BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 21.04.2010
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
CRP(NPD).No.301 of 2008
1.V.Venugopal
2.V.Sundaram .. Petitioners
Vs.
1.R.Janardhanan
2.Ranganayagi Ammal .. Respondents
Prayer:- This Revision petition is filed under Section 115 of Civil Procedure Code against the Fair and Decreetal Order dated 28.06.2007, made in I.A.No.1055 of 2005 in ASSR No.17922 of 2005, on the file of the Principal District Court, Coimbatore.
For Petitioners : Mr.V.Raghavachari
for Mr.C.Ravindran
For Respondents : Mr.N.Anand Venkatesh
O R D E R
The civil revision petitioners herein are the applicants in I.A.No.1055 of 2005 and the defendants in the suit in O.S.No.204 of 1995 and the appellants in the appeal in A.S.S.R.No.17922 of 2005, on the file of the Principal District Court, Coimbatore. The civil revision petitioners have filed an Interlocutory Application in I.A.No1055 of 2005, praying to condone the delay of 2186 days in filing the appeal to set aside the preliminary decree dated 19.11.1997 in O.S.No.204 of 1991 under Section 5 of Limitation Act.
2.In the said condone delay petition, the revision petitioners have inter alia stated that the respondents/plaintiffs have filed the suit in O.S.No.204 of 1991, on the file of the Sub-Court, Coimbatore for the relief of partition etc., There are four items of agricultural lands described in Schedule-A and house building described in Schedule-B. The respondents claimed half share in the entire properties. The petitioners contended that in Item No.1 of Schedule-A viz. S.F.No.120B, measuring an extent of 7.45 Acres. Out of which 3 Acres were sold to the deceased, first petitioner/first defendant, as per Ex.B3, dated 24.11.1961 and in the balance land an extent of 2.20 Acres was bequeathed in his favour as per Will dated 11.04.1969 and hence, the balance available for division is only 2.25 Acres. The lower Court accepted the sale deed, Ex.B3 and Will, Ex.B5. While reducing the extend under due the above said document, only the extend mentioned in the Will was deducted and inadvertently omitted to deduct 3 Acres conveyed under Sale Deed. Similarly, as per the Will Ex.B5, half of the property was bequeathed in favour of the deceased first defendant. Having given a finding in our favour that the Will is true and valid, inadvertently omitted to deduct the half portion with regard to Schedule-B.
3.The second petitioner submitted that the first defendant died on 05.12.1996. Further, he was sick and handicapped, hence, he could not contact his Advocate to know about the result of the case. The preliminary decree was passed on 19.11.1997. Later on, the second petitioner received notice in the final decree proceeding. Thereafter, he contacted his Advocate, who after perusing the Judgment and Decree advised him to file a petition under Section 152 of C.P.C. To amend the decree and accordingly I.A.No.723 of 2001 was filed in order to amend the decree. Enquiry was conducted in the above petition and the same was dismissed on 09.10.2001 on the ground that the decree alone cannot be amended. Immediately, he filed another petition in I.A.No.1617 of 2004 to amend the Judgment and Decree passed in O.S.No.204 of 1991. The learned District Munsif erroneously dismissed his petition. Thereafter another I.A.No.1617 of 2004 was filed to amend the Judgment and Decree, after three years. It was also contested on the ground that since no appeal had been filed against the preliminary decree or reviewed, no such petitioner will lie.
4.The Courts have upheld the preliminary decree in all these Interlocutory Applications contested. Now, eight years later, the present Interlocutory Application to condone the delay filed. The petitioners being parties to the decree know about the preliminary decree, which was passed and for about eight years no appeal is filed. Knowing the contents of the preliminary decree and Judgment, the Interlocutory Application filed, only to amend the decree and every stage they were aware. In the circumstances, the delay cannot be condoned. No sufficient cause whatsoever has been disclosed. Further, the petitioners have to assign proper and valid cause for the continuation of each and every day’s delay, but they have failed to do the same and on these grounds alone the petition is liable to be dismissed. The orders in I.A.Nos.723 of 2001 and 1617 of 2004 operate as res-judicata. After, seeking amendment and failing and having allow the orders to become final, no appeal can be filed. Hence, the third respondent prayed to dismiss the petition.
5.The learned District Munsif Court, Coimbatore, in his Order dated 28.06.2007 in I.A.No.1055 of 2005 in A.S.S.R.No.17922 of 2005 has observed that each and every day’s delay was not explained. Further, the learned Judge observed that the preliminary decree was passed on 17.11.1997, but the amendment petition was filed in the year 2001, ie.after four years. The said amendment petition was dismissed on 09.10.2001. Thereafter, another application was filed in the year 2004. It was also dismissed after three years. Subsequently, the petitioner prepared the appeal with a delay of 2786 days. This delay was not properly explained. Hence, the learned Judge dismissed the condone delay petition.
6.Aggreived by the said order passed by the learned District Munsif, Coimbatore, dated 28.06.2007 in I.A.No.1055 of 2005 in A.S.S.R.No.17922 of 2005, the present civil revision petition has been prepared by the civil revision petitioners/applicants/defendants.
7.The learned counsel appearing for the civil revision petitioners contended that the lower Court suffers from material irregularity in dismissing the application for condonation of 2788 days in filing the appeal against the Judgment and decree totally overlooking the fact that the Court should approach leniently in condoning the delay in filing appeal in the case involving the rights of the petitioners in the immovable property. The lower Court ought to have seen that the substantial justice should be done to the petitioners herein as against the technicalities filed against in doing substantial justice. The Trial Court has partitioned the properties including the properties concerned under the Will, which is self contradictory besides being perverse. The learned counsel further contended that the second petitioner is a physical handicapped person and the deceased first defendant namely Venkateswaralu Naidu, the father of the petitioners herein died on 05.12.1996 and thereafter, the first petitioner met the Advocate only during the year 2001 and thereafter I.A.No.723 of 2001 was filed. As such, the lower Court has committed an error in holding the petition and not adducing sufficient reason for condoning the delay. The learned counsel further contended that the lower Court committed an error in dismissing the application on the ground that the petitioners have not explained the day-to-day delay, which is against the settled principles of law. Further, it was contended that the length of delay is immaterial while doing substantial justice. In support of his contentions, the learned counsel cited the following Judgments made in 2007-3-L.W. 481, Arun Alexander Lakshman & another v. A.P.Vedavalli, the Hon’ble Madras High Court has held as follows:
"It is settled law that 'sufficient cause' must receive a liberal construction so as to advance substantial justice when no negligence, or inaction, or want of bonafide, is imputable to the applicant, the over-riding consideration being doing substandial justice. The Court should not lightly condone the delay in filing the application to set aside the exparte Decree. Discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The true test is whether the applicants have acted with due diligence. Para 11 It is settled law that Section 5 application is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go into the position of the person concerned and find out if the delay can be said to have been resulted from the cause which the petitioner had adduced and whether the cause stated in the circumstances of the case is sufficient. It is the condition precedent for the exercise of discretion that the Court must satisfy itself as to whether there was sufficient cause for exercising such discretion and condoning the delay. The expression 'sufficient cause' should be considered with pragmatism with a justice oriented approach. Para 17 Court has to see whether sufficient cause is shown for the delay. What is or what is not 'sufficient cause' would depend upon varied and special circumstances of each case. To decide whether sufficient cause is shown or not, it is very undesirable to act upon precedents as every Judge has to deal with particular facts of each case. Para 18" (2001) 1 M.L.J. 231, High Court of Madras, Devi v. Jayaraman, the relevant head notes of which are as follows: "Limitation Act (XXXVI of 1963), Sec.5 Application under, for condonation of delay Delay quite long Petitioner, held, cannot be punished with denial of opportunity to prosecute the main case Application, can be allowed with costs." (2001) 1 M.L.J. 105, High Court of Madras, Arunachalam v. Arunachalam Chettiar, the relevant head notes of which are as follows: "Limitation Act (XXXVI of 1963), Sec.5 Delay of 558 days in filing petition to restore suit dismissed for default Petitioner stating that he met calamities in life, resulting in mental suffering etc., resulting in delay Even if the delay is not properly explained, petitioner should not be punished with a denial of opportunity to prosecute his case Petition allowed on payment of cost of Rs.2,500.
The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could only be punished with costs and not with denial or opportunity to prosecute the case wherein his valuable rights are involved .”
1999 1 L.W.739, Supreme Court of India, Balakrishnan N. v. M.Krishnamurthy, the relevant head notes of which are as follows:
“Limitation Act (1963), S.5 Discretion of Court Section not to be construed as saying that such discretion is to be exercised only when the delay is within certain limit Length of delay is no matter Sufficiency of the explanation is the relevant criterion Duty of Court is to advance substantial justice and give liberal construction to the Section.
Rules of limitation are not meant to destroy rights of parties Refusing to condone delay is foreclosing a suitor from putting forth his cause There is no presumption that delay in approaching Court is always deliberate Delay condoned on terms.”
1999 (III) MLJ 261, Amudha v. Arumugham, the relevant head notes of which are as follows:
“Limitation Act (XXXVI of 1963), Sec.5 Condonation of delay Application by defendants to set aside ex-parte decree filed after delay of nearly 2600 days Order passed condoning delay with costs of Rs.1,000 to be paid by defendants to plaintiffs Said order challenged in revision Held, condonation of delay, a matter of discretion of court Length of delay does not matter if there is sufficient cause for it Unless the petitioner shows that the plaintiff was put to manifest injustice or hardship, discretion exercised by lower court not liable to be revised Also cost of Rs.1,000 ordered to be paid to plaintiff by lower court Interest of justice and rights of parties thus protected.”
8.The learned counsel appearing for the respondents contended that the preliminary decree passed in O.S.No.204 of 1991, wherein the respondents held to be entitled to 50% share in the property. The respondents filed I.A.No.138 of 1998 for a final decree and a notice was served on the petitioners. An Advocate commissioner was also appointed to divide the property. The petitioners filed I.A.No.723 of 2001 for amendment of the decree, the same was dismissed on 09.10.2001. Again the petitioners filed I.A.No.617 of 2004 to amend the Judgment and the same was dismissed. The learned counsel contended that an appeal was filed against the preliminary decree with a delay of 2786 days, the same was dismissed on 28.06.2007. The learned counsel relied upon three various Judgments made in (2009) MLJ 1047 (SC), the Hon’ble Supreme Court from para 15 has considered the question of sufficient cause and has held that if the explanation offered is a part of dialtory factics and unending period for launching the remedy will lead to uncertainity and consequential anarachy and a delay of 1724 days was refused to be condoned. In 2006 (2) LW 99, this Hon’ble Court held that when a valuable right has accrued to the opposite party the court will not condone the delay so as to substantially affect the rights accrued to the opposite party and in 2007 (3) L.W. 481, this Hon’ble court has held that there should not be negligence, inaction or want of bonafide and while exercising the discretion these factors must be considered to determine sufficient cause.
9.Considering the facts and circumstances of this case, arguments advanced by the learned counsel appearing on either side, on perusal of mentioned citations and the order of the learned District Judge, Coimbatore, this Court considered that the suit was filed in the year 1991 for partition of the schedule mentioned properties in the suit. Written statement also filed by the revision petitioners/defendants in an earlier stage. Preliminary decree passed on 17.11.1997 in O.S.No.2004 of 1991, on the file of the First Additional Sub-ordinate Court, Coimbatore. Thereafter, the revision petitioners had filed two applications in I.A.No.723 of 2001 for an amendment of the decree and another application in I.A.No.1617 of 2004 to amend the Judgment, both applications had been dismissed. Thereafter the appeal in A.S.S.R.No.17922 of 2005 filed along with condone delay petition for a delay of 2786 days and this was dismissed. In the dismissal order there is no discrepancy and wants to interfere in the said order passed in I.A.No.1055 of 2005, dated 28.06.2007. Further, this Court is of the opinion that this appeal was done after thought will an extended delay of 2786 days. Hence, this Court confirms the order and decreetal order passed in I.A.No.1055 of 2005 in A.S.S.R.No.17922 of 2005, passed by the learned District Judge, Coimbatore.
10.In the result, the above Civil Revision petition is dismissed and the Order dated 28.06.2007, in I.A.No.1055 of 2005 in ASSR No.17922 of 2005, on the file of the Principal District Court, Coimbatore, is confirmed. Consequently, connected miscellaneous petition is closed.
krk
To:
1.The Principal District Court,
Coimbatore