IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.07.2009
CORAM:
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.(N.P.D) No.2234 of 2008
and
M.P.No.1 of 2008
S.A.Boopalan .. Petitioner
-vs-
Sapphire Benefit Fund Ltd
rep by its Managing Director A.Shanmugam .. Respondent
This civil revision petition is filed under Section 115 of CPC against the order and decretal order dated 12.3.2008 made in I.A.No.780 of 2007 in O.S.No.23 of 2006 on the file of Principal District Judge, Erode.
For Petitioner : : Mr. V.S.Kesavan
For respondent : : Mr.R.Mubarak Basha
O R D E R
The revision petitioner/defendant has filed this present civil revision petition as against the order dated 12.3.2008 made in I.A.No.780 of 2007 in O.S.No.23 of 2006 passed by the learned Principal District Judge,Erode in dismissing the application filed by the revision petitioner/defendant under Section 5 of the Limitation Act praying to condone the delay of 8 days in filing the petition under Order 9 Rule 13 of CPC.
2. The trial Court, while passing orders in I.A.No.780 of 2007 has among other things observed that ‘the suit has been posted for trial on 6.9.2006 and further that P.W.1 has been examined in chief and the matter has been adjourned for cross examination of P.W.1 and that the revision petitioner/defendant has not examined himself to prove the fact that he has been severally attacked by viral fever and he has been advised to take bed rest for one month by the Doctor and more over he has not filed any medical certificate or prescription in regard to the purchase of medicines for the said illness and he could not contact his counsel also and that later the revision petitioner/defendant’s counsel has reported ‘no instructions’ and that the decree has been passed on 6.9.2006 and in fact there is no proof that the revision petitioner has been suffering from Chickenkunya during the relevant period and also that the revision petitioner has not contacted his counsel and all the more learned counsel has reported’ no instructions’ and apart from these facts, an application has been filed on 16.10.2006 and the same has been returned for the reason that notice to the other side has to be given and 15 days time for compliance has been granted but the notice has been given by the petitioner only on 12.9.2007, after an inordinate delay of around 11 months and this proves the intention of the revision petitioner to delay the further proceedings and that it is settled that there should be sufficient cause to condone the delay under Section 5 of the Limitation Act has to be given and since the revision petitioner has not approached the Court with a clean hands and that an application for condonation of delay has been dismissed with costs.
3. The learned counsel for the revision petitioner/defendant contends that the trial Court has not accepted the reasons assigned by the revision petitioner/defendant in I.A.No.780 of 2007 and as a matter of fact the revision petitioner has been prevented from filing the application in time because of the bonafide reason that he has been suffering from severe sickness and there has been no malafide intention on the part of the revision petitioner/defendant in filing the application to set aside the exparte decree in time and the trial Court ought to have given an opportunity to the revision petitioner to establish his case etc and therefore prays for allowing the revision petition in the interest of justice.
4. Contending contra, the learned counsel for the respondent/plaintiff submits that in fact the revision petitioner has given notice in I.A.No.780 of 2007 only after a long gap of nearly 11 months though the revision petitioner has filed an application on 16.10.2006 and the same has since been returned and hence the delay of 11 months in giving notice to the other side itself will evidently show that the object of the revision petitioner is only to drag on the proceedings endlessly and in fact the revision petitioner has admitted in his written statement that’ for the purpose of investing in the said firm, the defendant borrowed a sum of Rs.7,00,000/- by giving blank cheques, promissory notes etc from the plaintiff and the said amount has been invested in the said firm etc and since the trial Court has considered the relevant aspect of the delay and has come to the right conclusion in dismissing the said application I.A.No.780 of 2007 and same need not be disturbed by this Court sitting in revision.
5. This Court has paid its anxious consideration to the arguments advanced by both parties and noticed the same.
6. Admittedly, the respondent/plaintiff has filed a suit in O.S.No.23 of 2006 against the revision petitioner/defendant for recovery of principal amount of Rs.7,00,000/- together with interest of Rs.23,382/- (for the period from1.1.2006 to 5.3.2006) at the rate of 18% per annum totalling in all for a sum of Rs.7,23,382/- with costs.
7. Though, the trial Court has not accepted the reason submitted by the revision petitioner/defendant that he has been suffering from viral fever or chickenkunya etc, this Court opines that a substantial justice will have to be delivered to the party over riding technicalities and all the more, a Court of Law need not look into the length of the delay which is immaterial and in fact a party by causing a delay runs a serious risk and generally a party does not stand to benefit by projecting an application belatedly and therefore to provide an opportunity to the revision petitioner/defendant and by resorting to a rational common sense pragmatic approach, this Court allows the civil revision petition(so as to enable the cause to be decided on merits after hearing the parties) of course with a condition that the revision petitioner/defendant shall pay a sum of Rs.1,500/-(Rupees One thousand five hundred only) towards cost to the learned counsel for the respondent/plaintiff directly within a week from today, failing which the revision petition shall stand automatically dismissed without further reference.
8. In the result, the civil revision petition is allowed and the order passed by the trial Court in I.A.No.23 of 2006 is set aside. The revision petitioner/defendant is directed to pay a sum of Rs.1,500/-(Rupees one thousand five hundred only) towards cost to the learned counsel for the respondent/plaintiff directly within a week from today, failing which this civil revision petition shall stand automatically dismissed. Consequently,connected M.P.No.1 of 2008 is closed.
sg
To
The Principal District Judge,
Erode