IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.07.2009
CORAM:
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
C.R.P (N.P.D)No.1830 of 2008
and
M.P. No. 1 of 2008
1. Government of Tamil Nadu rep. by its
District Collector, Cuddalore.
2. Assistant Divisional Engineer,
Highways Department, Thittakudi .... Petitioners
Vs.
A.M. Rathinam Pillai .... Respondent
PRAYER: Civil Revision Petition is filed under Section 115 of CPC, against the order and decreetal order dated 06.12.2006 made in I.A. No.204/2006 in O.S.164/97 on the file of District Munsif cum Judicial Magistrate, Tittagudi.
For Petitioners : Mrs. R. Revathy
Additional Government Pleader
For Respondent : Ms. R. Meenal
O R D E R
The petitioners herein have preferred the Civil Revision Petition as against the order dated 6.12.2006 in I.A.No.204 of 2006 in O.S.No.167 of 1997 passed by the learned District Munsif cum Judicial Magistrate, Tittagudi in dismissing the application filed by the petitioners under Section 5 of the Limitation Act, praying to condone a delay of 1504 days in setting aside the ex-parte decree dated 10.10.2001 passed in the main suit.
2. The trial Court while passing orders in I.A. No. 204 of 2006 has stated that the reason assigned by the petitioners that the Assistant Divisional Engineer has not been present in the Court when the case has come up for hearing and further that the suit file have got mixed up with the other files, and therefore, the delay that has occasioned, has not been accepted and resultantly dismissed the application without costs.
3. According to the learned counsel for the revision petitioners, the order of the trial Court in dismissing the Section 5 application is against law and further the trial Court has not appreciated all the facts, that only due to urgency of work that the Additional Divisional Engineer has not appeared before the trial Court on 10.10.2001 when the ex-parte decree has been passed and sufficient reasons assigned for condonation of delay have not been properly appreciated by the trial Court in a right perspective and therefore it has resulted in miscarriage of justice and therefore prays for allowing the Civil Revision Petition.
4. It is further represented on the side of the revision petitioners that in the application filed under Section 5 of the Limitation Act, the Court of law has to adopt a liberal approach in a meaningful way.
5. The learned Counsel for the respondent/plaintiff submits that the petitioners in the affidavit in I.A No. 204 of 2006 has assigned reasons falsely in regard to the delay of 1504 days which is occasioned and the trial Court, after considering the overall facts and circumstances of the case,has come to a right conclusion in dismissing the application and the same need not be inferred with by this Court sitting in revision.
6. In support of the contention that the petitioners have not assigned sufficient cause in regard to the delay of 1504 days mentioned in the application, the learned counsel for the respondent/plaintiff cites the decision in United India Insurance Company Ltd. Division Office, Pondicherry Vs. Pravin Paul 2.N.Periannam(1993-1L.W.68) where in it is observed as follows:-
” the delay of 131 days in filing the CMA against the order of the MACT on the part of the appellant/insurance company was not justified and cannot be condoned. The court declined to accept the submission that the petitioner was an Insurance company, that it is a Government undertaking, that it is usual that such administrative delay would occur and the delay has occurred only account of administrative reasons and that unless the delay is condoned, the petitioner would be put to very great hardship. The Government Undertaking cannot be equated with the Government and they are expected to give details with regard to the delay. “We cannot condone the delay if it is simply stated, administrative delay. Hence, we are of the view that this is a case where the petitioner has not satisfactorily explained the delay, which is inordinate, in filing the appeal.”
7. In another decision Indian Oil Corporation Ltd., Madras v. Mrs. Sakuntala Ganapathy Rao, Proprietor (1998-3-L.W.780) is relied on the side of the respondent to the effect that the “delay cannot be excused where a party is not under a disability and he was aware of the judgment and a right is created when the stipulated time expires.”
8. This Court has paid its anxious consideration on the submissions made on both sides and noticed the same.
9. It is to be borne in mind that the term “sufficient cause” under Section 5 of the Limitation Act will have to be given a purposeful and meaningful interpretation. In the considered opinion of this Court ordinarily a litigant does not stand to gain by preferring an application belatedly. It is not that the delay has occasioned deliberately or based on malafide intention or even on account of culpable negligence. However the Court of law in regard to condonation of delay application should not adopt a pedantic approach, instead it should approach the matter in issue in a liberal and pragmatic manner.
10. As a matter of fact, by allowing an application filed under Section 5 of Limitation Act, the maximum thing that can happen is, a party is allowed to take part in the main proceedings and the main cause can be decided on merits after providing due opportunities to both parties. Moreover, the deliverance of substantial justice is to be preferred overriding technicalities. It is to be noted that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
11. Therefore, by adopting a liberal view and interpreting the term “sufficient cause” under Section 5 of the Limitation Act,this Court allows the Civil Revision Petition of course with a condition that the petitioners shall pay a sum of Rs.3,000/- (Rupees Three thousand only) as costs to the learned counsel for the respondents directly on or before 03.08.2009 failing which the civil revision petition shall stand automatically dismissed.
12. In the result the Civil Revision Petition is allowed leaving the parties to bear their own costs. The order passed by the trial Court in I.A. No. 204 of 2005 in O.S.No. 164 of 97 dated 06.12.2006 is set aside. The petitioners are directed to pay a sum of Rs.3,000/-(Rupees three thousand only) towards costs to the learned counsel for the respondents directly and the same is to be paid on or before 03.08.2009 failing which the petition shall stand automatically dismissed without any further reference. Consequently, connected M.P.No.1 of 2008 is closed.
prm
To
The District Munsif cum Judicial Magistrate,
Tittagudi