Animadverting upon the order dated 13.12.2007 passed in I.A.No.1208 of 2007 in O.S.No.456 of 1995 by the District Munsif Court, Dharapuram, this revision petition is filed.
2. A summation and summarisation of facts, which are absolutely necessary and germane for the disposal of the civil revision petition would run thus.
The revision petitioner, as plaintiff, filed the suit O.S.No.456 of 1995 before the Principal District Munsif, Dharapuram, seeking declaration and permanent injunction, so as to safe-guard his right to take water from the common well to his property as per the partition deed. However, the suit was once dismissed for default. Subsequently, it was restored. Thereafter the defendants/respondents have not filed any written statement. The defendants set ex-parte and an ex-parte decree was passed on 17.2.1997. As such, after a lapse of 2507 days, in other words, almost 8 years, the defendants had chosen to file I.A.No.1208 of 1995 under Section 57 of the Limitation Act for getting the delay condoned in filing the I.A. under Order 9 Rule 13 of C.P.C. The plaintiff filed the counter highlighting that the reasons found set out in the affidavit are all false as the respondents/defendants were very much present in the village throughout and they participated in the land acquisition proceeds and criminal case and also conducted milk business and supplied milk to the Co-operative Society; however suppressing all these facts, the affidavit was filed by the defendants as though they were away from the village and that was why they could not file the application to get the ex-parte order set aside. Despite all these, the lower Court allowed the application on payment of cost of Rs.2000/-. Being aggrieved by the said order, the plaintiff filed this revision on various grounds.
3. The learned counsel for the revision petitioner/plaintiff would contend that the counter filed by the plaintiff in I.A.No.1208 of 2007 would indicate as to how the defendants filed false affidavit as though they were away from the village for all those years and the lower Court, without adverting to the solid objections raised by the revision petitioner/plaintiff, simply in a cryptic order opined that in the interest of justice opportunity should be given to the defendants, on payment of cost of Rs.2000/-.
4. Whereas, the learned counsel for the respondents/defendants, citing various decisions, namely,
(i) 2008(1) CTC 785 1.RAVI ENTERPRISES REP BY ITS PARTNER, T.S.RAVI, 2.T.S.RAVI, 3.SMT.T.S.SUMATHY, 4.SHRI T.S.SULOCHANA VS. 1.INDIAN BANK, THIRUVOTTIYUR BRANCH T.H.ROAD, THIRUVOTTIYUR, CHENNAI-19, 2.THE CHAIRPERSON, DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI-3 AND 3.K.LAKSHMI;
(ii) (2003) 11 SUPREME COURT CASES 727 BHAGMAL VS. M.P.COOPERATIVE MARKETING & CONSUMER FEDERATION LTD. AND OTHERS
(iii)(2005)3 M.L.J.439 YANAIMAL THOTTAM TRUST, REP.BY ITS TRUSTEE G.N.CHANDRABALAN, MANNARGUDI VS. B.LAKSHMANAN AND ANOTHER 1997 (II) CTC 663 P.K.RAMACHANDRAN VS. STATE OF KERALA AND ANOTHER would develop his argument to the effect that the right of the defendants to defend their case before the civil Court is a valuable right and recognising such right alone, the lower Court condoned the delay on cost and in such a case, this Court may not interfere with the discretion exercised by the lower Court.
5. The warp and woof, the gist and kernal, the pith and marrow of all those decisions cited supra, is to the effect that on valid reasons cited by the petitioners for getting the delay condoned, the Court has to liberally consider and condone the delay.
6. The learned counsel for the petitioner/plaintiff citing the decision in 1997 (II) CTC 663 P.K.RAMACHANDRAN VS. STATE OF KERALA AND ANOTHER would put across his point that unless valid reasons are cited, delay cannot be condoned.
7. In the cited case there was a delay of 565 days and since there was no sufficient reason, the Honourable Apex Court did not exercise its discretion to condone the delay.
8. Two other precedents of this Court reported in 2007 (4) CTC 506 SIVAKUMAR AND ANOTHER V. R.SENGODAN; AND 2007(2) C.T.C. 643 have also been cited on the respondents' side fruitfully.
9. A bare perusal of the order of the lower Court would leave no doubt in the mind of the Court that the lower Court in a grossly improper manner exercised its discretionary power, ignoring the enormous delay and that too, overlooking the averments of the petitioner/plaintiff relating to specific instances where the defendants were very much available in the village and participated in various legal proceedings. The lower Court simply in a cryptic order opined that in the interest of giving due opportunity, the delay could be condoned. In my considered opinion such an approach on the part of the lower Court was far from satisfactory and hence interference is warranted.
10. The respondents/defendants also have not chosen to file any reply pointing out as under what circumstance they were constrained to appear in those proceedings during the delay period or at they least should have contended that they did not appear in those proceedings if that be true. But neither oral nor documentary evidence was adduced by the respondents/defendants.
11. When all said and done , considering the pro et contra, in this factual matrix, I am of the considered opinion that the order of the lower Court is having no legs to stand and the reasons cited by the respondents/defendants in their affidavit filed in I.A.No.1208 of 2007 were not substantiated by them. But on the other hand, ex facie and prima facie, the petitioner/plaintiff had highlighted that no reason at all was established to get the delay condoned by the respondents/defendants. They allowed grass to grow under their feet, whereby attracted the maxim Vigilantibus non dormientibus jura subveniunt.
G.RAJASURIA,J.
msk
12. My mind is reminiscent and redolent of the maxim Interest reipublicae ut sit finis litium, which means, in the interest of public there should be end to litigation. In this case even though the respondents/defendants approached after enormous delay of 8 years after the ex-parte order for getting the delay condoned, yet the Court in a casual manner condoned it and accordingly the order of the lower Court is set aside and the I.A.No.1208 of 2007 is dismissed.
13. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.