The revision petitioner/defendant has filed this present civil revision petition as against the order dated 11.11.2009 in I.A.No.785 of 2009 in O.S.No.398 of 2007 passed by the learned District Munsif, Thiruvottriyur in dismissing the application filed under Section 5 of the Limitation Act by him praying to condone the delay of 324 days in filing an application to set aside the exparte decree dated 5.9.2008.
2. The trial Court, while passing orders in I.A.No.785 of 2009 has among other things observed that 'the conduct of the petitioner lacks bonafide and the petitioner has acted in a lethargic and negligent manner for which the respondent could not be made to suffer and resultantly dismissed the application without costs'.
3. According to the learned Senior counsel for the petitioner , the impugned order of the trial Court in I.A.No.785 of 2009 in dismissing the application to condone the delay of 324 days is against the weight of the facts and settled law and as a matter of fact, the trial Court ought to have appreciated the fact that the petitioner has not been informed by its counsel, the details of the Court proceedings on a day to day basis and the petitioner along with the application to condone the delay to set aside the exparte decree has filed a detailed written statement and this shows that the petitioner has filed the application with all bonafides but unfortunately this aspect of the matter has not been appreciated by the trial Court in a proper and real perspective and indeed the petitioner has an excellent case on merit and the current lease deed is upto the year 2010 beginning from 1.1.1990 and the petitioner being a public sector undertaking should not be penalised and make to suffer the loss of substantial justice due to no fault of it and in any event, the trial Court should have applied its judicial mind in allowing the application of condonation of delay and since the order of the trial Court suffers from serious material irregularity and patent illegality and the same needs to be set aside by this court sitting in revision and therefore prays for allowing the revision petition in furtherance substantial cause of justice .
4. Per contra, the learned counsel for the respondent/plaintiff submits that the petitioner/defendant has not filed the written statement on 8.8.2008 and finally he has been called absent and set exparte and the suit has been posted to 5.9.2008 for exparte evidence and on 5.9.2008, the suit has been decreed and the respondent/decree holder preferred execution petition in E.P.No.9 of 2009 in which notice has been served on the petitioner/defendant and from Exs R1 to R3, it is quite evident that the respondent/plaintiff has made all genuine efforts to bring it to the notice of the petitioner/defendant about the exparte decree even before filing of the execution petition and the petitioner/defendant even after coming to know about the exparte decree on 18.3.2009,20.4.2009 and 30.6.2009 has come forward to project I.A.No.785 of 2009 only on 25.8.2009 which clearly exhibits the callous attitude of the petitioner/defendant and since the delay that has occurred is not due to bonafide reason, the same cannot be condoned in the eye of law and in fact the trial Court has rightly observed that the petitioner/defendant has acted in a lethargic and negligent manner for which the respondent could not be made to suffer and therefore prays for dismissal of the civil revision petition.
5. The learned counsel for the respondent/plaintiff cites the decision of the Hon'ble Supreme Court in Binod Bihari Singh-v- Union of India(1993(1) Supreme Court Cases, 572) wherein it is held that 'Appellant should not be encouraged to get a premium on his falsehood etc.,. He also relies on the decision in Muthusamy-Indian Overseas Bank, Alangulam, through its Branch Manager(1998(1) CTC 348 at 353) wherein it is held as follows:
"In the light of the observation made by the Supreme Court that the Court should not encourage the person by condoning delay when he came with the false plea to get rid of the bar of limitation as laid down in Binod Bihari -v- Union of India(1993 AIR SCW 475:1993(1) SCC,572 the petitioner who has not come with bona fide reasons to condone the delay, is not entitled to be shown any indulgence'.
6. Added further, he cites the decision of this Court reported in Sundar Gnanaolivuu rep by his power of Attorney Agent Mr.Rukmini-v- Rajendran Gnanavolivu rep by its Power of Attorney Agent Veina Gnanavolivu(2003(1) L.W.585) wherein it is observed that 'applicant has not come to Court with clean hands and averments in the affidavit are totally devoid of truth and lacking in bona fides' and therefore, the case falls within the exception to the rule of liberal approach and does not deserve the liberal approach formula in matters relating to condonation of delay'.
7. The learned counsel for the respondent seeks in aid of the decision reported in Velu Gounder-v-Dhanasekaran(2009(3) TLNJ 529(Civil) wherein it is held that' as counsel was engaged to represent the case, it is duty of parties to know hearing dates and to inform correct address to their advocate.
8. Also the learned counsel for the respondent brings it to the notice of this Court to the decision reported in Indian Oil Corporation Ltd.,Madras-v- Mrs. Sakuntala Ganapathy Rao,Proprietor, Modern Home Agencies (1998(III)CTC 170) wherein it is held that" the word 'sufficient cause' cannot be construed liberally because the party in default is Government of institution and the Government or Institution should give satisfactory explanation for delay in approaching the Court and 'sufficient cause' must be cause beyond control of party in default etc.'
9.Continuing further, the learned counsel for the respondent relies on the decision reported in N.Kathirvel-v-N.Kalimuthu Gounder Maruthacham(2009(4) TLNJ 397(Civil) wherein it is held that' the reasons mentioned in para 2 of the affidavit would not constitute sufficient cause and it is not the length of delay but the bonafides of the party which determines sufficient cause'.
10. More over, the learned counsel for the respondent cites the decision reported in Sivakumar-R.Sengodan(2007(5) 718) wherein it is held that' In a case of condonation of delay, the Court must take a liberal view, but at the same time, the Court should not do so on exercising equity and Court should not excuse the delay when there is no sufficient and convincing reasons, otherwise, it would be nothing but extension of limitation what is not available to a party under an enactment'.
11. He also relies the decision reported in Jayaprakash-v- Kamala(2005(2) L.W.218) wherein it is held thus:
"It is seen from the evidence of P.W.1 that the petitioners were aware of passing of the decree much prior to the filing of the present application. After going through the reasons stated in the affidavit and the evidence of P.W.1 , I am satisfied that the petitioners have not shown sufficient cause for condoning the delay in preferring the petition to set aside the exparte decree. As rightly observed by the learned District Munsif, the exparte decree cannot be set aside in a casual manner more so, when sufficient cause is not established by the party.'
12. At this juncture, the learned senior counsel for the petitioner submits that the petitioner has filed the written statement along with the condonation of delay application and it is the case of the respondent/plaintiff in the suit that the petitioner/defendant has committed a breach of terms of tenancy in regard to the payment of rent, on 2.7.2007,the tenancy has been determined as per the terms of lease and on 31.7.2007, when the respondent/plaintiff has determined the tenancy in favour of the petitioner/defendant and the same has been acknowledged by the petitioner on 1.8.2007 and since the petitioner/defendant has switched over to E.C.System , there has been a little confusion in regard to the payment of rent and in fact the petitioner/defendant in its written statement has inter alia state that the petitioner/defendant has paid all rentals to the respondent/plaintiff through ECS and this has been made mention of in the letter dated 8.8.2007 of the petitioner/defendant and also the said letter high lighted the fact that the lease rentals as per the terms will have to be paid at Rs.3,000/- per month(Rs.9,000/- per quarter) till 31.8.2005 and from 1.9.2005, the lease rentals would stand revised to Rs.3,500/- per month and the rentals for the quarter beginning July 2005 has been paid by Cheque No.096123 dated 1.7.2005 for Rs.9,000/- which was encashed by the respondent/plaintiff on 10.8.2005 and and instead of paying Rs.7,500/- for the quarter beginning September 2005 (differential amount of Rs.500/- for September 2005,Rs.3500/- per month for the months of October/November 2005) the petitioner/defendant has paid Rs.10,500/- through Cheque No.105390 dated 1.9.2005 and the same has been encashed on 18.10.2005 and in the net result, there has been an excess payment of Rs.3,000/- by the petitioner/defendant to the respondent/plaintiff which has been refunded by the respondent/plaintiff, after the receipt of the petitioner's/defendant's letter dated 8.8.2007 etc., and more over the petitioner/defendant through its letter dated 8.8.2007 had admitted that due to technical and unavoidable reasons(System error) the rentals for the quarter beginning June 2007 could not be effected through ECS in time and the matter has been taken up with the Bankers at Mumbai and effected an amount of Rs.10,500/- to the credit of the respondent/plaintiff S.B.Account through ECS during August 2007 for the quarter beginning June 2007 and therefore as on date, there is no arrears of lease rentals and the lease rentals have been deposited on the account of the respondent/plaintiff without any default and under these circumstances, the petitioner/defendant must be given an opportunity to contest the case on merits.
13. In this connection, it is useful to refer to the averment made in I.A.No.785 of 2009 filed by the petitioner/defendant wherein it is mentioned that 'when the matter has been posted for filing counter and written statement have been filed and that the matter has been dismissed for non appearance of the petitioner and that the case has been taken care of by the counsel at Thiruvottiyur and only on receipt of the Execution petition summon, the petitioner realised the status of the case that it has been set exparte and therefore, there is a delay of 311 days in filing the set aside petition.
14. However, in the counter filed by the respondent/plaintiff, it is specifically mentioned that the petitioner has failed to appear even on 8.8.2008 and the counsel for the petitioner reported ' no instructions' and therefore, the petitioner has been set exparte on 8.8.2008 and the suit has been posted to 5.9.2008 for exparte evidence and since there has been no representation on behalf of the petitioner/defendant on 5.9.2008, an exparte decree has been passed after P.W.1 has been examined and Exs P1 to P10 have been marked and in fact by lawyer's notice dated 18.3.2009 acknowledged by the petitioner/defendant on 19.3.2009, the respondent/plaintiff has called upon the petitioner/defendant to comply with the exparte decree dated 5.9.2008 but the petitioner/defendant has not acted even after such notice and therefore the petitioner/defendant by means of reply dated 30.6.2009 has been informed of exparte decree dated 5.9.2008 and the petitioner's remittance has been towards damages for wrongful use and occupation and not rent and further the conduct of the petitioner/defendant is in violation of the ingredients of Order 8 Rule 1 of CPC and the rent paid by the petitioner/defendant is no where near the prevailing market rate and totally disproportionate to the value of the property and the petitioner is in occupation of the respondent's valuable property of an extent of 15,000 sq.ft for 20 years on payment of a pittance and if any indulgence is shown to the petitioner/defendant then it will amount to paying premium for indifference and indiscipline and disrespect to law and Courts and therefore has prayed for dismissal of the application with costs.
15. In the notice Ex R1 dated 18.3.2009 addressed by the respondent's counsel to the petitioner, the address is mentioned as " The Managing Director,Bharat Petroleum Corporation Ltd, 6H,11th Main Road, No.1, Ranganathan Garden, Anna Nagar, Chennai -600 040. However, the respondent/plaintiff in his letter Ex R2 dated 20.4.2009 addressed to the Chief General Manager of the petitioner Company has mentioned the address Smt.P.Rajeswari, Chief General Manager, Bharath Petroleum Corporation Ltd,Anna Nagar, Chennai. In Ex R3 letter dated 30.6.2009, the respondent/plaintiff has given address of the petitioner/defendant as " Bharath Petroleum Corporation Ltd., No.1, Ranganathan Gardens, Anna Nagar, Chennai-600 040'. Therefore, the communication of R1 and R3, the respondent/plaintiff has given the address of the petitioner/defendant as 'No.1, Ranganathan Gardent, Anna Nagar, Chennai-600 040 and in Ex R2, the respondent/plaintiff addressed his letter to one Smt.P.Rajeswari, Chief General Manager Bharath Petroleum Corporation Ltd, Anna Nagar, Chennai.
16. It is to be borne in mind that the expression of 'sufficient cause' is an elastic one to be applied in a meaningful and purposeful manner by a Court of Law to subserve the ends of justice, in the considered opinion of this Court. By and large, the litigant /Corporation does not stand to gain by projecting an application belatedly. Refusing to condone delay means that a meritorious cases will be thrown out at the nascent stage and the cause of justice being defeated. As against this, the maximum thing that can happen when the delay is condoned is that a cause will be decided on merits, of course after hearing the parties. In short, a Court of Law cannot adopt a pedantic approach, but it shall adopt a rational common sense, pragmatic approach, while dealing with the condonation of delay application. If a litigant resorts to a delay in fact he runs a serious risk. More over, there is no assumption or presumption that the delay has occasioned wantonly or on account of malafides etc. Also that when the substantial justice and technical considerations are pitted against each other and cause of substantial justice deserves to be preferred for, the other side cannot claim to have vested right injustice being done. It is to be noted that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removal of injustice and it is expected to do so.
17. As far as the present case is concerned, even though Exs R1 and R3 have been sent to Anna Nagar address of the petitioner/defendant Corporation by the respondent/plaintiff, it is quite clear that the petitioner/defendant has not acted diligently. Only in Ex R2 letter dated 20.4.2009 of respondent/plaintiff, the name of the Chief General Manager of the petitioner's Corporation at Anna Nagar Office, Chennai is mentioned as Smt.P.Rajeswari. Even after the said letter Ex R2, the petitioner/defendant has not acted swiftly and has taken positive steps to set aside the exparte decree dated 5.9.2008. Thereafter, only on 25.8.2009, I.A.No.785 of 2009 has been filed by the petitioner/defendant praying permission of the trial Court to condone the delay of 324 days in filing an application to set aside the exparte decree.
18. One thing is clear on the facts presented before this Court that the petitioner/defendant has filed I.A.No.785 of 2009 after delay of 324 days even though Exs R1 to R3 have been addressed to it by the the respondent/plaintiff. Therefore, the petitioner/defendant ought to have been diligent in filing the written statement before the trial Court when the matter has been adjourned from time to time and lastly when the matter has been posted for filing written statement on 8.8.2008 with an observation that 'no further adjournment will be granted ' and only on 5.9.2008, the trial Court has passed an Exparte Decree, after taking due evidence of P.W.1 and marking Exs P1 to P10.
19. Be that as it may, even though the petitioner/defendant has not been quite diligent in prosecuting the matter before the trial Court, this Court on taking note of the fact that the respondent/plaintiff has filed the main suit before the trial Court seeking a relief of direction, directing the defendant to vacate and deliver the vacant possession of the suit property to the plaintiff on the ground that the petitioner/defendant has committed breach of terms of lease etc and since the petitioner/defendant has come up with the plea that there has been some confusion in regard to the payment of rent , when the petitioner/defendant has switched over to ECS and further when the petitioner pleads that there is no arrears of lease rentals etc and apart from the above, one cannot ignore an important fact that the petitioner/defendant has taken a plea that the lease terms expires only in the year 2010, this Court, on the basis of the facts and circumstances of the case in a cumulative fashion which float on the surface is of the considered view that an opportunity must be given to the petitioner/defendant to contest the main case on merits in our processual system of jurisprudence and therefore by taking a justice oriented approach and also this Court, by adopting a liberal approach in a pragmatic and common sense manner (and not resorting to a pedantic approach) allows this civil revision petition to prevent an aberration of justice and to promote substantial cause of justice of course by directing the petitioner/defendant to pay costs of Rs.5000/- to the respondent/plaintiff to be paid directly on or before 5.1.2010 failing which it made clear that the revision petition shall stand automatically dismissed without any further reference to this Court.
20. In the result, this revision petition is allowed and the order of the trial Court in I.A.No.785 of 2009 is set aside by this Court for the reasons assigned in this revision. The revision petitioner/defendant is directed to pay a sum of Rs.5,000/-(Rupees Five Thousand Only) as costs to the learned counsel for the respondent/plaintiff on or before 05.01.2010 failing which it is made clear that the revision petition shall stand dismissed automatically without any further reference. Since in the main suit, the petitioner/defendant has filed written statement, the trial Court is directed to frame necessary issues and by providing due opportunity to both parties to produce oral and documentary evidence, shall dispose of the main suit within a period of four months from the date of receipt of a copy of this order and to report compliance to this Court without fail. Consequently, connected M.P.Nos.1 & 2 of 2009 are closed.
19-12-2009 Index:Yes Internet:Yes sg To the District Munsif, Tiruvottiyur M.VENUGOPAL,J sg order in CRP.NPD.NO.3796/2009 19-12-2009 PRE DELIVERY ORDER IN CRP(NPD) No.3796 of 2009 To The Hon'ble Mr.Justice M.VENUGOPAL Most respectfully submitted P.A.