ORDER
R. Banumathi, J.
Page 0586
1. This Revision Petition is directed against the order dated 27.04.2005 passed by the Subordinate Judge, Hosur in I.A. No. 94 of 2005 in O.S. No. 130 of 1999 dismissing the Application filed under Section 5 of the Limitation Act for non-compliance of the conditional cost of Rs. 500/- as ordered by the Court.
2. The Respondent / Plaintiff filed a suit in O.S. No. 130 of 1999 on the file of Subordinate Court, Hosur for specific performance in respect of the Suit Page 0587 Property, which is an extent of 6.47 acres. The Revision Petitioner / Second Defendant has entered appearance and filed the Written Statement interalia raising various allegations. The Suit was posted for Trial on 05.07.2004. Since the Petitioner has to accompany his wife to Bangalore on account of her ill health, he could not be present in the Court nor could inform his Advocate about his inability to appear. The Petitioner was set exparte on 05.07.2004 and exparte decree was passed against him on the same day.
3. The Petitioner has filed I.A. No. 94 of 2005 under Section 5 of the Limitation Act to condone the delay of 18 days in filing the Petition under O.9 R.13 C.P.C. On being satisfied that the Petitioner was prevented by sufficient cause from appearing in the Court and that the delay has been satisfactorily explained, by order dated 15.04.2005, the Court allowed that Application on conditional cost of Rs. 500/- payable to the Plaintiff on or before 26.04.2005. The Petitioner did not comply with the condition and the Application was dismissed on 27.04.2005 for non-payment of cost, which is challenged in this Revision Petition.
4. According to the Petitioner, he is living in a remote village far away from Hosur and his counsel could not inform about the conditional order passed by the Court and he is also suffering from Viral fever in the second week of April 2005 and he could meet his counsel only on 28.04.2005, by which time, the Application was dismissed for non-compliance of the condition.
5. Onbehalf of the Petitioner, learned Counsel for the Petitioner has contended that non-compliance of the condition is neither wilful nor wanton, but only because of the illness of wife of the Petitioner. It was submitted that by the learned Counsel that Execution Petition has been filed for executing the decree for specific performance and if the exparte decree is not set aside, the Petitioner would be subjected to great hardship.
6. Showing his bonafide in contesting the Suit, the Petitioner has filed an elaborate Written Statement raising various defence. He had also shown sufficient cause for his non-appearance on 05.07.2004. There is no reason to disbelieve the version of the Petitioner that he was suffering from Viral fever and that he could not comply with the conditional order. The Petitioner could have very well filed the Application before the lower Court under Sec. 148 C.P.C., in which case, the lower Court itself might have enlarged the time for paying the cost. But, non filing of any such application before the Lower Court need not be an impediment in showing indulgence to the Petitioner.
7. In the decision reported in Gowri Ammal v. Murugan and Ors. , speaking for the Bench, M. KARPAGAVINAYAGAM, J. has held that Section 148 C.P.C confers ample discretionary powers regarding enlargement of time and Section 151 C.P.C can be invoked to seek necessary Page 0588 order for ends of justice. Holding that the Court has got power to enlargement time, in the said decision, the Division Bench has observed as follows:
…17. The duty of the Court of Law is to administer justice, sometimes loosening the rigors of the procedural law. It is the substantive justice, which should be administered and not the procedural justice. Procedure is meant to facilitate the way for the administration of real justice and not to defeat it.
18. In the light of the principles laid down by the Supreme Court in Salem Advocate Bar Association, T.N. v. Union of India , Sections 148 and 151 C.P.C allow extension of time, even if the original period fixed has expired. Similarly, Section 149 also is equally liberal in this respect.
19. So, a conjoint reading of Sections 148, 149 and 151 C.P.C would make it clear that the Court has power to extend time beyond the stipulated period, when sufficient cause exists or events pointed out to the Court for non-compliance of the order are beyond the control of the party, as the object of the Code is not to promote failure of justice….
8. Though the Petitioner has not filed any Application for extension of time, in the interest of justice, the Petitioner could be directed to pay the costs to the Plaintiff, however, not the same costs of Rs. 500/-, but to compensate the Plaintiff by awarding a higher costs of Rs. 2000/-. The Revision Petitioner / Second Defendant is directed to pay a sum of Rs. 2,000/- (Rupees Two Thousand Only) as costs to the Respondent / Plaintiff. Today, the sum of Rs. 2,000/- has been paid by the Revision Petitioner to the Respondent in the open Court.
9. In the result, the Impugned Order dated 27.04.2005 of the Subordinate Judge, Hosur in I.A. No. 94 of 2005 in O.S. No. 130 of 1999 is set aside and this Civil Revision Petition is allowed with costs of Rs. 2,000/-. The costs of Rs. 2000/- has been paid by the Revision Petitioner to the Respondent in the open Court. The connected C.M.P. No. 85 of 2007 is closed. The Trial Court is directed to number the Application under O.9 R.13 C.P.C and allow the same without ordering any further costs (since higher cost has been paid in this Court).
10. After setting aside the exparte decree, the Trial Court is directed to afford sufficient opportunity to both parties and proceed with the matter in accordance with law.