This revision is directed against the order of the learned Principal Sub-Judge, Tindivanam in I.A.No.344 of 2008 in O.S.No.212 of 2000, dated 25.07.2011, dismissing the petition filed under Section 5 of the Limitation Act and declining to condone the delay of 1552 days in filing application to restore the suit, which was dismissed for default on 08.03.2004.
2. Brief facts are that the petitioners, who are plaintiffs have filed the suit for partition of suit properties into 7 shares and allot 4 shares in favour of them and for possession. All the respondents/defendants were remained ex parte in the suit and the suit was posted for ex parte evidence on 21.07.2002, 14.08.2002, 05.12.2002, 13.12.2002, 18.12.2002, 07.01.2003. Thereafter, the petitioners have filed I.A.No.28 of 2003 seeking to amend the suit schedule, wherein notice was issued to the respondents and the said petition was listed on several occasions for sending notice to the respondents and finally on 29.01.2004, the Court had directed the petitioners to take steps to send notice to the respondents on the correct address and adjourned to 19.02.2004. Since the petitioners failed to take steps on 19.02.2004, I.A.No.28 of 2003 came to be dismissed and the suit was adjourned to 08.03.2004 for taking ex parte evidence. Since the petitioners have failed to appear before the Court and depose, the suit was dismissed for default.
3. According to the petitioners, the first petitioner was looking after the suit for herself and on behalf of other petitioners. When the first petitioner contacted his counsel, he informed that he wrote two letters informing the date, but really, she had not received any letter from his counsel. Moreover, at the relevant point of time, the first petitioner was suffering from stomach ache, severe jaundice and was bedridden and she was taking continuous treatment. Since, the first petitioner was looking after the matter on behalf of other petitioners, the petitioners 2 to 4 were under the impression that the first petitioner will look after the suit. Later, the first petitioner contacted his counsel and filed the petition to restore the suit. There was a delay of 1552 days in filing the petition to restore the suit and the petitioners prayed for condoning the delay.
4. The fifth respondent opposed the petition contending that since the petitioners have failed to take steps, I.A.No.28 of 2003 was dismissed and also since the petitioners have failed to appear on 08.03.2004, the suit was dismissed for default. The petitioners were put to strict proof that two letter wrote by the counsel were not reached to them. It is not correct to state that at the relevant point of time the first petitioner was suffering from jaundice and the same were concocted for the purpose of filing of the petition. The petitioners have not interested in prosecuting the suit and in order to give trouble to the respondents, the petitioners have filed the petition to restore the suit with huge delay. The inordinate delay of 1552 days has not been properly explained and the petitioners particularly the first petitioner has to put to strict proof of the same. If the delay is condoned the respondents would be put to irreparable loss and damage and prayed for dismissal of the petition.
5. Observing that though the respondents remained ex parte in I.A.No.344 of 2008, the petitioners have not explained the delay to the satisfaction of the Court and finding that the petitioners have come with unclean hands, the learned Principal Subordinate Judge, dismissed the petition filed under Section 5 of the Limitation Act.
6. Challenging the impugned order, the learned counsel for the petitioners submitted that the trial Court ought to have seen that the petition under Section 5 of the Limitation Act is to be construed liberally and not rigidly. She would submit that the trial Court ought to have seen that the counsel had attempted to contact the petitioners, but delivery was never effected, for which no punishment should be effected on the innocent petitioners. In fact, the first petitioner, who was looking after the suit was also afflicted by jaundice and was incapable of taking efforts to contact his counsel for a prolonged period.
7. The learned counsel further submitted that the trial Court erred in not considering material facts, whilst having a greater obligation upon it, to administer justice and dismissed the suit despite the past actions of the first petitioner indicating that she had every intention to pursue the suit filed, as is evident from her continuous toil to serve the respondents. She would submit that the expression sufficient cause is to be elaborately construed to advance substantial justice. According to her, the reason assigned by the trial Court in dismissing the petition was incorrect and unbelievable and prayed for setting aside the order of the trial Court.
8. Submitting that absolutely no sufficient cause is forthcoming for the delay, the learned counsel for the respondents 3 to 5 contended that when the trial Court exercised its discretion declining to condone the delay and when the order is not shown to be perverse, the revisional Court cannot interfere with the order of the trial Court.
9. The points arose for consideration is whether the petitioners have satisfactorily explained the delay of 1552 days in filing petition to restore the suit and the trial Court was right in dismissing the petition.
10. It is settled law that sufficient cause must receive a liberal construction so as to advance substantial justice when no negligence, or inaction, or want of bona fide, is imputable to the applicant, the over-riding consideration being doing substantial justice. The Court should not lightly condone the delay in filing the application to restore the suit. Discretion is to be exercised likely any other judicial discretion with vigilance and circumspection. The true test is whether the petitioners have acted with due diligence.
11. In N.Balakrishnan v. M.Krishnamurthy, reported in 1998 (2) CTC 533: 1998 (7) SCC 123, the Hon'ble Supreme Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactic, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Hon'ble Supreme Court observed as follows :
9.It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be condonbale due to want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the First Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.
12. Court has to see whether sufficient cause is shown for the delay. What is or what is not 'sufficient cause' would depend upon varied and special circumstances of each case. To decide whether sufficient cause is shown or not, it is very undesirable to act upon precedents as every Judge has to deal with particular facts of each case.
13. In State of Haryana v. Chandra Mani and others, reported in 1996(II) CTC 109, the Hon'ble Supreme Court held thus:
11. ....... The expression sufficient cause should therefore, be considered with pragmatism in injustice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the causelaid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. ...... it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.
14. Under Section 5 of the Limitation Act, it is only sufficiency of the cause that matters and not the length and breadth of the delay. While dealing with the Section 5 application, the question of diligence or bona fides are to be considered.
15. In State of Kerala v. E.K.Kuriyipe, reported in 1981 (Supp) SCC 72, the Hon'ble Supreme Court held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case.
16. The petitioners have filed the suit being O.S.No.212 of 2000 for partition and separate possession. The suit property relates to a house. Case of the petitioners is that they are co-owners in the suit property and that they are entitled to 4/7 share. The learned counsel for the petitioners submitted that since the respondents 1 to 3 were neglecting to give share in the suit property and were trying to alienate the suit property to third parties, the petitioners feel that there was no possibility in enjoying the suit property jointly by the petitioners and the respondents and therefore, they have filed the suit for partition. In fact, in the suit, the respondents have failed to appear and file their written statement. It appears that in the petition to condone the delay also, as recorded by the trial Court, the respondents remained ex parte.
17. Insofar as the reason for non-appearance on 08.03.2004, the first petitioner has alleged that on or about 08.03.2004, she was suffering from jaundice and was bedridden. Therefore, she could not contact his counsel and give instructions to file petition to restore the suit. When the matter has been entrusted to the first petitioner, perhaps the petitioners 2 to 4 might not have been in the know of things and might have been under the bona fide impression that the first petitioner would take care of the matter. As a whole, the petitioners cannot be castigated as irresponsible litigants.
18. The learned counsel for the contesting respondents submitted that when the trial Court has exercised the discretion declining to condone the delay, unless it is shown to be manifestly perverse, the revisional Court would not interfere with the impugned order. The learned counsel would submit that there is no bona fide in the application and therefore, the delay cannot be condoned and hence, the trial Court has rightly declined to condone the delay and the same cannot be interfered with.
19. It is not possible to lay down as to what cause or matters would constitute sufficient cause under Section 5 of the Limitation Act. Those words should be liberally construed so as to advance substantial justice, when no negligence or inaction or want of bona fides is imputable to a party. The first petitioner has alleged that she was suffering from jaundice and that she could not attend the Court on 08.03.2004. The trial Court was not justified in disbelieving the same. The trial Court ought to have seen the claim made by the petitioners in the suit and the respondents have not defended the suit by filing written statement.
20. No presumption could be made in an application filed under Section 5 of the Limitation Act that the delay was occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay, as in any case, especially a partition suit, the litigant is the one who stands to lose the most as the case needs to be decided in the finality to provide him/her with any relief, it is he/she who runs a serious risk. Moreover, in the partition suit, till the suit property divided among the parties, the dispute in suit would not concluded and the Courts needed to take steps to dispose of the matter finally. Therefore, in my considered view, there is no proper exercise of discretion by the trial Court.
21. It is settled law that length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.
22. Generally delays in preferring application to condone the delay in filing the petition to restore the suit/set aside the ex parte decree are required to be condoned in the interest of justice, where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay. In the case on hand, as stated supra, the respondents have failed to prove that only with a view to drag on the proceedings and in order to give trouble to them, the petitioners have filed the petition. Moreover, the reasons for delay given by the petitioners are satisfactory.
23. 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, if the Court is 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.
24. The trial Court, instead taking note of the sufficient cause explained by the petitioners, particularly, the first petitioner, it has arrived at a conclusion that the petitioners have failed to prove each and every day delay. As observed above, the petitioners have shown sufficient cause for the delay in filing petition to restore the suit which was dismissed for default on 08.03.2004. Therefore, in the interest of justice and in the facts and circumstances of the case on hand, the order of the trial Court is liable to be set aside and petition seeking to condone the delay of 1552 days in filing petition to restore the suit stands allowed, however, subject to payment of cost to the respondent.
25. In the result, the Civil Revision Petition is allowed on condition that the petitioners shall pay costs of Rs.20,000/- (Rupees Twenty Thousand) to the learned counsel for the respondents within a period of three weeks from the date of receipt of a copy of this order. The trial Court is directed to number the restoration petition filed under Order IX, Rule 9 C.P.C. and pass orders within a period of one month thereafter by giving notice to both sides. On passing such order, the trial Court is directed to dispose of the suit within a period of three months thereafter.
22.02.2017 Note:Issue order copy on 28.09.2018 vs Index : Yes/No To The Principal Sub Court, Tindivanam.
M.V.MURALIDARAN, J.
vs C.R.P.(NPD) No.81 of 2012 22.02.2017