The said IA No.303 of 2011 was allowed on condition that the petitioners should pay costs of Rs.500/- on or before 27.11.2012, since the cost was not paid, the petition was dismissed on 27.11.2012. Thereafter, after delay of 162 days, the petitioners/defendants came up with the instant application in IA No.219 of 2013 seeking to condone the delay in seeking restoration of IA No.303 of 2011. This application was dismissed by the Trial Court on the ground that such an application is not maintainable, relying upon the judgment of this Court in Kandasami Gounder v. Muthusami Gounder and others, reported in 2005 (3) MLJ 333. It is against the said order the petitioners have come up on revision. 3. I have heard Mr.V.Lakshminarayanan, learned counsel appearing for the petitioners and Mr.J.R.K.Bhavanantham, learned counsel appearing for the sole respondent. 4. Mr.V.Lakshminarayanan, learned counsel appearing for the petitioners would submit that the judgment in 2005 (3) MLJ 333 was over ruled by a Division Bench of this Court in Gowri Ammal v. Murugan and Others, reported in 2006 (2) MLJ 729 . In Gowri Ammal v. Murugan, the Division Bench of this Court had pointed out that in the light of the principle laid down by the Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (UOI), reported in 2005 (6) SCC 344 , the judgment of the Single Judge reported in 2005 (3) MLJ 333 is no longer good law. Therefore, the learned Subordinate Judge was in error in following a Judgment which was over ruled. 5. Contending contra, Mr. J.R.K.Bhavanantham, learned counsel appearing for the respondent would submit that the petitioners have wantonly allowed the matter to deviate and have come up this application only to prevent execution of the decree. He would also point out that pursuant to the said exparte decree a final decree has also been passed. The learned counsel would also submit that an application for restoration of an application which was dismissed for not complying with the condition is not maintainable and the petitioners should have sought for extension of time under Section 148 of the Code of Civil Procedure. I have considered the rival submissions. 6. It is unfortunate that the learned Subordinate Judge should have relied upon a judgment which has been held to be not good law by a Division Bench of this Court. It is settled principle of law that the petition to extend the time granted can be filed even after the expiry of the time originally fixed. Therefore, the order of the learned Subordinate Judge rejecting the application on the ground that it was filed after the time granted had expired is erroneous. The learned Subordinate Judge has also concluded that the petitioners have not explained the delay properly. Considering the length of the delay and the fact that the suit is one for partition, the Trial Court, in my considered opinion, should not have adopted a strict approach. 7. The Hon’ble Supreme Court and this Court have been repeatedly pointing out that Courts must be liberal in condoning the delay. Usefull reference could be made to the judgment of the Hon’ble Supreme Court in University of Delhi vs. Union of India, reported in 2019 SCC online 1634, wherein the Hon’ble Supreme Court had pointed out that a liberal approach is required in matters of delay, when it is shown that the delay is not malafide or that the petitioners, who seek condonation of delay have not derived any benefit because of the delay. 8. The second contention of Mr.J.R.K.Bhavanantham, learned counsel appearing for the respondent is that an application for restoration is ill conceived. 8. The second contention of Mr.J.R.K.Bhavanantham, learned counsel appearing for the respondent is that an application for restoration is ill conceived. No doubt the petitioners could have filed a single application for extending the time under Section 148 of the Code of Civil Procedure and once the time is extended, the consequential order dismissing the application for non-compliance would have automatically disappeared, following the principle if the basis goes the consequence disappears. I am therefore of the considered opinion that technical defences like the one raised by the learned counsel for the respondent should not be allowed to stand in the way of substantial Justice. 9. I am therefore of the considered opinion that the Revision needs to be allowed and the order of the Trial Court should be set aside. Accordingly, the Civil Revision Petition is allowed. The application in IA No.219 of 2013 is treated as an application for extension of time in paying the cost of Rs.500/- as per the conditional order passed in IA No.303 of 2011 and the same will stand allowed. However, the cost of Rs.500/- is enhanced to Rs.5,000/- payable on or before 13.01.2021 to the counsel for the respondent appearing in this Court. No costs. Consequently, the connected miscellaneous petition is closed. 10. On such payment and production of the receipt the Additional Sub Court, Chengalpattu, is directed to restore IA No.303 of 2011 allow the same and proceed with the suit in accordance with law. Considering the fact that the suit is of the year 2006, the Additional Sub Court, Chengalpattu is directed to dispose of the suit within a period of six months from the date of resumption of physical hearings in the Courts at Chengalpattu.