BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/04/2007 CORAM: THE HONOURABLE MR. JUSTICE S.NAGAMUTHU C.R.P. NPD (MD) No.748 OF 2005 and C.M.P.(MD) NO.4643 OF 2005 and M.P.(MD) NO.1 OF 2006 Madhana Gurusamy .. Petitioner Vs The Tamil Nadu Kadhi and Village Industries Board, Rep. By Assistant Director Virudhunagar .. Respondents Prayer This Civil Revision Petition has been filed under Section 115 of C.P.C. against the fair and decreetal order of the learned Sub Judge, Virudhunagar dated 17.02.2005 and made in I.A.No.211 of 2004 in O.S.No.51 of 1998. !For Petitioner : Mrs. Lakshmi Gopinath ^For Respondent : Mr. K. Mahendran :ORDER
This Civil Revision Petition has been filed by the petitioner, challenging
the order dated 17.02.2005 made in I.A.No.211 of 2004 in O.S.No.51 of 1998 on
the file of the learned Subordinate Judge, Virudhunagar.
2. Brief facts of the case are as follows:-
The petitioner herein is the second defendant and the respondent herein is
the plaintiff in O.S.No.51 of 1998 on the file of the learned Subordinate Judge,
Virudhunagar. The said suit was filed by the respondent herein for recovery of
a sum of Rs.1,91,341/- with interest based on a business transaction between the
parties.
3. In the said suit, the petitioner did not appear on 27.06.2001 when the
case was posted for trial and therefore he was set exparte and an exparte decree
was passed. Subsequently, it appears that an execution petition has also been
filed against the petitioner. After notice was served regarding the execution
petition, the petitioner says that he came to know about the exparte decree
passed on 27.06.2001 and thereafter he took steps to file an Interlocutory
Application to set aside the exparte decree. While doing so, there had occurred
a delay of 1194 days. Seeking to condone the said delay, the petitioner has
filed an application in I.A.No.211 of 2004 before the lower Court. In the
affidavit filed in support of the petition, the petitioner has offered his
explanation for the delay stating that he had no knowledge about the passing of
exparte decree on 27.06.2001 and he came to have knowledge only from the notice
served in respect of the execution petition. The respondent herein has filed a
counter in the said petition wherein he has stated before the lower Court that
on receiving summons, the petitioner had engaged a counsel and thereafter,
though the case was posted for 30 hearings, the petitioner did not choose to
file his written statement and therefore finally on 27.06.2001, the Court passed
the exparte decree. Further, he has stated that the delay has not been properly
explained. After considering the relevant materials, the lower Court has
dismissed the said application holding that the delay has not been properly
explained away to the satisfaction of the Court. It is the said order which is
now under challenge.
4. Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent.
5. At the outset, before going to the facts of the case, it is necessary
to refer to the judgment of the Hon’ble Supreme Court reported in (1998)7
Supreme Court Cases 123 (N. Balakrishnan Vs. N. Krishnamurthy) wherein the
Hon’ble Supreme Court has elaborately dealt with the proper approach to be made
in cases where a Court is required to consider delay condonation petitions filed
under Sec.5 of the Limitation Act. In paragraph 9 of the judgment the Hon’ble
Supreme Court has held as follows:
“Para 9. Once the Court accepts the explanation as sufficient, it is the result
of positive exercise of discretion and normally the Superior Court should not
disturb such finding, much less in revisional jurisdiction, unless the exercise
of discretion was or wholly untenable grounds or arbitrary or perverse.
But it is a different matter when the first court refuses to condone the delay.
In such cases, the Superior Court would be free to consider the cause shown for
the delay afresh and it is open to such superior Court to come to its own
finding even untrammelled by the conclusion of the Lower Court.”
6. In the case on hand, since the lower Court has refused to condone the
delay, as observed by the Hon’ble Supreme Court, it is for this Court to
consider the cause shown for the delay afresh and to come to its own finding
untrammelled by the conclusion of the lower Court.
7. Keeping this in mind if the facts of the case on hand are approached, I
am of the view that the delay needs to be condoned as the same has been
satisfactorily explained.
8. Of Course, it is true that on service of summons, the petitioner had
appeared and engaged a counsel and the case was also posted for about 30
hearings for filing written statement and till written statement was not filed
resulting in passing of exparte decree. But the learned counsel would submit
that the petitioner was in Kerala and he was not duly informed by his counsel
about the progress in the case. The fact that the petitioner was residing only
in Kerala is not in dispute. It is also to be seen from the records that the
decree was transferred for execution of a decree in Kerala State which would
clearly establish that the petitioner was not in his native place and he was all
along only in Kerala. Therefore there is every possibility that the counsel who
appeared in the lower Court would not have informed the petitioner about the
progress of the case. Though it is the duty of the petitioner to have contacted
his counsel to know about the stage of the case, the said failure of the
litigant should not be so seriously viewed to deny his right to contest the
case.
9. In the same judgment referred to above the Hon’ble Supreme Court in
Para 8 of the judgment has observed as follows:
“Para 8. The appellant’s conduct does not on the whole warrant to castigate him
as an irresponsible litigant. What he did in defending the suit was not very
much far from what a litigant would broadly do. Of course, it may be said that
he should have been more vigilant by visiting his advocate at short intervals to
check up the progress of the litigation. But during these days when everybody
is fully occupied with his own avocation of life an omission to adopt such extra
vigilance need not be used as a ground to depict him as a litigant not aware of
his responsibilities, and to visit him with drastic consequences.
10. In view of the above observations made by the Hon’ble Supreme Court, I
am of the view that by refusing to condone the delay, the petitioner should not
be allowed to face the drastic consequences of exparte decree for such a huge
sum of money.
11. Further, in Para 13 of the judgment, the Hon’ble Supreme Court has
held as follows:
Para 13. It must be remembered that in every case of delay, there can be some
lapse on the part of the litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If the explanation does not
smack of mala fides or it is not put forth as part of a dilatory strategy, the
Court must show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by the party
deliberately to gain time, then the Court should lean against acceptance of the
explanation. While condoning the delay, the court should not forget the
opposite party altogether. It must be borne in mind that he is a loser and he
too would have incurred quite large litigation expenses. It would be a salutary
guideline that when court condone the delay due to laches on the part of the
applicant, the Court shall compensate the opposite party for his loss.
12. In the case on hand also, the explanation offered by the petitioner
does not smack of mala fides and it does not reflect any dilatory strategy on
the part of the petitioner to drag on the proceedings.
13. Applying all the above said principles laid down by the Hon’ble
Supreme Court, I am of the considered view that the delay in this case has been
properly explained away to the satisfaction of the Court and therefore the same
requires to be condoned.
14. While so doing, the loss which would have been sustained by the
respondent on account of the delay in filing the petition to file I.A to set
aside the exparte decree cannot be lost sight of. The Hon’ble Supreme Court has
issued a salutary guideline in this regard in Para 13 of the said Judgment.
“When Court condones the delay due to laches on the part of the applicant, the
Court shall compensate the opposite party for his loss.”
15. In the counter filed by the respondent before the lower Court, he has
stated that if the delay is condoned for any reason, it would result in loss to
the respondent and he has further stated that if the delay is condoned, the
petitioner may be directed to deposit the entire decree amount before the lower
Court. In this regard, it is to be seen that in pursuant to the direction
issued by this Court on 26.08.2005, the petitioner has already deposited 50% of
the suit claim. The learned counsel for the respondent has now offered to
deposit another 25% of the suit claim before the lower Court. This Court is of
the view that this will safeguard the interest of the respondent. Further on
the question of costs, I am of the view that directing the petitioner to pay a
sum of Rs.2000/- would adequately compensate the loss sustained by the
respondent.
16. For all the reasons stated above, this C.R.P. is allowed; the delay of
1194 days in filing the I.A seeking to set aside the exparte decree dated
27.06.2001, is condoned and I.A.No.211 of 2004 in O.S.No.51 of 1998 stands
allowed.
17. The petitioner is directed to deposit another 25% of the suit claim
before the lower Court within a period of four weeks from the date of receipt of
a copy of this order and on further condition that the petitioner shall pay a
sum of Rs.2000/- towards cost to the respondent within the said time.
Considering the long pendency of the case, the learned counsel for the
respondent has made a request for a direction to the lower Court to dispose of
the case expeditiously. Considering the same, the lower Court is directed to
dispose of the case as expeditiously as possible. It is made clear that in
the event of the suit
getting decreed in favour of the respondent, the respondent shall be entitled to
withdraw the amount deposited in the lower Court to set aside the decree amount.
In the event of the suit being dismissed by the lower Court, the petitioner
shall be entitled to withdraw the deposited amount.
18. In the result, the Civil Revision Petition is allowed with above
directions. Consequently, connected M.P. is also closed.
To
The Subordinate Judge,
Virudhunagar.