The petitioner filed the suit in forma peuperis before the Sub Court, Thiruvallur. The said suit was taken on file in O.S.No.59 of 1987. This is a suit for partition. The learned Sub Judge, Tiruvallur dismissed the suit on 14.07.1992. She preferred an appeal before the learned Principal District Judge, Chengalpattu alongwith an application under Section 5 of the Limitation Act to condone the delay of twenty two (22) days in filing the appeal in I.A.No.15 of 1993. The said petition was dismissed for default on 19.02.1993 for non-payment of batta.
2.Thereafter, she filed an application in I.A.No.217 of 1997 under Section 5 of the Limitation Act to restore I.A.No.15 of 1993 to condone the delay of 1464 days in filing the petition for restoration of I.A.No.15 of 1993.
3.In the affidavit, the petitioner has alleged that she engaged Mr.Giribabu, Advocate, Chengalpattu. Since he died, the matter was not represented before the Court and hence it was dismissed on 19.2.1993. Further, she came to know about the death of her counsel only recently, that he died long back, that she came to know only one week back and engaged her present counsel and verified the matter and that from the date of knowledge, she has filed the petition and hence the delay may be condoned.
4.In the counter filed by the respondents, the above said allegations have been controverted. It is further stated that the petitioner has not alleged in her affidavit any sufficient cause for her non-appearance on 19.2.1997and the reasons are untrue and untenable.
5.The learned Principal District Judge, Chengalpattu dismissed the application by observing that scanning of affidavit and oral evidence of P.W.1 does not make out either sufficient reason to condone the delay or any prima facie case that the petitioner was prevented from filing the appeal and that for want of sufficient reason in not preferring the petition within the time to restore the petitions which were dismissed for default, the delay cannot be condoned.
6.The learned counsel for the petitioner Mr.S.Udhayakumar would submit that since the counsel on record for the petitioner earlier died and the fact was not brought to the knowledge of the petitioner and she came to know only one week prior to the filing of the application, that she is an illiterate and that she had no intention to prolong the matter since she is the plaintiff who is more anxious to get the partition through her suit. He placed reliance upon a Division Bench decision of this Court reported in 2005 (5) CTC 433 [Shankar, K. v. The Oriental Insurance Company Ltd.] in which it is held that when the facts go to the effect that the appellant filed application to condone the delay of 900 days in filing appeal and pleaded that he had shifted his business from Kanchipuram to Dharmapuri and has lost contact with his Advocate and was not aware of the disposal of appeal by the High Court. It is observed in the said judgment that even though delay is considerable, appellant had not deliberately delayed the matter as he would gain nothing by delaying it and question of delay should be considered liberally with view to advance cause of substantial justice. In the said case, delay of 900 days was condoned.
7.He also placed reliance upon a decision of Rajasthan High Court reported in AIR 2009 Rajasthan 48 [Badri Ram & Ors. v. Narayan Ram] in which it is held that when the defendants were never given information by counsel about progress in suit of the order passed against them, in such case, total period of absence of defendants during trial can be condoned by compensating the plaintiff, but denying defendant opportunity to contest the suit would be too harsh since it cannot be said that the defendants were negligent or that they were not entitled to relief of condonation of delay.
8.The learned counsel for the respondent Mr.V.Nicholas, repelling the arguments advanced from the side of the petitioner, would state that when the Court scrutinizes the materials available in this case, it can be discerned that the delay was deliberate and if the delay were condoned, the respondents would be put to hardship. In support of his contention, he garnered support from a decision of this Court reported in 2009 (1) CTC 319 [C.Raghupathy v. C.Govindan] in which delay of 942 days was sought to be condoned in filing the application to set aside the ex parte decree by blaming the previous counsel on record for the party. It is held that the petitioner was not diligent even after engaging the present counsel on record. The time taken for filing the application after engaging the new counsel was 115 days and there was no reasonable and acceptable reasons for those days and hence putting the blame on the counsel cannot be an excuse to the petitioner to establish sufficient cause for condonation of delay and at this stage, if the enormous delay of 942 days is condoned, the respondent will be prejudiced and put to irreparable loss.
9.It is well settled principles that a meritorious claim of the party should not be curtailed in the matter on condonation of delay when no prejudice would be caused to other side nor rights accrued to him be affected. It is also settled that the length of delay is not material and adducing and proof of sufficient cause would matter. If the Court comes to a conclusion that the party was prevented from sufficient cause in filing necessary application, it can very well condone the delay irrespective of the length of the delay. It should also be borne in mind that the delay caused by the party should not be a ruse to protract the proceedings by means of which the rights of the other side would be greatly endangered.
10(a).Adverting to the facts of the present case, the suit filed by the deceased petitioner Gnanasundari was dismissed by the trial court. She filed the appeal, of course with the delay of twenty two (22) days and an application was also filed to condone such delay. It was not pursued by the Advocate by paying batta within reasonable time and hence the stay petition suffered dismissal for default. It is stated that the Advocate on record Mr.Giri Babu died, the matter could not be represented before the court at appropriate time and the petitioner had been under the impression that the Advocate would be looking after the case. It is of course true that the petitioners had not contacted her advocate for a long time.
10(b).However, the materials available in this proceedings would indicate that there could have been no element of intention on the part of deceased petitioner to drag on the proceedings since she happened to be plaintiff in the suit for partition who would have been anxious to get the decree in her favour and prolonging the matter would in no way give her any benefit. Even though the lethargic attitude appears to have been on her part, still the other side would not be prejudiced nor their rights be affected if the delay were condoned. It is to be noted that there may be no occasion to accrue any rights for the petitioners by means of efflux on time since this is a suit for partition. Filing of appeal before the District Court by the petitioner would show that she was consciously pursuing the matter even she got defeated in the trial court.
11.This Court is of the considered view that the reasons assigned in the affidavit are bear ring of truth. There is nothing to doubt her bonafide. Since the advocate on record expired, there was communication gap, in knowing about the stage of the matter. This Court can visualise the subsequent events if an advocate died. There is no material to show that he was having juniors or colleagues to continue his office and they were conscious enough in intimating the parties in the case which were handled by Mr.Giribabu and that after the death of the advocate whether anybody had taken care of the cases. In the absence of any such particulars, the petitioner could not be blamed for the delay solely. Now, the petitioner does not blame her advocate. The unfortunate event, the death of the advocate has paved way for the delay. Since the other party has been waiting for a long time, this Court is of the opinion that for condoning the delay, they must be compensated in terms of money. In such view of this matter, the order passed by the Principal District Judge, Chengalpattu deserves to be set aside and it is accordingly set aside.
12. In fine, the Civil Revision Petition is allowed on condition that the petitioner shall pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) as costs to the respondents within a period of four weeks from this date failing which the petition shall stand dismissed without further reference to this Court.
rgr To The Principal District Judge, Chengalpattu