The petitioner has filed this Miscellaneous Petition under Section 5 of the Limitation Act praying to condone the purported delay of 116 days in preferring the Civil Revision Petition in S.R.No.2871 of 2008.
2. In the affidavit filed by the petitioner in M.P.No.2 of 2009 it is averred that in the preamble of the present civil revision petition it has been categorically mentioned that by virtue of liberty granted by this Court in C.R.P.No.3010 of 2008 on 30.12.2008 during Christmas vacation and this Civil revision petition has been filed on 09.01.2009 itself, when the alleged delay of 116 days does not arise and if the civil revision petition has been filed without liberty being granted then the 116 days delay will arise and this miscellaneous petition has been filed to avoid further delay by the examiners in passing the above civil revision petition to satisfy the requirement of the examiners and therefore, the said delay of 116 days may be ordered to be condoned by this Court in regard to the filing of the civil revision petition.
3. In the counter filed by the first respondent it is inter alia mentioned that the allegations and averments made in the affidavit in M.P.No.2 of 2009 are untrue and moreover, the second and third respondents have borrowed a sum of Rs.One lakh on the security of the property bearing Door No.12, Bazaar Street, Royapuram, Chennai-13, and executed a registered mortgage deed in his favour on 2.08.1991 at SRO Royapuram, Document No.1498 of 1991 and they have agreed to pay an interest at the rate of 24% per annum and that when they failed to pay the mortgage amount after legal notice dated 24.11.1992, the property has been brought on auction on sale and that the second and third respondents filed redemption suit No.663 of 1993 on 21.01.1993 and they obtained stay before the Learned XV Assistant City Civil Judge, Chennai, on the ground that they borrowed only Rs.47,000/- and not Rs.1,00,000/- and further that the second respondent has sent a letter on 22.09.1995 stating that they have borrowed Rs.One lakh and the suit property has been sold to the petitioner and she has directed the petitioner to discharge the mortgage debt of Rs.One lakh along with the accrued interest thereto and at that point of time the first respondent has come to know that the petitioner has purchased the mortgage property without permission of the Court by means of registered document no.216 of 1993 and without disclosing his purchase the petitioner has been conducting the suit on behalf of the second and third respondents, even though the counsels are on record after receiving the letter from the second respondent, he has filed I.A.No.14938 of 1995 in O.S.No.663 of 1993 before the Learned XV Assistant City Civil Judge, Chennai, praying for the dismissal of suit on the ground that the respondents 2 and 3 have admitted the mortgage debt, by giving a go-by to the prayer of the suit and two and half years later the petitioner has filed numerous Interlocutory Appications including I.A.No.16111 of 1995 to implead him as plaintiff and I.A.No.3200 of 1996 for permitting him as third plaintiff to continue the O.S.no.663 of 1993 since he purchased the mortgage property on 05.02.1993 when the suit has been pending and the redemption suit as well as all the I.A's filed by the petitioner have been dismissed on 18.01.2006 and allowed the first respondent's I.A.No.14938 of 1995 and further a finding has been given that the petitioner is not a bona fide purchaser of the mortgage property etc.
4. Continuing further, the first respondent has also averred that he has filed O.S.No.7427 of 2000 in November 2000 for the recovery of the mortgage amount, with interest and costs and the second and third respondents have filed written statement admitting the plaint averments and stated that they sold the mortgage property in favour of the petitioner on 05.02.1993 and he is in possession and he alone is responsible for all costs and expenses including the mortgage debt and the suit is pending before the III Fast Track Court, Chennai, and in spite of the mortgage suit is posted in the list of November 2003 the petitioner is protracting the proceeding by filing number of applications including filing Tr.O.P.No.257 of 2007, CRP. No.3010 of 2008 and now the present CRP.S.R.No.2871 of 2009 etc.
5. That apart this Court has dismissed the C.R.P (PD) No.3010 of 2008 on 30.12.2008 and this Court has observed that the petitioner can canvas the orders passed by the Principal Judge in Tr.O.P No.257 of 2007 in the manner known to law if so advised, before the appropriate forum and the petitioner cannot escape 116 days in regard to the condonation of delay and the petitioner has to explain each and every days delay properly as per Section 5 of the Limitation Act and furthermore, the petitioner is a practicing lawyer and that he has filed the revision petition earlier against the order passed in Tr.O.P.No.257 of 2007 instead of filing CRP (PD) No.3010 of 2008, then he might have avoided the delay and that the petitioners only intention is to delay and to protract the proceedings before the trial Court and in fact, the petitioner has to cross-examine him before the trial Court which has been posted on 10.11.2009 and the matter is at par at stage, and the expression "in the manner known to law" is nothing but the procedure to be followed as per this Court and the petitioner cannot put the blame on the High Court Staff and escape from the delay of 116 days, without explaining justifiable reasons thereto and therefore, has prayed for dismissal of application with costs.
6. At this juncture, it is pertinent to point out that this Court, while dismissing the CRP (PD) No.3010 of 2008 dated 30.12.2008 among other things has observed that "liberty is given to the revision petitioner to canvas the order passed by the Principal Judge in Tr.O.P No.257 of 2007 in the manner known to law if so advised, before the appropriate forum and it is open to petitioner to raise all factual and legal contentions including the citing of the decision in Maruti Clean Coal and Power Ltd. vs. B.L.Wadhere and others 2008 2 SCC 585 in accordance with law".
7. It is to be noted that the petitioner ought to have filed the revision petition earlier against the order dated 03.06.2008 in Tr.O.P.No.257 of 2007 instead of preferring the CRP (NPD) No.3010 of 2008. Be that as it may, it comes to be known that in CRP (PD) No.3010 of 2008 this Court has granted liberty to the revision petitioner to canvas the orders passed by the Principal Judge in Tr.O.P.No.257 of 2007 in the manner known to law if so advised before the appropriate forum.
8. Now, the petitioner has preferred the civil revision petition before this Court to set aside the order dated 03.06.2008 in Tr.O.P.No.257 of 2007 passed by the Learned Principal City Civil Court Judge, Chennai and to transfer O.S.No.7427 of 2007 on the file of III Fast Track Court, Chennai for joint trial along with O.P.No.586 of 2005 on the file of the Special Court under Prohibition of Charging Exorbitant Interest Act. While preferring the present civil revision petition there as occasioned a delay of 116 days and the petitioner has filed the miscellaneous petition to condone the same.
9. The main contention of the learned counsel for the petitioner is that this Court in CRP (PD) No.3010 of 2008 has granted liberty to the petitioner to canvas the orders passed by the Learned Principal City Civil Court Judge in Tr.O.P.No.257 of 2007 in the manner known to law etc., and therefore, really speaking by preferring the present civil revision petition there is no delay and the view taken by the office that the miscellaneous petition is to be filed in regard to the purported condonation of delay of 116 days is not correct but however, the petitioner has preferred this miscellaneous petition to avoid further delay by the examiners in praying the civil revision petition and in any event prays for condonation of delay of 116 days in preferring the civil revision petition.
10. When this Court has granted liberty to the revision petitioner in CRP (PD) No.3010 of 2008 to canvas the orders canvas the orders passed by the Principal Judge in Tr.O.P.No.257 of 2007 in the manner known to law if so advised before the appropriate forum etc., it means that the revision petitioner has to act within the parameters of Law and therefore, it is not correct on the part of the petitioner to contend that no delay has occurred while filing the present civil revision petition. Per Contra, it is quite evident that there has occasioned a delay of 116 days on the part of the petitioner in filing the present civil revision petition.
11. Inasmuch as, the term "sufficient cause" is elastic enough to apply the legal principle in a meaningful manner to subserve the ends of justice, this Court by taking a liberal and pragmatic view and not adopting a pedantic approach but to do substantial justice for deciding the main cause on merits condones the delay 116 days in preferring the civil revision petition to prevent an aberration of justice and accordingly allows the miscellaneous petition.
In the result, the M.P.No.2 of 2009 is allowed without costs.
13.11.2009 Index: Yes/No Internet:Yes/No prm M.VENUGOPAL, J.
prm Pre-delivery order in M.P.No.2 of 2009 in C.R.P S.R.No.2871 of 2009 13.11.2009