IN THE HIGH COURT OF JUDICATE AT MADRAS Dated: 24.02.2017 CORAM THE HON’BLE MR.JUSTICE M.V.MURALIDARAN CRP(NPD)No.2255 of 2012 and M.P.No.1 of 2012 Jayalakshmi … Petitioner Vs Allavudin … Respondent Prayer: Civil Revision Petition filed under Section 115 of the Civil Procedure Code, against the Fair and decretal order dated 13.02.2012 passed in I.A.No.279 of 2011 in A.S.No.121 of 2005, on the file of the II Additional Subordinate Judge, Villupuram, whereby dismissing the condone delay petition filed by the petitioner for restore the appeal in A.S.No.121 of 2005, dismissed as default on 03.11.2008.
Petitioner : Mr.C.Prakasam Respondent: Mrs.V.Srimathi O R D E R The appellant in A.S.No.121 of 2005, on the file of the II Additional Subordinate Judge, Villupuram, is the revision petitioner before this Court, challenging the order passed in I.A.No.279 of 2011 in A.S.No.121 of 2005, dated 13.02.2012.
2. The case of the revision petitioner is that originally the respondent has filed the suit in O.S.No.64 of 2002, on the file of the Principal District Munsif Court, Villupuram against this petitioner/appellant for declaration and for permanent injunction.
3. The said sit was disposed on merits and decreed in favour of the respondent/plaintiff on 26.02.2004, challenging the said judgment and decree in O.S.No.64 of 2002, dated 26.02.2004, this petitioner, who is the defendant in the suit has filed an appeal in A.S.No.121 of 2005, on the file of the II Additional District Subordinate Judge, Villupuram.
4. The petitioner/appellant further states that the said appeal was filed on 03.11.2008 for arguments on the appellant’s side, but due to affection of viral fever and some out station works, her counsel was unable to attend the case on 03.11.2008 and also some previous hearing dates. Therefore, due to the no representation on behalf of the petitioner/appellant, she was set exparte and the said appeal was dismissed for default on 03.11.2008.
5. The petitioner also come forward by saying that she did not aware about passing the exparte dismissal order passed in the said appeal since she gone to various pilgrim centres in India as a sanyasi for the past one year. Further, her counsel also shifted his practice from Pondicherry to Hosur for the past one year. The petitioner also states that her counsel also did not aware about the exparte dismissal of the said appeal. She being a poor lady and also aged about 84 years and lost her eye sight and her husband also died, she has also leading her life as a helpless person and she also states that she also an illiterate person and only a thumpant. She also states that there is no willful, latches or negligence on her part, but due to the above said genuine reasons, she was not appeared and her counsel was also not attended the Court on the said date. Therefore, she filed an application for setting aside the dismissed for default and for restoration of the appeal and allowing with the condonation of delay of 715 days in preferring the set aside petition filed under Order 41 Rule 21 of CPC, which was numbered in I.A.No.279 of 2011 and prayed the said Court namely II Additional Subordinate Judge, Villupurram, to allow the condone delay application.
6. On receipt of the notice in the condone delay application, this respondent/plaintiff has filed his counter in which she stated that the petition filed for restoration of the appeal along with the delay of 905 days in filing the petition is false, most vexatious, unsustainable in law and the petitioner does not deserves any sympathy or any leniency from the Court.
7. The respondent also states that the respondent has denied the allegations set out by the petitioner/appellant in the affidavit and the respondent also states that the petitioner was not the age of 84 years, but in the affidavit filed in support of I.A.No.279 of 2011 shows that she is 61 years. Therefore, she made false affidavit stating that she is 84 years old.
8. The respondent also denied that she losing her eye sight is nothing but false but invented for the purpose of the petition filing for condoning the delay. The respondent also states that he also filed an Execution Petition and the same was also set exparte, due to non appearance of this petitioner/appellant and when the Court namely, the District Munsif Court, Villupuram about to executing the order for delivery of the property with the help of the Police after breaking open the premises which has been kept under lock and locked by the petitioner/appellant, she prayed for one day time in the Executing Court and then immediately she has filed an application for restoring the appeal. Therefore, the respondent prayed the Court for dismissal of the condone delay petition.
9. Considering both sides arguments, the learned II Additional Subordinate Judge, Villupuram, has passed an lengthy order, which contains 13 pages in which he has discussed several judgments passed by this Court and the Hon’ble Apex Court and dismissed the application on 13.02.2012.
10. The learned Judge says that citing the judgments rendered in Sankaralingam and another v. V.Rahuraman reported in 2002
(3) CTC 13, that whether the petitioner has satisfactorily proved sufficient cause for delay, whether the petitioner is guilty of negligence or inaction or want of bona fide, whether the valuable right that he accrued to other party is likely to be defeated by condonation of delay and whether the petitioner has arguable points
on facts and law in the main appeal and the petitioner has not given any valuable reason for the huge delay of 715 days and dismissed the petition.
11. The learned Judge also states that this is not the first occasion for dismissal of the appeal, but it is the second occasion, therefore, the reason shown on the side of the petitioner/appellant for the delay that happened, not satisfactory as well as sufficient to condone the delay by invoking Section 5 of the Limitation Act. Challenging the said order, the revision petitioner has filed the present civil revision petition before this Court.
12. I heard Mr.C.Prakasam, learned counsel appearing for the petitioner and Mrs.V.Srimathi, learned counsel appearing for the respondent and perused all the relevant records.
13. During the course of arguments, the learned counsel appearing for the petitioner has produced a judgment rendered by the Hon’ble Apex Court recently in Civil Appeal No.(S).3777 of 2015 in which the Hon’ble Apex Court has passed an order on 20.04.2015 is as follows:
“This appeal arises out of an order dated 5th June, 2013, passed by the High Court of Judicature at Madras whereby CRP(NPD)No.266 of 2011 filed by the appellant has been dismissed and the order passed by the first appellate court declining condonation of 882 days in the filing of the appeal by the appellant affirmed.
We have heard learned counsel for the parties at some length. We are satisfied that in the facts and circumstances of the case, the first appellate court could and indeed ought to have condoned the delay in the filing of the appeal. Since, however, the delay is fairly inordinate, we are inclined to direct condonation subject to payment of costs.
We accordingly allow this appeal, set aside the orders passed by the High Court and that passed by the first appellate Court with the direction that upon deposit of a sum of Rs.50,000/- (Rupees fifty thousand) towards costs before the first appellate court within six weeks from today, the delay in the filing of the appeal shall stand condoned. The first appellate court shall hear and dispose of the first appeal filed by the appellant expeditiously and as far as possible within a period of six months from the date the costs are deposited by the appellant. The amount of costs shall be paid to the respondent.
The appeal is allowed in the terms and to the extent indicated above.”
14. The Hon’ble Apex Court clearly held that the Courts in this country, including the Supreme Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient case under Section 5 of the Limitation Act. However, the concepts such as “liberal approach”, “justice oriented approach”. “substantial justice” cannot be employed to jettison the substantial law of limitation. The Hon’ble Apex Court in the said case in Civil Appeal No.(S).3777 of 2015, dated 20.04.2015, though there was a huge delay of 882 days, but that was allowed by the Hon’ble Apex Court with the huge cost of Rs.50,000/-. The Hon’ble Apex Court very categorically held that while considering the delay application, the Court should made liberal approach in considering the Section 5 of the Limitation Act.
15. In the present case on hand, the petitioner, who is the lady, though she stated that she is aged about 84 years, but the respondent/plaintiff stated that in the petitioner’s affidavit her age as 61 years, even otherwise, the petitioner, who is a lady, crossed 60 years and who is illiterate has given some reasons for non appearance by her and her counsel, which is not sufficient cause for the delay. This Court has categorically consider in the cases like declaration, specific performance and partition, either the suit or the appeal should be disposed only on merits.
16. The Hon’ble Apex Court categorically held that though the delay is inordinate, but that can be condoned subject to the payment of heavy cost. Though the reason given by the petitioner/appellant is not sufficient, but in the interest of justice by applying the said unreported judgment in Civil Appeal No.(S).3777 of 2015, dated 20.04.2015, by giving one more opportunity to the petitioner/appellant to put forth her case before the Court namely the II Additional Subordinate Judge, Villupuram and in the interest of justice, I am inclined to allow the civil revision petition, by setting aside the order of dismissal in I.A.No.279 of 2011 in A.S.No.121 of 2005, dated 13.02.2012, on the file of the II Additional Subordinate Judge, Villupuram, but the petitioner/appellant should compensate the same by way of cost. Therefore, this civil revision petition is liable to be allowed by setting aside the above said order.
17. In the result:
(a) the civil revision petition is allowed by setting aside the order passed in I.A.No.279 of 2011 in A.S.No.121 of 2005, dated 13.02.2012, on the file of the II Additional Subordinate Judge, Villupuram, on condition that the petitioner should pay a sum of Rs.25,000/- as cost to the Government Infectious Disease Hospital, Thoppur, Madurai-Virudhunagar Road, Madurai District, within a period of four weeks from the date of receipt of a copy of this order;
(b) on production of the payment receipt by the petitioner/appellant, the appellate Court namely, the II Additional Subordinate Judge, Villupuram is hereby directed to number the restoration application and to dispose the same within a period of 15 days, by giving notice to both the parties;
(c) on passing orders in the restoration application the first appellate Court namely, the II Additional Subordinate Judge, Villupuram, is hereby directed to dispose the appeal within a period of two months on day to day basis without giving any adjournment to either parties. Both the parties are hereby directed to give their fullest cooperation for early disposal of the appeal. Consequently, connected miscellaneous petition is closed.
24.02.2017 vs Index:Yes/No Internet:Yes/No To The II Additional Subordinate Judge, Villupuram.
M.V.MURALIDARAN,J.
vs Pre-Delivery order made in CRP(NPD)No.2255 of 2012 and M.P.No.1 of 2012 24.02.2017
C.R.P.(NPD).No.2255 of 2012 M.V.MURALIDARAN, J.
Today, the matter is listed under the caption “for being mentioned” at the instance of learned counsel for petitioner.
2. Heard learned counsel for the petitioner and learned counsel appearing for the respondent.
3. It is represented by the learned counsel for the petitioner that the matter has already been allowed by this Court by order dated 24.02.2017, by setting aside the order passed in I.A.No.279 of 2011 in A.S.No.121 of 2005, dated 13.02.2012, on the file of the II Additional Subordinate Judge, Villupuram, on condition that the petitioner should pay a sum of Rs.25,000/- as cost to the Government Infectious Disease Hospital, Thoppur, Madurai-Virudhunagar Road, Madurai District, within a period of four weeks from the date of receipt of a copy of this order.
4. It is further represented by the learned counsel for the petitioner that the authority to whom the money has to be paid has not been mentioned in the address of the Hospital and there is also a mistake in the address of the Hospital and it should be "THE RESIDENT MEDICAL OFFICER, GOVERNMENT HOSPITAL OF THORACIC MEDICINE, THOPPUR, MADURAI.
M.V.MURALIDARAN, J.
ub
5. Accordingly, the address of the Hospital in paragraph No.17(a) of the order dated 24.02.2017 made in CRP(PD).No.2255 of 2012 should be read as "THE RESIDENT MEDICAL OFFICER, GOVERNMENT HOSPITAL OF THORACIC MEDICINE, THOPPUR, MADURAI" instead of Government Infectious Disease Hospital, Thoppur, Madurai-Virudhunagar Road, Madurai District."
6. Registry is directed to carry out necessary corrections and issue fresh order copy.
19.04.2017 ub
Note: Issure Order copy on 20.04.2017
C.R.P(NPD)No.2255 of 2012
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