Civil Revision Petition is filed against the fair and decreetal order dated 24.02.2016 in E.P.No.71 of 2005 in O.S.No.282 of 1996 on the file of the Sub-Court, Nilgiris at Uthagamandalam.
2.C.M.P.No.20104 of 2016 is filed to condone the delay of 189 days in filing the CRP(NPD)SR.No.88625 of 2016.
3. The respondents as the plaintiffs filed a suit in O.S.No.282 of 1996 for delivery of possession and for damages for use and occupation. After contesting, the suit was decreed. The respondents filed a petition in E.P.No.71 of 2005 for delivery of possession. The petitioners herein have also filed a counter. The Executing Court allowed the petition and ordered delivery of possession. Thereafter, the respondents/decree holders filed E.A.No.56 of 2014 to permit the third decree holder to amend the schedule in the execution petition. That application was allowed. The petitioners preferred C.R.P.No.2511 of 2015 against unnumbered E.A.No. of 2015 and the same was dismissed by this Court on 07.01.2016. Delivery was ordered on 24.02.2016. But the petitioners have preferred C.R.P.No.604 of 2016 challenging the order dated 10.02.2016 made in E.P.No.71 of 2005 in O.S.No.282 of 1996.
4. Learned counsel for the petitioners would submit that due to oversight, the petitioners have not challenged the fair and decreetal order passed in E.P.No.71 of 2015, dated 24.02.2016, which is neither wilful nor wanton. Hence, she prays for condonation of delay of 189 days in preferring the revision.
5. Resisting the same, the learned counsel for the respondents would submit that the petitioners have already challenged the order passed by the Executing Court dated 10.02.2016 by way of filing C.R.P.No.604 of 2016. But the delivery has been ordered only on 24.02.2016. The petitioners kept quite all along and now they have come forward with the revision. She would further submit that the respondents filed a counter in C.R.P.No.604 of 2016 and brought to the notice of this Court that the delivery was ordered on 24.02.2016. Even then, the petitioners have not filed the application in time. Hence, there is no sufficient reason has been assigned for condonation of delay. Therefore, the reason assigned by the petitioners that due to oversight, they have not challenged the delivery order is not a ground for condonation of delay. Hence, she prays for dismissal of the petition.
6. Heard both sides.
7. On perusal of typed set of papers, it reveals that the respondents as the plaintiffs filed a suit for recovery of possession and mandatory injunction in respect of five items of suit property and also mandatory injunction directing the defendants to lay the roads indicated in the plans attached to the respective sales in favour of the plaintiffs to provide access to the suit property. That suit was decreed exparte, against which, the petitioners have filed the application and the same was dismissed. The petitioners also lost their case upto the Supreme Court. The Special Leave Petition preferred by the second petitioner before the Honourable Apex Court was dismissed on 02.01.2012. So the decree and judgment passed by the trial Court is final. The respondents/decree holders have also filed execution petition for delivery and that the delivery was ordered.
8. It is pertinent to note that on 10.02.2016, the petitioners filed Section 47 application, which was dismissed, against which, they preferred C.R.P.No.2511 of 2015 and the same was dismissed on 07.01.2016. The matter was posted on 10.02.2016 for production of copy of the order passed in C.R.P.No.2511 of 2015. On that day, copy of the order passed in C.R.P.No.2511 of 2015 has been produced and counsel for the petitioners sought time to vacate the property.
9. On 10.02.2016, the following order was passed: “10.02.2016:
To produce the copy of order. CRP order produced on petitioner by the respondent some time to vacate the property. Call on 24.02.2016. “
10. Challenging the order passed by the Executing Court dated 10.02.2016, the petitioners have come forward with C.R.P.No.604 of 2016. During pendency, on 24.02.2016, the following order was passed:
“24.02.2016:
To vacate the property. Petitioner counsel represents that the possession of the property not handed over to the Decree Holder. Respondent has failed to vacate the premises as per the petition dated 10.02.2016 filed by them. In the result, Order 21 Rule 35 petition is allowed. Delivery of possession call on 17.03.2016.”
11. Aggrieved over the above said order, the present revision is preferred, since it was not filed in time, the petitioners have come forward with Section 5 application with the delay of 189 days in preferring the revision.
12. As per the dictum of the Apex Court reported in AIR 1998 SC 3222 (N.Balakrishnan v. M.Krishnamurthy), it was specifically held that if the length of delay is immaterial, sufficient cause for condonation of delay has to be explained. It is appropriate to extract para-9 to 11, which read as follows:
"9. .. .. Length of delay is no matter, acceptability of the explanation is the only criterian. 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. 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.
10. The reason for such a different stance is thus:The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. .. .. "
13. In the case on hand, in para-17 of the affidavit filed in support of the petition in C.M.P.No.20104 of 2016, it is stated as follows:
“17.I submit that CRP.No.604 of 2016 was filed immediately and the same is being contested to date. By an oversight the order dated 24.02.2016 was not challenged. The failure to challenge this order is not willful nor wanton but only on account of an oversight. I submit that unless the delay of 189 days in filing the revision is not condoned I will be put to irreparable loss and great hardship. Ends of Justice therefore requires that this Hon'ble Court may be pleased to condone the delay of 189 days in filing the above Civil Revision Petition and thus render justice.”
It is seen from the affidavit that the petitioners due to oversight, failed to challenge the order dated 24.02.2016, which is neither wilful nor wanton. But the above reason is not sufficient to condone the delay.
14. In the judgment of the Apex Court reported in 2011 (4) SCC 363 (Lanka Venkateswarlu (Dead), rep. by legal heirs) Vs. State of Andhra Pradesh and others), in para-19, 23, 28 and 29, it was held as follows:
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in Collector, Land Acquisition v. Katiji (1987) 2 SCC 107.
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23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in Balwant Singh v. Jagdish Singh (2010) 8 SCC 685 as follows:- (SCC p.696, paras 25-26) "25. We may state that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise (sic a lis). These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly"
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28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.
29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers."
It is well settled dictum of the Apex Court that for condonation of delay, the discretion has to be exercised in a systematic manner informed by reason and justice must be done to both parties. Further, the condonation of delay is only a discretion that too judicial discretion and while exercising the judicial discretion, the Court should consider the loss caused to the opposite party.
15. It is pertinent to note that the respondents have filed a counter in C.R.P.No.604 of 2016 and through which, they have brought to the notice of this Court that C.R.P.No.604 of 2016 is not maintainable, since delivery has already been ordered on 24.02.2016 and that has been filed in April 2016. But the petitioners kept quite all along and now they have come forward with the condonation of delay of 189 days, with an intention to drag on the proceedings. As already discussed above, exparte decree was passed and the petitioners had also agitated the same up to the Apex Court, which ended in failure. Now the petitioners followed the delay in tactics by agitating that the description of the property is not correct. So the petitioners must be vigilant to challenge the order dated 24.02.2016.
16. As already stated supra that the reason mentioned in para- 17 of the affidavit filed in support of C.M.P.No.20104 of 2016 is not a sufficient reason for condonation of delay. Therefore, applying the dictum laid down in Balakrishnan and Lanka Venkateshwarlu cases, I am of the view that the delay of 189 days has not been properly explained by the petitioners. Per contra, the petitioners with a view to prevent the decree holders to enjoy the fruits of the decree then and there, have filed several applications. Hence, I am not inclined to condone the delay. Accordingly, C.M.P.No.20104 of 2016 stands dismissed and consequently, C.R.P.(NPD)SR.No.88625 of 2016 is rejected. No costs.
03.01.2017 kj Index:Yes/No To The Sub-Court, Nilgiris at Uthagamandalam.
R.MALA,J.
Kj
CRP(NPD)SR.No.88625 of 2016 and C.M.P.No.20104 of 2016
03.01.2017
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