IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:06.03.2009 Coram The Honourable Mr.Justice G.RAJASURIA C.R.P.PD.No.3366 of 2007 and M.P.No.2 of 2007 1. Ponnammal 2. Kanniyan ... Petitioners vs. 1. Gopal Gounder 2. Arjuna Gounder 3. Akilandammal ... Respondents Civil revision petition filed against the fair and decreetal order dated 13.11.2006 passed by the learned Principal Additional Subordinate Judge, Tiruvannamalai, Tiruvannamalai District in C.M.A.No.4 of 2006 reversing the order dated 10.10.2005 passed by the learned District Munsif, Chengam made in I.A.No.110 of 2005 in O.S.No.336 of 1996. For Petitioner : No appearance For Respondent : No appearance ORDER
Animadverting upon the order dated dated 13.11.2006 passed by the learned Principal Additional Subordinate Judge, Tiruvannamalai, Tiruvannamalai District in C.M.A.No.4 of 2006 reversing the order dated 10.10.2005 passed by the learned District Munsif, Chengam made in I.A.No.110 of 2005 in O.S.No.336 of 1996, the defendants 2 and 3 has preferred this civil revision petition.
2. An epitome and summation of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision would run thus:
The respondents 1 to 3/plaintiffs 2 to 4 along with the deceased first plaintiff filed the suit seeking the following relief:
– declaring the title of the plaintiff’s to the suit properties and granting a permanent injunction against the defendants, their men agents and servants from in any manner interfering with the plaintiff’s possession and enjoyment of the suit properties.
The defendants filed the written statement. It appears that twice the suit was dismissed and restored. The lower court dismissed the suit for the third time for default. Whereupon I.A.No.110 of 2005 was filed by the plaintiffs under Order 9 Rule 9 of the Code of Civil Procedure seeking restoration of the suit. However, the trial court dismissed it. Animadverting upon such dismissal, the plaintiffs have filed C.M.A.No.4 of 2006 before the learned Additional Principal Subordinate Judge, Tiruvannamalai, which court by setting aside the order of the lower Court, allowed the I.A subject to payment of cost. Being disconcerted and aggrieved by the order of the lower Court, this revision petition is focussed on various grounds inter alia thus:
The first Appellate Court was wrong in upsetting the order of the lower Court, which took the view considering the laches on the part of the plaintiffs in prosecuting the case. The original suit was of the year 1988 and as such, the first appellate Court without considering the lukewarm approach and laches on the part of the plaintiffs, simply allowed the appeal.
3. Despite printing the names of the persons concerned, none appeared.
4. A plain poring over and perusal of the typed set of papers including the order of the lower Court would demonstrate and display, exemplify and convey the facts that the lower Court took a strict and illiberal view because the plaintiffs allowed thrice the suit to be dismissed for default. However, the first appellate Court took a lenient and literal view that one more opportunity should be given so as to enable the plaintiffs to prosecute the matter further. The suit itself is for declaration of title and for permanent injunction relating to immovable property described in the schedule to the plaint. No doubt, the maxims interest reipublicae ut sit finis litium It concerns the state that there be an end of law suits. It is for the general welfare that a period be put to litigation and vigilantibus et non dormientibus jura subveniunt – The laws aid those who are vigilant, not those who sleep upon their rights are very much applicable to the Indian system also.
5. A litigant should be diligent in prosecuting the case before the Court. However, in this case, the affidavit of the third plaintiff accompanying the I.A bespoke that the deceased first plaintiff was responsible for conducting the case on behalf of other plaintiffs and that after his death, there was no communication from their Advocate. According to P3, he was suffering from typhoid from 10.11.2002 onwards and that he could not contact the Advocate.
6. The first appellate court even though not in very many words elaborated in its order the reasons, nonetheless felt that one more opportunity should be given to the plaintiffs to prosecute the matter on payment of comparatively a heavy cost of Rs.3,000/-.
7. At this juncture, my mind is reminiscent and redolent of the Hon’ble Apex Court’s decision reported in 2009(2) SCALE 108 R.B.RAMLINGAM VS. R.B.BHUVANESWARI, which is squarely applicable to the facts of this case. An excerpt from it would run thus:-
“3. . . . . . . . Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of “sufficient cause” is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of Limitation has left the concept of “sufficient cause” delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient case. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such.”
As such, the Hon’ble Apex Court laid down the law to the effect that there cannot be any hard and fast rule for condoning the delay as well and it differs from case to case. Taking a cue from the said decision, the same formula can be applied in dealing with the application under Order IX Rule 9 of the Code of Civil Procedure also. Inasmuch as the lis Since the suit is a title suit and the first Appellate Court exercised its discretionary power without committing any serious error of law in allowing the CMA on heavy cost, I am of the considered opinion that the revisional jurisdiction of this Court is not attracted.
8. Accordingly, this civil revision petition is dismissed confirming the order passed by the first appellate Court. However, I make it clear that in view of the long pendency of the suit, the lower court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order and both sides shall co-operate with the Court for the speedy disposal. No costs. Consequently, the connected miscellaneous petition is closed.
vj2
To
1. The Principal Additional Subordinate Judge,
Tiruvannamalai, Tiruvannamalai District
2. The District Munsif,
Chengam