BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD)MD.No.1498 of 2007 and M.P(MD)No.1 of 2007 Poonkodi ... Petitioner/Petitioner/Defendant Vs. Subramania Chettiar ... Respondent/Respondent/Plaintiff Prayer Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the fair and decreetal order of the learned Subordinate Judge, Kulithalai, dated 15.06.2007 in I.A.No.184 of 2006 in O.S.No.72 of 2001. !For Petitioner ... Mr.G.Sridharan ^For Respondent ... Mr.K.Guhan for M/s.Krishnaveni * * * * * :ORDER
The civil revision petitioner/defendant has filed this revision petition
as against the order dated 15.06.2007 in I.A.No.184 of 2006 in O.S.No.72 of 2001
passed by the learned Subordinate Judge, Kulithalai, in dismissing the
application filed by the revision petitioner under Section 5 of the Limitation
Act, praying for condonation of delay of 1199 days in filing the petition to set
aside the ex-parte decree.
2. The trial Court while dismissing the I.A.No.184 of 2006 has opined that
the reasons ascribed by the revision petitioner in her affidavit cannot be
accepted and resultantly, dismissed the application without costs.
3. Assailing the order of the trial Court passed in I.A.No.184 of 2006,
the learned Counsel for the revision petitioner contends that the trial Court
has committed an error in dismissing the application on the ground that the
revision petitioner has been careless and further, has not followed up the
matter with one Vadivel, etc. and that she has been negligent in conducting the
proceedings and moreover, the trial Court should have seen that the
respondent/plaintiff has obtained a decree for the entirety to the first item
of the suit property fraudulently and even contrary to the tenure of the alleged
agreement to sell and moreover, the trial Court has lost sight of an important
fact that a decree has been obtained by the respondent/plaintiff for the entire
first item and half share in item Nos.2 and 3 and as a matter of fact, the said
Vadivel is the husband of the revision petitioner’s cousin and that borrowing
has been made by him and only in that connection, the revision petitioner has
signed and handed over the blank papers and hence, she trusted the said Vadivel
and she also further bonafidely believed that assurance of the said Vadivel and
that the suit will not be prosecuted and that the said Vadivel has expired and
only when the revision petitioner received notice in the E.P., she contacted
Susheela, who is the cousin of the revision petitioner who informed her that the
entire borrowings have been repaid only by the respondent/plaintiff and in
short, these facts have not been taken note of by the trial Court while passing
orders in I.A.No.184 of 2006 and this has resulted in miscarriage of justice and
consequently, prays for allowing the Civil Revision Petition in furtherance of
substantial cause of justice.
4. Per contra, the learned Counsel for the respondent/plaintiff submits
that the order of the trial Court in dismissing the I.A.No.184 of 2006, is
correct in law and the revision petitioner has not made out a case for allowing
the I.A.No.184 of 2006 and the petitioner has not explained the valid reasons
for the delay of 1197 days and it is the case of the respondent/plaintiff that
the defendant is executed another sale agreement with the respondent/plaintiff
and the respondent/plaintiff consequently, has filed a suit against her and that
the revision petitioner/defendant appeared through her Counsel and she
deliberately allowed the suit to be decreed as ex-parte on 23.07.2003 and in
pursuance of the ex-parte decree obtained by the respondent, etc. E.P.No.13 of
2006 has been filed and after long period of more than three and half years, the
revision petitioner has wilfully and deliberately filed the said I.A with a view
to procrastinate the entire proceedings and therefore, prays for dismissing the
civil revision petition.
5. In regard to the condonation of delay application filed under Section 5
of the Limitation Act, this Court is of the view that a pedantie approach should
not be made by the Court of law and the words ‘sufficient cause’ will have to be
given a liberal view and in that perspective, as a matter of prudence, the delay
of 1197 days will have necessarily to be condoned. In this connection, it is
relevant to point out that by and large, a litigant will not stand to benefit by
projecting an application late and refusing to condone the delay, may result in
meritorious matter being thrown out at a threshold and cause of justice being
defeated.
6. As against this, the maximum thing that can happen is that a cause will
be decided on merits after providing opportunities to parties, of course, after
hearing them. In fact, a Court of law has to adopt a pragmatic approach. No
wonder, when substantial justice and technical consideration are pitted against
each other, then the cause of substantial justice deserves to be preferred for
the other side cannot claim any vested right in injustice being done, because of
non-deliberate delay.
7. It is apt to point out that judiciary is respected not on account of
its power to legalise injustice on technical grounds, because it is capable of
removing injustice and is expected to do so.
8. In the instant case is concerned, this Court opines that the term
‘sufficient cause’ will have to be viewed liberally and taking a liberal view in
the matter, this Court without going into the merits of the case is satisfied
with the reasons furnished in I.A.No.184 of 2006 in O.S.No.72 of 2001 on the
file of the learned Subordinate Judge, Kulithalai, for the condonation of delay
of 1197 days and allows this Civil Revision Petition with a direction that the
civil revision petitioner shall pay a sum of Rs.3,000/- (Rupees Three Thousand
only) as costs directly to the respondent/plaintiff or to his Counsel, within a
period of three weeks from the date of receipt of a copy of this order, failing
which this petition stands dismissed automatically without any further
reference. The parties are to bear their own costs. Since the suit is of the
year 2001 and the pleadings have been completed in the case, this Court directs
the trial Court to frame necessary issues and to dispose of the main suit within
a period of three months thereon and to report compliance to this Court without
fail and the parties concerned are directed to lend their co-operation to the
trial Court in regard to the completion of the suit proceedings. Resultantly,
the connected Miscellaneous Petition is closed.
rsb
To
1. The Subordinate Judge, Kulithalai.
2.The Sub Assistant Registrar (Judicial),
Madurai Bench of Madras High Court, Madurai,
to watch and report.