IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 30-09-2008 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN C.R.P.NPD.No.2694 OF 2008 C.Raghupathy ... Petitioner -vs- 1.C.Govindan 2.Uma Rani 3.B.Ranganathan ... Respondents (Respondents 2 and 3 given up) Revision against the order dated 27.12.2005 passed in I.A.No.646 of 2001 in O.S.No.1338 of 1997 on the file of District Munsif, Thiruvottriyur, For petitioner : Mr.J.R.K.Bhavanantham For respondents : Mr.G.Ethirajulu, for Mr.M.Muruganandam. O R D E R
Respondent had filed the suit O.S.No.1338 of 1997 on the file of District Munsif, Thiruvottriyur, against the petitioner for declaration of title, recovery of possession and consequential injunction in respect of the suit schedule property. The said suit was decreed ex parte on 19.01.1999. Thereafter, the petitioner filed I.A.No.646 of 2001 to condone the delay of 942 days in filing an application to set aside the ex parte decree. In the meantime, the respondent filed E.P.No.29 of 1999 for delivery of possession and obtained an ex parte order of delivery on 30.03.2000, pursuant to which the petitioner filed E.A.No.61 of 2001 to set aside the said ex parte order of delivery and E.A.No.24 of 2004 for appointment of Taluk Surveyor to find out the correct survey number of the property in possession of the petitioner; to locate the survey number 1174/3A2 and also to find out the person in actual possession. The Executing Court dismissed E.A.No.24 of 2004 on 27.12.2005, against which the petitioner preferred C.R.P.NPD.No.993 of 2006 on the file of this Court and the same came to be dismissed.
2. Now, the order of dismissal, dated 27.12.2005, passed in I.A.No.646 of 2001, refusing to condone the delay of 942 days in filing an application to set aside the ex parte decree passed in the suit, is under challenge in this revision.
3. Learned counsel for the petitioner would contend that the delay had occurred due to the communication gap between the petitioner and his previous counsel on record; the petitioner purchased the ‘C’ schedule property from the respondent for a valuable consideration and constructed a pucca building thereon; the petitioner was in possession of the said property prior to the filing of the suit; therefore, the trial Court was at error in dismissing the condone delay application, thereby subjecting the petitioner to irreparable loss and prejudice, and as such, the order impugned is liable to be set aside.
4. The said contention is rebutted by the learned counsel for the respondent, contending that there was no bona fide in the case of the petitioner in moving the application for condoning the enormous delay of 942 days and since sufficient cause had not been shown, covering the entire period, the trial Court was right in dismissing the application. The learned counsel would cite a Division Bench decision of this Court in Sundar Gnanaolivu v. Rajendran Gnanavolivu, 2003 (1) L.W.585, wherein, it has been held as under :
“15…..Sufficient cause has been exhibited to note that wherever there is lack of bona fides or attempt to hoodwink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words, when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court, if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then, by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.”
5. When there is total lack of bona fide on the part of the petitioner while coming forward with the application, I am of the view that this case does not deserve liberal approach formula in matters relating to condonation of delay. Therefore, the reason adduced by the petitioner that there was a communication gap between him and his previous counsel on record for seeking condonation of extraordinary delay of 942 days in filing an application to set aside the ex parte decree cannot be countenanced.
6. Further, in Sundar Gnanaoliv’s case, cited supra, it is held that when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court, if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then, by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.
7. But, in this case, there is an extraordinary delay of 942 days in filing the application. Even by engaging a counsel, party to the case is not relieved of his duties and obligations. Where a party either does not fully brief the counsel or keep no contact with him, it is the party who is in default and negligence and has to bear the consequences. Moreover, the petitioner was not diligent even after engaging the present counsel on record. The time taken for filing the application after engaging the new counsel was 115 days and there was no reasonable and acceptable explanation for those days. Hence, putting the blame on the counsel cannot be an excuse to the petitioner to establish sufficient cause for condonation of delay. It is also seen that the respondent/plaintiff is aged more than 70 years and a Senior Citizen. Besides, the suit is of the year 1997. At this stage, if the enormous delay of 942 days is condoned, the respondent will be prejudiced and put to irreparable loss.
8. It is also well settled that the question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a victorious litigant cannot be expected to remain disgruntled indefinitely for a period to be determined at the whims and fancies of the opponent.
9. Under the circumstances, I see no reason to interfere with the order passed by the trial Court, which dealt with the issue at length and passed a reasoned order. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2008 is also dismissed.
dixit
To
The District Munsif,
Thiruvottriyur