The petitioner/plaintiff has filed this Civil Revision Petition as against the order dated 05.01.2008 in I.A.No.334 of 2005 in O.S.No.143 of 2001, passed by the learned Additional District and Sessions Judge (Fast Track Court No.II), Coimbatore, in dismissing the application filed by the revision petitioner/plaintiff under Section 5 of the Limitation Act, praying to condone the delay of 1108 days in restoring the O.S.No.143 of 2001 to file.
2.The trial Court, while passing orders in I.A.No.334 of 2005, has interalia observed that '...the reason stated that the fact of the transfer from the I Additional Judge, Coimbatore to this Court did not reach the petitioner seems to be unaccepted one, since because whenever the suit is filed, it is the duty of the petitioner/plaintiff to follow up the matter then and there and at the time, the petitioner/ plaintiff has kept silent for more than 1,000 days by not following the continuous proceedings and the Original Suit is very clear and it proves negligence and carelessness of the petitioner/defendant in handling the matter and also the fact that he is not more serious in prosecuting the claim' etc., and resultantly, come to the conclusion that there are no valid and bonafide reasons to allow this application, which is devoid of merits and dismissed the application without costs.
3.The learned counsel for the revision petitioner/plaintiff urges before this Court that the trial Court has failed to exercise its discretion in favour of the revision petitioner and in fact, it should have condoned the delay in filing an application to restore the suit in order to give the petitioner/plaintiff an opportunity to have his claim decided on merits and admittedly, the suit is filed for the relief of Specific Performance and that the petitioner/plaintiff has paid a huge amount as an advance and that the deceased husband of the first respondent has taken a plea that he has executed the stamp paper 'in blank' for having borrowed money from the plaintiff which has also become time barred etc., and after the death of the defendant, his heirs have been impleaded as parties in I.A.No.498 of 2007 before the trial Court and in order to agitate the respective claims of the parties an opportunity should be provided by taking a liberal view, so that the suit can be decided on merits, but unfortunately these aspects of the matter have not been properly adverted to and appreciated by the trial Court in a real perspective which has resulted in miscarriage of justice and therefore prays for allowing this Civil Revision Petition in the interest of justice.
4.In support of the contention that a liberal is to be adopted by a Court of Law in dealing with the application for condonation of delay filed under Section 5 of the Limitation Act, the learned counsel for the revision petitioner/plaintiff relies on the decision of this Court in B.Ganesan v. State Bank of India, Dharapuram Branch, Erode District and 3 Others (2008-2-L.W. 330), whereby and whereunder it is observed as follows;
'The term "sufficient cause" should receive a liberal interpretation in the hands of law courts A pedantic approach should not be made and on the other hand, a pragmatic approach should be made by the courts of law in the justice delivery system Admittedly, refusing to condone the delay will certainly result in a good case being thrown out at the early stage and cause of justice being defeated.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserved to be preferred.
It must be borne in mind that judiciary is respected because it is capable of removing injustice on technical grounds Revision petitioner must be given an opportunity to contest the proceedings before the DRT, Coimbatore and in that view, his meritorious cause cannot be thrown out at the early stage CRP allowed.'
5.He also cites the decision of this Court in Special Tahsildar, Adi Dravidar Welfare, Cheranmahadevi v.S.Sulaiman Syed and Others (2009-1-L.W. 769), wherein it is held thus;
'Though the delay has not been explained in so many words in the present application, Court is of the view that the enhancement as made by the trial Court from Rs.25,260/- to Rs.1,74,977/- per acre needs to be examined in the second appeal Therefore, in the interest of justice and to enable the petitioner to prosecute the appeal, Court is inclined to condone the delay of 1,539 days in filing the second appeal subject to the following conditions: The petitioner shall deposit the entire Award amount along with upto date interest and cost before the Sub Court, and the petitioner shall also pay a total sum of Rs.10,000/- (Rupees ten thousand only) as cost to the respondents. '
6.In response, the learned counsel for the Respondents 1 to 3 submits that when the suit has been posted for trial on 13.06.2002, the petitioner/plaintiff has known that the trial will commence and conclude soon and in order to keep the litigation pending the plaintiff has purposely allowed to be said called absent and the suit has come to be dismissed for default and the reason mentioned in regard to the delay in projecting an application to restore the suit is a false one and the application originally has not been numbered before the trial Court for the last two years and this exhibits the casual attitude of the petitioner and there are no merits or bonafides in the application and that the trial Court has rightly dismissed the I.A.No.334 of 2005 by assigning cogent and convincing reasons and therefore, the same need not be interfered with by this Court sitting in revision.
7.The learned counsel for the respondents submits that the delay cannot be excused as a matter of judicial generosity and in support of the said contention, she relied on the decision of this Court in G.Jayaraman, 117 North Street, Iyyampettai Village, Kancheepuram Taluk v. Devarajan, 11-A Seeuamangalam Pettai, Thimmarajam Pettail, Kancheepuram Taluk (2007-3-L.W. 1034) wherein it is held as follows;
'While considering the pleas relating to affording an opportunity to advance substantial justice, the right accrued to the other side ought to be kept in view When there is deliberate delay, the respondent herein cannot be heard to plead that substantial justice deserve to be preferred as against technical consideration.
Delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party Liberal exercise of jurisdiction under Section 5 of the Act would cause prejudice to the plaintiff/decree holder, who has been pursuing the money suit for quite a long time In condoning the delay, there is improper exercise of discretion and therefore, the impugned order cannot be sustained CRP allowed.'
8.She also seeks an aid of the decision in R.Jacob v. C.Prabakar (2007-4-L.W. 639 & 640), wherein it is observed thus;
'It is not the length of the period of delay which is vital, but how the delay has been explained assumes importance Even if a liberal interpretation is to be given, then also, the unexplained long delay of nearly 5-1/2 years cannot be condoned If the delay of this nature is to be condoned, valuable right accrued to the plaintiff over years back would be unsettled.
At one point or other, there has to be a finality of litigation Ends of justice do not mean favour to the applicant at the cost of affecting the valuable right accrued to the opposite party.
Plaintiff and the settled state of things cannot be disturbed on the ground that the defendant has come out with an application with vague reasons that he had family problems There is no proper exercise of discretion by the lower Court in condoning the delay and the impugned order cannot be sustained.'
9.Added further, on the side of the respondents attention of this Court is drawn to the decision in Sivakumar and another v.R.Sengodan (2007 (4) CTC 506), at page 508 and 509 wherein it is observed here under;
'After careful consideration of the rival submissions made, this Court is of the considered opinion that the order of the lower Court does not require interference for more reasons than one. It was a Suit for recovery of money in which the defendants appeared through Counsel. But, they did not file the written statement, which would be indicative of the fact that they have got the knowledge about the proceedings. The written statement was not filed in time. Then, they were set ex-parte on 22.11.2002, and an ex-parte decree has been passed on 29.11.2002. It is pertinent to point out at this juncture that they have also filed an Application to set aside the ex-parte decree in time on 05.12.2002. Thus, they not only knew but also were conscious of the fact; but, they were not following the same for nearly about 656 days. Therefore, they came with the instant Application stating that the counsel did not intimate them, and there was shifting of residence, and neither they have knowledge about the proceedings, nor they were conscious of the fact that the ex-parte decree has been passed. It was the utter carelessness on the side of the petitioners to take such a time of 656 days. It is well settled that in a case of condonation of delay, the Court must take a liberal view; but, at the same time, as far as the condonation of delay is concerned, the Court should not do so on exercising equity. If it is done, it would be nothing but extension of limitation what is not available to a party under an enactment. Under the circumstances, this Court is of the opinion that in the absence of sufficient and convincing reasons in such a case, the Court should not excuse the delay. Hence, the delay cannot be condoned. The Lower Court was perfectly correct in dismissing the application. Nothing requires interference.'
10.Lastly, the learned counsel for the respondents cites the decision of this Court in M.Ramakrishnan v.Vinod Kumar Goyal (2006-4-L.W. 650) at Page 650 & 651 wherein it is held as follows;
'The learned counsel for the revision petitioner is also justified in contending that when the exparte decree was passed on 29.07.2002 itself, no petition to condone the delay was filed by the respondent herein even though I.A.No.19988/2003 was filed by him only on 09.09.2003. Filing a condone delay petition under Section 5 of the Limitation Act is not an empty formality and when there is a delay, the same has to be explained by the Applicant to the satisfaction of the Court. Hence, the order of the trial Court on the face of it is vitiated as it has failed to advert to the entire facts of the case and also has omitted to note that the delay was not at all explained by the respondent.'
11.It is useful to refer to the averments made by the petitioner/plaintiff in I.A.No.334 of 2007 before the trial Court wherein it is mentioned that the suit has been originally pending before the I Additional Subordinate Judge of Coimbatore and subsequently, the said suit has been transferred to this Court and further, he has been under the impression that the suit has been pending before the I Additional Subordinate Judge of Coimbatore and therefore, he has not contacted his counsel and since the letter addressed to him by his counsel has not reached him and subsequently, when he contacted his counsel, he has come to know that the suit has been dismissed for default on 13.06.2002 and he has immediately filed an application to restore the suit and in the mean time, there has been a delay of 1108 days and therefore prays for condonation of delay in this regard.
12.In the counter filed by the third respondent (adopted by the respondents 2 & 4) it is averred that the fact that the petitioner has not followed up the matter for more than 1,000 days proves his negligence and carelessness in handling the matter and also the fact that he has not been serious in prosecuting his claim and the conduct of the petitioner disentitles him to claim any indulgence from the Court and in spite of the opportunities given, the petitioner has not come forward to prosecute the matter and therefore, the delay of 1,108 days is not to be condoned.
13.A careful perusal of the Judge's notes paper in O.S.No.143 of 2001 shows that the main suit has been posted in the list on 01.08.2002 for trial and on that day, the Advocates have been on Boycott and all the matters have been directed to be called on 08.08.2002 and again owing to the Advocates Boycott, the matter has been posted to 27.08.2002 and on 27.08.2002, when the matter has been posted for trial, there have been no representation on both sides and that the plaintiff has been called absent and the suit has been dismissed for default.
14.In the plaint, the petitioner/plaintiff has sought the relief of directing the respondent/defendant to transfer the property described in the plaint schedule to the revision petitioner/plaintiff by a properly executed Sale Deed and have a same registered at the cost of the plaintiff, after receiving the balance sale consideration of Rs.5,46,000/- from the plaintiff and do all acts necessary to put the plaintiff in full possession of the property.
15.In the written statement filed by the deceased defendant, it is among other things averred that the claim of the petitioner/plaintiff for specific performance has sought to be rejected on the ground of delay, latches and lack of bonafides and the plaintiff has filed the suit in O.S.No.1918 of 1994 for the relief of bare injunction before the learned District Munsif, Coimbatore alleging the very same agreement dated 01.08.1993 and this agreement has been disputed and denied by the respondent/defendant and therefore, the revision petitioner/ plaintiff ought to have filed the suit for specific performance immediately and further, the deceased defendant's sister has filed the suit for Partition in respect of the very same property against the deceased defendant in O.S.No.2337 of 1996 on the file of the learned Principal District Munsif, Coimbatore and the revision petitioner/ plaintiff has suppressed the material facts and therefore, he is not entitled to the relief of Specific performance and also that the suit is barred by limitation and the purported payment of Rs.20,000/- and the endorsement are false and a fabricated one and that the said endorsement will not renew the limitation.
16.It cannot be denied that Section 51 of the Limitation Act enjoins the Courts to deliver substantial justice disposing of the matters on merits. As a matter of fact, the term 'sufficient cause' is elastic enough to apply the law in a meaningful manner to subserve the ends of justice. By and large, a party does not stand to benefit by projecting an application late. Refusing the condone the delay may result in a good case being thrown out at the threshold and cause of justice being defeated. As against this when the delay is condoned, the maximum that can happened is that a cause will be decided on merits, by a Court of Law, of course, after hearing the litigants. There is no presumption that the delay has occasioned wantonly or on account of malafides. By resorting to the delay, a party does not gain by himself instead of he runs a grave risk. Also when substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred for the other side cannot claim to have any vested right in injustice being done because of a non-deliberate delay. It must 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 removing injustice and is expected to do so.
17.On a careful consideration of respective contentions even though the petitioner/ plaintiff has averred in his affidavit in I.A.No.334 of 2007 to the effect that 'subsequently, the suit has been transferred to file of the District and Sessions Judge (Fast Track Court No.II), Coimbatore from the I Additional Subordinate Judge, Coimbatore and that he has been under impression the said suit is pending before the Additional Subordinate Judge, Coimbatore and therefore he has not contacted his counsel etc.' and the same are not convincing yet this Court by adopting a meaningful and purposeful justice oriented elastic approach and also by adopting a liberal approach in a rational and common sense pragmatic fashion allows this Civil revision Petition in furtherance of substantial cause of Justice subject to the condition that the petitioner/plaintiff shall pay a cost of Rs.4,000/-(Rupees Four Thousand Only) to the respondents/defendants counsel directly on or before 21.01.2010, failing which this petition will stand dismissed automatically without any further reference and ordered accordingly.
18.In the result, this Civil Revision Petition is allowed without costs. The petitioner/plaintiff is directed to pay a sum of Rs.4,000/- (Rupees Four Thousand Only) to the respondents/defendants counsel directly on or before 21.01.2010 failing which it is made clear that the revision petition shall stand dismissed without any further reference. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
mps To The Additional District & Sessions Judge, (Fast Track Court No.II), Coimbatore