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2023 DIGILAW 3396 (MAD)

Chitravel v. Jothimani

2023-12-20

P.B.BALAJI

body2023
ORDER : (P.B. Balaji, J.) (Prayer: Civil Revision Petition filed under section 115 of the Civil Procedure Code, against the Fair order and Decreetal Order made in I.A.No.33 of 2017 in A.S.No..... of 2019 dated 25.03.2019 on the file of the Subordinate Court, Srivilliputhur.) The plaintiff, who suffered a decree of dismissal of the suit for partition in O.S.No.390 of 2008, filed an appeal against the said judgment and decree, dated 10.01.2012 along with an application to condone the delay of 1757 days in preferring the said appeal. The first appellate Court allowed the said application, as against which the respondents/ defendants are before this Court, challenging the said order of the appellate Court, condoning the delay of 1757 days. 2. The grounds raised by the revision petitioners are that the delay was inordinate and not supported by bonafide cause; the respondent has made an allegation against his counsel only for the purpose of filing the application for condonation of delay; the delay has not been properly explained and the first appellate Court has erroneously condoned the delay for irrelevant and extraneous circumstances without assessing the requirements to be shown by an applicant, who seeks condonation of delay, invoking Section 5 of the Limitation Act. 3. I have heard Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioners and Mr.V.Meenakshi Sundaram, learned counsel appearing for the respondent. 4. The learned counsel for the revision petitioners would submit that the first appellate Court has grossly erred in condoning the huge and inordinate delay, especially, having found that the reasonings assigned in the affidavit filed in support of the Section 5 application being not established. He would further contend that the first appellate Court ought not have gone into the merits of the suit/appeal and based his decision to condone delay on the same, and primarily, ought to have satisfied itself with regard to the mandate of Section 5 of the Limitation Act. He would place reliance on the following decisions: I) In Union Bank of India vs. K.R.Jewellers and others reported in 2008(5) CTC 651, where, the Division Bench of this Court held that the allegations of negligence against counsel is not a ground to condone delay because the party has an equal responsibility to follow up the matter. He would place reliance on the following decisions: I) In Union Bank of India vs. K.R.Jewellers and others reported in 2008(5) CTC 651, where, the Division Bench of this Court held that the allegations of negligence against counsel is not a ground to condone delay because the party has an equal responsibility to follow up the matter. ii) In F.Ramesh vs. M/s.Ramalingam Investments, Salem represented by its Managing Partner K.Sridharan reported in 2013(5) MLJ 565 , where, this Court held that the applicant seeking condonation of delay ought to have diligently prosecuted the case by contacting his counsel and even though a duty is cast upon the Advocate to represent his client, the contention of the revision petitioner that he was waiting for a call from his Advocate and since there was no response, he did not contact his Advocate and in the above said circumstances, the ex-parte decree came to be passed, cannot be accepted. iii) In M.Duraisamy vs. Vasantha and others reported in 2023(1) CTC 444 , where this Court held that the Court cannot condone delay in a routine manner in the absence of any genuine and acceptable reason, as it would result in causing prejudice to other party. iv) In V.Marimuthu vs. V.Kalaiselvi and others reported in 2023(1) T.N.C.J., 953 (Mad), where this Court in a partition suit, held that the delay of 889 days could not be condoned in a mechanical manner and proceeded to dismiss the condone delay petition. v) In S.Rajamanickam vs. Parvathiammal (died) and others reported in 2023(1) T.N.C.J., 986 (Mad), where this Court rejected the reason stated by the appellant seeking condonation of delay in filing the appeal on the ground that he could not contact his counsel on account of his illness and held that the delay of 356 days was unexplained. 5. The learned counsel for the revision petitioners would, therefore, pray for allowing the Civil Revision Petition. 6. Per contra, Mr.V.Meenakshi Sundaram, learned counsel for the respondent would submit that being a suit for partition and the suit itself having been dismissed by the trial Court, no right accrued to the revision petitioners/defendants and therefore, no prejudice would be caused to the revision petitioners if the appeal is heard and decided on merits. 6. Per contra, Mr.V.Meenakshi Sundaram, learned counsel for the respondent would submit that being a suit for partition and the suit itself having been dismissed by the trial Court, no right accrued to the revision petitioners/defendants and therefore, no prejudice would be caused to the revision petitioners if the appeal is heard and decided on merits. He would further submit that there being no stay or interim order in the present Civil Revision Petition, the delay having been condoned by the first appellate Court, the appeal has also been subsequently numbered and now stands posted for arguments in February 2024. He would therefore state that in view of the subsequent developments, the appeal itself can be argued and absolutely no prejudice would be caused to the revision petitioners and he would also state that even directions can be given to the first appellate Court to dispose of the appeal within a period of two or three months. 7. I have heard the learned counsel on either side and also having perused the records, including the affidavit and petition in the Section 5 application, counter filed by the revision petitioners to the same and the order impugned in the revision condoning the delay of 1757 days. 8. The learned counsel for the respondent would further state that he has no quarrel with the propositions laid down by the Hon'ble Supreme Court and High Court with regard to condonation of delay and he would only invite my attention to the order impugned in the revision and state that by allowing the condone delay application, the first appellate Court has fully endeavoured to do substantial justice and therefore, the order need not be interfered with. 9. The only reason cited by the respondent is that he was not in cordial terms with the trial Court Advocate, who was demanding exorbitant fees for him and since the money was not paid, on purpose, his advocate did not inform him about the decree. 9. The only reason cited by the respondent is that he was not in cordial terms with the trial Court Advocate, who was demanding exorbitant fees for him and since the money was not paid, on purpose, his advocate did not inform him about the decree. It is his further case that, recently the revision petitioners claimed that the suit filed by the respondent had been dismissed 5 years back and they were merrily propagating the same in the locality and immediately, the respondent contacted his lawyer and came to known that the suit had been dismissed as early as on 10.01.2012 and that, only on 12.01.2017, the papers were handed over to the respondent and thereafter, without any further delay, the present appeal has been filed along with an application for condonation of delay of 1757 days. 10. The said application was strongly resisted by the revision petitioners stating that the reasons assigned by the respondent are totally false and also unacceptable. The allegations that the revision petitioners informed the respondent about the dismissal of the decree and that was how the respondent came to know about the dismissal of the suit, was denied. It is also contended that the respondent has not even furnished the date on which he came to know about the ex-parte decree and as to when he contacted the counsel, excepting the bald statement that he received the papers on 12.01.2017. 11. The learned first appellate Court after referring to various decisions that have been relied on by the counsel for the revision petitioners and the respondent found that the respondent had not deliberately delayed filing of the appeal and that there was no lack of bonafides on his part and further held that the revision petitioners have not established as to how they would be prejudiced, if the delay was condoned and proceeded to impose a cost of Rs.10,000/- on the respondent and subject to the payment of cost of Rs.10,000/-, the first appellate Court allowed the Section 5 application. 12. No doubt, the Hon'ble Supreme Court as well as this Court have repeatedly held that the length of delay is immaterial, however, the applicant, who seeks condonation of delay, has to show sufficient or just cause. Such proof of sufficient or just cause is a pre-condition for entertaining the application for condonation of delay. 12. No doubt, the Hon'ble Supreme Court as well as this Court have repeatedly held that the length of delay is immaterial, however, the applicant, who seeks condonation of delay, has to show sufficient or just cause. Such proof of sufficient or just cause is a pre-condition for entertaining the application for condonation of delay. The discretion to allow an application for condonation of delay is different from the satisfaction of the requirements of Section 5 of the Limitation Act. The discretion cannot be exercised by a Court when the applicant seeking condonation of delay is unable to satisfy the Court that he had just or sufficient cause for not approaching the Court earlier and that the delay was occasioned beyond his control, there was no gross negligence or deliberate inaction or any lack of bonafides. If the applicant is able to show and satisfy the Court, the absence of the above militating factors, then he is entitled to discretion being exercised in his favour. 13. Coming to the reason cited by the respondent in his application for condonation of delay of close to 5 years, they are that the trial Court Advocate did not inform him about the passing of the decree. Clearly, the respondent has played a blame game, accusing his trial Court Advocate of not informing him about the proceedings, especially, the factum of the suit being dismissed, after trial. As already referred herein above, this Court has consistently held that the negligence of the Advocate cannot be held to be a sufficient or just cause to entertain a condonation of delay application, as equally a duty is cast on the litigant, who is supposed to diligently follow up his case or her case with the lawyer. One another alarming factor is that such affidavits accusing lawyers is sadly gaining popularity. It is not a healthy trend. Behind the back of the lawyer who conducted the case, allegations are made in the affidavit, by engaging another counsel and citing the said reason that the Advocate or the Advocate's clerk did not inform the party, applications are being routinely filed before the court, seeking condonation of delay. It is not a healthy trend. Behind the back of the lawyer who conducted the case, allegations are made in the affidavit, by engaging another counsel and citing the said reason that the Advocate or the Advocate's clerk did not inform the party, applications are being routinely filed before the court, seeking condonation of delay. Only in order to assess the bonafides or truth in the averments and allegations made in this regard, the Courts are constrained put riders on such applications by insisting of production of any complaint made by the litigant against the Advocate before the Bar Council. Practically, it is understandable that in all cases it may not be possible for the litigant to approach the Bar Council and file complaint against the Advocate for various reasons. Even lawyers, who are engaged subsequently, would be embarrassed to take such action. However, the applicant casually blames the counsel who conducted the trial, especially behind the Counsel's back and gets a favourable order from the Court, condoning huge and inordinate delay. It is one thing to state that no prejudice would be caused to the petitioners if the delay is condoned and the appeal is heard on merits. When such a reason is thrust before the Court, it virtually goes unchallenged as the opposite party is not privy to the advocateclient relationship of the applicant. However, when the applicant is unable to show any just or sufficient cause and the only reason cited for the delay of approximately 5 years is blaming his advocate, then the Court should not entertain such an application. 14. Coming to the next aspect of date of coming to know of the exparte decree, the case of the respondent is that about a week prior to the filing of his affidavit for condonation of delay, the revision petitioner made a propaganda in the locality stating that the suit has been dismissed 5 years back. However, in the affidavit, the respondent has stated that he received the papers from his advocate on 12.01.2017. The affidavit is dated 20.02.2017. Therefore, the averments that the respondent came to know about the ex-parte decree in or about mid of February 2017 cannot be true and in fact totally false and baseless, as even according to him, he has received the papers from his counsel as early as on 12.01.2017. The affidavit is dated 20.02.2017. Therefore, the averments that the respondent came to know about the ex-parte decree in or about mid of February 2017 cannot be true and in fact totally false and baseless, as even according to him, he has received the papers from his counsel as early as on 12.01.2017. More over, the said factum of the revision petitioners informing the respondent about the dismissal of the suit has also been denied by the revision petitioners in their counter. 15. Strangely and curiously, I noticed that in the said counter affidavit, the revision petitioners, while denying the said averments that they informed the respondent about the dismissal of the suit, apart from denying the said averments, the revision petitioners have called upon the respondent to prove the said averments/allegations. 16. The denial of a fact or averment or even an allegation contained in the affidavit and plaint is an art by itself. A denial can be implied or specific and insofar as certain averments of denial, they can be specific, with a rider that it would be subject to proof at the hands of the party making the said averments/allegations. However, in cases of this nature, where the allegations are directly involving the revision petitioners, the revision petitioners are to either emphatically deny the averments/allegations or admit the same. Having denied the said averments or allegations, it was wholly unnecessary for the revision petitioners to call upon the respondent to prove the same. Something which is within the knowledge of the revision petitioners has to be expressly and emphatically, either admitted or denied. For instance, assuming that the allegations made in the affidavit as discussed herein above has been denied and the respondent has been called upon to prove the same and the respondent also take efforts to prove that the revision petitioners had in fact gone about the informing the people in the locality that the suit for the respondent had been dismissed, by examining some witness or production of some documentary evidence; then it will result in a peculiar situation where the allegations which are purely within the knowledge of the revision petitioners and also denial would have to be conseded by the revision petitioners. Thus, this trend of denial and putting the other party to strict proof has to be employed carefully, according to the case on hand and depending on the specific averments and allegations made in the affidavit or in the pleadings. However, merely because the revision petitioners have put the respondent to strict proof of the averments that it was the revision petitioners who informed the respondent about the dismissal of the suit, I see it no more than a defective drafting by the counsel and the same cannot prejudice the interests of the revision petitioners. 17. I have already found that the respondent has stated that he received the papers from his counsel on 12.01.2017 itself and subsequently, has stated that only about a week back he came to know about the dismissal of the suit from the revision petitioners is totally contradictory and cannot be true and therefore do not wish to make much of the improper denial made by the revision petitioners in the counter statement. 18. Though the learned counsel for the respondent would submit that it is only a suit for partition and the suit having been dismissed, no right can be said to be accrued to the revision petitioners and therefore, no prejudice would be caused to the revision petitioner, if the delay is condoned and that the appeal is already ripe for arguments, I am unable to countenance the said contentions advanced by the respondent counsel for the simple reason that, the discretion of the Court to condone the delay can be exercised judiciously and only in cases where the Applicant shows just and sufficient cause and the reasons appear to be probable and not in a case of this nature where absolutely no such sufficient cause has been shown by the respondent, especially when the respondent has chosen to blame his advocate and attempted to have the delay condoned on the strength of such allegations. This argument may find favour with the court if the respondent's reasons were bonafide and the delay was not on account of any willful negligence or deliberate inaction. 19. For the above reasons, I am constrained to interfere with the order of the first appellate Court, condoning the delay of 1757 days. Accordingly, this Civil Revision Petition is allowed. In view of the Civil Revision Petition being allowed, A.S.No.21 of 2019 has to be consequently, dismissed. No costs.