IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.03.2011 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Civil Revision Petition (NPD) No.180 of 2008 and M.P.No.1 of 2008 Jerina Begum ... Petitioner -Vs.- V.Sultan Abdul Kadar Rep. by Power Agent, Mr. Wahab ... Respondent Prayer:- Civil Revision Petition (NPD) filed under Section 115 of the Code of Civil Procedure against the order and decreetal order, dated 20.11.2007, made in I.A.No.168 of 2007 in O.S.No.22 of 2004 on the file of the District Munsif Court at Nagapattinam. For Petitioner : Mr. Srinath Sridevan For Respondent : No Appearance - - - O R D E R
The respondent herein filed O.S.No.22 of 2004 before the District Munsif Court, Nagapattinam, seeking a decree for mandatory injunction to remove the construction put up by the petitioner herein. The petitioner herein had entered appearance through a counsel and filed the written statement. The suit was listed for trial on 10.11.2006 and as the Presiding Officer was on leave, it was adjourned to 13.11.2006 and on that date, the respondent herein was examined and documents were marked and the suit was adjourned to 15.11.2006 for cross-examination of P.W.1 and on that date, the learned counsel for the petitioner herein reported no instructions and hence the suit was decreed exparte.
2. Thereafter, the petitioner filed an Interim Application to set aside the exparte decree with a petition in I.A.No.168 of 2007 under Section 5 of the Limitation Act to condone the delay of 81 days in filing the petition to set-aside the exparte decree. In the affidavit filed in support of the petition to condone the delay, it was stated by the petitioner that as she was laid up with jaundice and was taking native treatment, she could not contact her counsel and only after coming to know about the execution proceedings initiated by the respondent, she came to know about the exparte decree and immediately contacted her counsel and made arrangements to file the aforesaid petitions.
3. The said petition was contested by the respondent herein contending that the petitioner was not laid up with jaundice and if she had been really laid up with jaundice, she could have easily contacted the clerk of the counsel for the petitioner, who was residing near her residence and taken necessary steps. It was further contended that it is not correct to state that she came to know about the passing of the exparte decree only after receiving notice in the execution petition.
4. The Court below, on a consideration of the aforesaid contentions, was not satisfied with the explanation offered by the petitioner for the delay and accordingly, dismissed the petition. Being aggrieved by that, the petitioner is before this Court.
5. Though in the above Civil Revision Petition, the respondent has been served and his name shown in the cause list, he is neither appearing in person nor through counsel, hence, the above Civil Revision Petition is being disposed of on merits.
6. Learned counsel for the petitioner submitted that only because the petitioner was laid up with jaundice, she could not contact her counsel and the learned counsel further submitted that the suit is for mandatory injunction for removal of load bearing pillar of the petitioner’s house and if the pillar is removed, the petitioner’s dwelling house would crumble and in such circumstances, it cannot be presumed that the petitioner would have wilfully absented herself from appearing before the Court and by not appearing before the Court, she could not be gaining anything and therefore, an opportunity should have been given to the petitioner to contest the suit, on merits. He further submitted that the Court below has taken a pedantic approach to the issue without making a pragmatic approach. He further submitted that the Apex Court and this Court has repeatedly pointed out that the approach of the Court should be to do justice to the parties on merits and at the threshold itself, the defence taken should not be shut out.
7. I have considered the aforesaid submissions made by the learned counsel and perused the materials available on record.
8. As pointed out by the Court below, it is true that the petitioner was not let in any evidence to substantiate that she was laid up with jaundice, except the averment in the affidavit. But as rightly contended by the learned counsel for the petitioner by allowing an exparte decree to be passed against her, the petitioner will not be gaining anything, whereas, if the decree for mandatory injunction is executed, the load bearing pillar of the petitioner’s house will be removed and the petitioner’s dwelling house would crumble. In such circumstances, it cannot be presumed that the petitioner wilfully absented herself from appearing before the Court. It has to be further pointed out that the delay is not huge. In such circumstances, the Court should have taken a pragmatic approach to the matter and allowed the application on terms so that the respondent’s interest will also be protected.
9. At this juncture, it will be useful to refer to a decision of the Apex Court reported in 2002 (1) CTC 769 (Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao). In the said decision, in paragraph 12, it has been laid down as follows:-
“12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependant upon facts of each case. There cannot be a straitjacket formula or accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and / or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”
10. In yet another decision of a Division Bench of this Court reported in 2008 (1) CTC 785 (Ravi Enterprises v. Indian Bank), the decision of the Apex Court reported in 2002 (1) CTC 769 (referred to supra) has been referred to and relied upon. In the said decision, in paragraph 14, the Division Bench has laid down as follows:-
“14. We are of the view that refusal to condone delay can result in a meritorious matter being thrown at the early stage and cause of justice being defeated. Moreover, the law Courts should not prefer to adopt a pedantic approach and on the other hand a pragmatic approach has to be made to deliver substantial justice overriding technical considerations……..”
11. Therefore, this Court is of the considered view that the refusal to condone the delay will result in a meritorious matter being thrown out at an early stage and cause of justice will be defeated. The Court below has adopted a pedantic approach and has not made a pragmatic approach.
12. As has been laid down by the Apex Court in the decision reported in 2002 (1) CTC 769 (referred to supra) that in every case of delay, there can be some lapse on the part of the litigant concerned and that alone is not enough to turn down his plea and to shut the door against him. Therefore, the Court should have taken a pragmatic view of the matter and should have also considered the merits of the case and should have condoned the delay on terms.
13. For the aforesaid reasons, the above Civil Revision Petition is allowed and the order, dated 20.11.2007, made in I.A.No.168 of 2007 in O.S.No.22 of 2004 on the file of the District Munsif Court at Nagapattinam, is set-aside, on condition of the petitioner paying a sum of Rs.5,000/-, by way of a demand draft drawn on a nationalised bank, as cost, in favour of the respondent herein, within a period of four weeks from the date of receipt of a copy of this order. It is made clear that if the cost is not paid within the time stipulated, the Civil Revision Petition will stand automatically dismissed, without any further reference to this Court. No costs. Consequently, the connected MP is closed.
31.03.2011
Index : Yes / No
Web : Yes / No
srk
Note to office.: Issue order copy on or before 05.04.2011
K.MOHAN RAM, J.,
srk
To
The District Munsif Court at Nagapattinam.
CRP (NPD) No.180 of 2008
& M.P.No.1 of 2008
31.03.2011