BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/01/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.NPD.No.1185 of 2003 and C.M.P.No.12461 of 2003 1.Peyathevar (died) ..Petitioner NO. 1/Defendant 2.Jayalakshmi 3.Suresh Kumar 4.Asha Prabhakar ... Petitioners 2 to 4 (Petitioners 2 to 4 are brought on record as LRs of the deceased sole petitioner vide order in C.M.P.No.1582 of 2004 dated 09.08.2006) Vs. Renganathan ... Respondent/Plaintiff Prayer Petition filed under Section 115 of the Civil Procedure Code, against the fair and final order passed in I.A.No.99 of 2002 in O.S.No.121 of 1996 dated 09.07.2003 on the file of the Sub Court, Periyakulam. !For Petitioners ... Mr.Vellaichamy for Mr.M.V.Venkataseshan ^For Respondent ... Mr.A.Arumugam :ORDER
The Civil Revision Petitioner/defendant has preferred the present Civil
Revision Petition as against the order dated 09.07.2003 in I.A.No.99 of 2002 in
O.S.No.121 of 1996 passed by the learned Sub Judge, Periyakulam.
2. During the pendency of this Civil Revision Petition, the
petitioner/defendant has expired and therefore, his legal representatives have
been brought on record as revision petitioners 2 to 4 as per the order dated
09.08.2006 in C.M.P.No.1582 of 2004.
3. The trial Court while passing orders in I.A.No.99 of 2002 in O.S.No.121
of 1996 on 09.07.2003, has among other things, observed that ‘the petitioner has
not clearly explained the reasons for the delay that has been caused and the
reason assigned for the delay is not to be condoned and resultantly, dismissed
the said application with costs.’
4. According to the learned Counsel for the petitioners, the trial Court
while passing the order in I.A.No.99 of 2002 in O.S.No.121 of 1996, has not
properly exercised its jurisdiction and in fact, the revision
petitioner/defendant (since deceased) has established a sufficient cause for the
delay, but this aspect of the matter has not been looked into by the trial Court
in a proper perspective which has resulted in serious miscarriage of justice.
5. Continuing further, it is the submission of the learned Counsel for the
petitioners that the trial Court should have adopted the liberal approach in
regard to the condonation of delay application and indeed, the order of the
trial Court in dismissing the I.A.No.99 of 2002 dated 09.07.2003 is nothing but
the denial of justice to the petitioners resulting in closing the doors for them
to prove their case of defence in the suit.
6. Advancing his arguments, the learned Counsel for the petitioners
submits that when the suit in O.S.No.121 of 1996 filed by the
respondent/plaintiff is one for specific performance, then the trial Court
should have provided an opportunity to the petitioners to contest the matter on
merits.
7. It is the stand of the petitioners that the non-appearance of the
revision petitioner/defendant (since deceased) has been due to misplacement of
the letter written by the Counsel about the stage of the case and for the same,
the petitioners ought not to be punished to suffer an ex-parte decree. In
short, the plea of the petitioners is that the trial Court has not looked into
the material factual aspects of the matter in a real perspective and therefore,
prays for allowing the Civil Revision Petition in furtherance of substantial
cause of justice.
8. Per contra, it is the submission of the learned Counsel for the
respondent/plaintiff that the ex-parte decree has been passed on 02.11.2000 by
the trial Court in the suit and E.P.No.22 of 2001 has been filed by the
respondent/plaintiff before the Executing Court and the revision
petitioner/defendant (since deceased) has received the notice in E.P and
appeared through the Counsel for the first hearing on 29.03.2001 and further, in
order to save himself from the legal proceedings after filing of the E.P.No.22
of 2001, the revision petitioner/defendant (since deceased) has projected
I.A.No.99 of 2002 by assigning false reasons.
9. Also, it is the submission of the learned Counsel for the
respondent/plaintiff that I.A.No.99 of 2002 has been filed by the revision
petitioner/defendant (since deceased) under Section 5 of the Limitation Act, to
protract the legal proceedings with an ulterior motive and as such, the said
application has to be dismissed with costs.
10. In the affidavit filed in I.A.No.99 of 2002 by the revision
petitioner/defendant (since deceased), it is stated in paragraph 2 as hereunder:
“2. I submit that the suit came up for Trial on 2-11-2000. I submit that I
am working as Headmaster in a Government Higher Secondary School in Surlipatti,
Theni District and I used to come to once in a month only. The members in my
family has misplaced the communication sent by my counsel regarding the date of
Trial and hence I was not able to attend the court on 2-11-2000. This honourable
court has set me exparte and a decree has also been passed against me. My
absence on that was neither willful nor wanton. Only now I came to know about
the exparte decree passed against me. I have got a good case to defend the suit.
Hence I have filed an application to set aside the exparte decree passed against
me. In filing the application there is a delay of 425 days. The delay in filing
this application is neither willful nor wanton. I am always ready and willing to
conduct the case.”
11. However, the respondent/plaintiff in his counter to I.A.No.99 of 2002
has inter alia mentioned that the revision petitioner/defendant (since deceased)
has deliberately not appeared on the date of hearing of the suit on 02.11.2000
and has allowed the case for passing of the exparte final decree and the reason
assigned by the revision petitioner/defendant (since deceased) for condoning the
delay of 425 days in filing an application to set aside the exparte decree, is
not valid one in the eye of law.
12. The learned Counsel for the petitioners relies on the decision of this
Court in K.Thirumurthy and another v. Muthammal and others reported in (2003)3
M.L.J.369, wherein it is held as follows:
“Though sufficient cause is not shown to condone the delay in filing the
petition to set aside the ex parte decree to meet the ends of justice the delay
can be condoned.”
13. He also seeks in aid the decision of this Court in T.V.Sundaram
Iyengar and Sons Ltd., Salem-9 v. S.Raghunathan reported in (2008) 2 MLJ 845, at
page 846, wherein it is laid down as follows:
“Generally a party does not stand to benefit by filing an application late
and refusing to condone the delay can result in a meritorious matter being
thrown out at the nascent stage and cause of justice being defeated.
‘Sufficient Cause’ for delay condonation must be viewed liberally.”
14. It is true that the statute of limitation is a beneficial legislation.
In an application for condonation of delay, it is the duty of the
petitioner/petitioners to place all essential/necessary materials before the
Court of law for explaining the delay showing that there has been a sufficient
cause/good cause entitling him for condonation of delay. It is an axiomatic
principle in law that justice oriented approach is quite necessary when a Court
of law deals with an application under Section 5 of the Limitation Act. Even
mere deviations from procedure are to be ignored by a Court of law while
exposing the cause of justice. As a matter of fact, it cannot be construed that
in every case, the delay must necessarily be condoned as per the decision in
Devandas Kishnani and others v. Nanikram Kishnani and others reported in AIR
1993 Bom 76, at page 86. Also in a condonation of delay application, if an
incorrect statement is made, then that will be a sufficient reason to reject the
application as per the decision in M/s.Rish Prabhat v. Delhi Development
Authority, reported in AIR 1995 Del 9.
15. As far as the present case is concerned, the evidence of the revision
petitioner/defendant (since deceased) (P.W.1) before the trial Court in cross-
examination, is to the effect that even when he has been serving in outstation,
his family has been at Madurai and before 04.01.2000, he has served at
Thumbakundu and he used to travel from Thumbakundu to Madurai daily.
16. It is the further evidence of revision petitioner/defendant (since
deceased) (P.W.1) that he has engaged an advocate viz., one Alagardevar on his
behalf and during March 2001, he has met his counsel and his counsel has
informed him that E.P. stage has come and an application can be filed and
further that, for every hearing, he used to meet his counsel and know about the
stage of his case, but he has not been remembering as to whether he has met his
counsel before and only on 27.03.2001, he has received notice and has appeared
through counsel on 29.03.2001 and even on the date of receipt of notice, he has
come to know about the ex-parte decree dated 02.11.2000 and on 31.01.2002, he
has filed the condonation of delay application.
17. At this juncture, it is useful for this Court to make a significant
mention to the averment made by the revision petitioner/defendant (since
deceased) in the sworn statement in the chief examination, in I.A.No.99 of 2002
at paragraph 3, wherein he has mentioned that during 02.11.2000, he has been
working as a Teacher in Surlipatti and he used to go to his native place Madurai
once in three or four months and when the suit has come up for final hearing on
02.11.2000, his counsel has informed him to his residential address, but he has
not received the same and hence, he has not appeared for the hearing on
02.11.2000. The averment made by the revision petitioner/defendant (since
deceased) in his own affidavit in the chief examination in I.A.No.99 of 2002 at
paragraph 3 to the effect that during 02.11.2000, he has served in Surlipatti
and he used to come to Madurai once in three or four months, etc, is quite
contrary to the admissions made by him as P.W.1 (in cross-examination on
24.03.2003) to the effect that he does not remember as to whether he has
mentioned in the affidavit in I.A.No.99 of 2002 that he has been serving at
Surlipatti and before that, he has served at Thumbakundu etc, and before
04.11.2000, he has served at Thumbakundu and at that time, he used to go to
Madurai daily.
18. Therefore, the averment made by the revision petitioner/defendant
(since deceased) at paragraph 3 of the sworn affidavit in I.A.No.99 of 2002 to
the effect that he used to go to Madurai once in three or four months when he
has been serving at Surlipatti is not a correct statement and it is quite clear
that the petitioner has not come out with a genuine and bona fide
sufficient/good cause and this itself is quite sufficient reason to reject the
application, in the considered opinion of this Court.
19. Added further, even when the revision petitioner/defendant (since
deceased) has received the notice in E.P.No.22 of 2001 on 27.03.2001 and
appeared through the counsel on 29.03.2001, he has projected the condonation of
delay application only on 31.01.2002.
20. Be that as it may, even though this Court is quite aware of well
settled principle that a Court of law must ensure that the substantial justice
is to be delivered to the parties by adopting a liberal approach, yet on the
basis of the facts and circumstances of the present case and in view of the
incorrect averment made by the revision petitioner/defendant (since deceased) as
P.W.1 before the trial Court in I.A.No.99 of 2002 {as between the averment made
by him in paragraph 3 of the sworn statement in I.A.No.99 of 2002 and the
admission made by the revision petitioner/defendant (since deceased) in his
cross-examination on 24.03.2003 that before 04.11.2000, he has served at
Thumbakundu, he used to go to Madurai daily.}, this Court is unable to adopt a
liberal approach overriding technicalities and since the petitioner has not made
out a bona fide, genuine sufficient/good cause in his application in I.A.No.99
of 2002 and in his evidence as P.W.1 before the trial Court, this Court is
perforced to reject the I.A.No.99 of 2002 and on going through the order passed
by the trial Court in I.A.No.99 of 2002, the same is not tainted with any
illegality or material irregularity and resultantly, the Civil Revision Petition
is devoid of merits and viewed in that perspective, the Civil Revision Petition
fails.
21. In the result, this Civil Revision Petition is dismissed leaving the
parties to bear their own costs and the order in I.A.No.99 of 2002 in O.S.No.121
of 1996 dated 09.07.2003 passed by the learned Sub Judge, Periyakulam, is
affirmed by this Court for the reasons assigned in this Civil Revision Petition.
Consequently, the connected Miscellaneous Petition is dismissed.
rsb
To
The Subordinate Judge, Periyakulam.
COPY TO: THE SECTION OFFICER, VR SECTION,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.