The revision petitioner/appellant/petitioner/defendant has filed this civil revision petition as against the judgment and decree dated 24.3.2008 made in C.M.A.No.51 of 2007 on the file of the Additional District and Sessions Court, Dharapuram in confirming the fair and decretal order dated 22.03.2007 made in I.A.No.631 of 2007 in O.S.No.242 of 2000 on the file of the Sub Court, Dharapuram.
2.The first Appellate Court in its judgment in C.M.A.No.51 of 2007 on 24.3.2008 has inter alia opined that '.... Admittedly, the suit was posted for trial in the list even on 21.11.2002. Plaintiff was examined in chief on that day and cross examination by petitioner/defendant was postponed at his request to 25.11.2002. But, on 25.11.2002 there was no representation for him and he also failed to appear. As a result an exparte decree was passed for the first time. The same was set aside subsequently on petition filed by the petitioner on costs. Then the suit was posted to trial in the list on 2.3.2005 and plaintiff was examined in chief on that day. The case was posted to 3.3.2005 for cross but again the petitioner/defendant failed to attend the court and there was no representation also for him. So, an exparte decree was passed on that day for a second time. Now, the petitioner has come forward with this petition for the third time to set aside the exparte decree etc. and that the revision petitioner has not stated material particulars such as name of his alleged relative, has expired etc. and that the petition is very vague without material particulars and neither sufficient nor acceptable reasons either pleaded or proved and the previous proceedings and previous conduct of the petitioner/defendant would clearly show that this petition is not at a bona fide and hence, he is not able to take a different view from what the trial Court has taken and there is no material irregularity in the order passed by the trial Court and there is no need to interfere with the same in the appeal and resultantly, dismissed the appeal with costs.'
3.The learned counsel for the revision petitioner/ appellant urges before this Court that both the Courts have not appreciated that the term 'was prevented by sufficient cause from appearing' must be liberally construed so as to give sufficient opportunities to the parties particularly when no negligence or inaction on the part of the defendant and that the Courts have wide discretion and no hard and fast guidelines can be prescribed and in a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided in the absence of any malafide and as a matter of fact, the revision petitioner has engaged a counsel and has been following the proceedings and the petitioner doe have reasons for his non appearance on 17.02.2006 for the reasons beyond his control and as such, he cannot be penalised for any previous negligence which has been over looked and earlier condoned and these aspects of the matter have not been looked into by the trial Court in a real perspective and this has resulted in an erroneous order being passed and the same needs to be corrected in the revision.
4.In response, the learned counsel for the respondent/ decree holder submits that earlier a revision petitioner has filed I.A.No.146 of 2004 to set aside the exparte decree dated 25.11.2002 and the same has been allowed on payment of costs of Rs.1000/- and later when the main case has been posted in the list on 2.3.2005 witness P.W.1 has been examined in chief and the matter has been posted for the purpose of cross examination on 3.3.2005 and that the revision petitioner has not attended the Court on that day and hence, the trial Court has been perforced to pass an exparte decree for the second time and the present I.A.No.631 of 2006 has been projected for the third time to set aside an exparte decree dated 17.02.2006 and since the application lacks bonafides the trial Court is perfectly justified in dismissing the application and the same need not be disturbed by this Court sitting in revision.
5.This Court has heard the contentions raised on behalf of the parties through their counsel and noticed the same.
6.It is true that the word 'sufficient cause' under Section 5 of the Limitation Act will have to be construed in a meaningful and purposeful way to subserve the ends of justice. There is also no dispute to the fact that the deliverance of substantial justice overrides technical considerations. Generally speaking, a litigant does not resort to delay by lodging an application for condonation of delay late. By resorting to a delay he runs a grave risk. As a matter of fact, refusing to condone the delay will result in a meritorious case being thrown out at the nascent stage, thereby the cause of justice being defeated. However, a Court of law is to find out whether there has been inaction on the part of a party approaching a Court or there is palpable negligence on his part or there are malafide actions on his part etc. If the condone delay application is allowed the party will be allowed to enter into the main stream of proceedings so that the subject matter of the suit can be decided on merits.
7.A justice oriented approach to deal with the matter on merits may be the rule but at the same time if there has been inaction or negligence on the part of the party approaching the Court the same will have to be viewed with serious concern.
8.At this juncture, the learned counsel for the revision petitioner relies on the decision of Hon'ble Supreme Court in G.P.Srivatasava V. Shri R.K.Raizada and others 2000 (II) CTC 27 whereby and whereunder it is laid down as follows:
"Sufficient cause for non-appearance refers to date on which absence was made for proceeding ex parte and it cannot be stretched to rely upon other circumstances anterior in time and previous negligence which had been overlooked and condoned earlier cannot be made use of for considering sufficient cause and discretion should normally be exercised in favour of party approaching court within limitation.'
9.It is to be noted that the discretion enjoined upon a Court of law should not be exercised in a caviler fashion, much to the detriment of the other party.
10.As far as the present case is concerned, earlier two times an exparte decree dated 25.11.2002 and 17.2.2006 have been passed by the trial Court against the revision petitioner and only for the third time he has projected an I.A.No.631 of 2006 praying to set aside the exparte decree passed against him on 17.02.2006. When the suit has been posted for cross examination of P.W.1 before the trial Court on 17.02.2006 the revision petitioner has not appeared and there was no representation also on his side and therefore, the trial Court has been left with no other alternative but to pass an exparte decree on the very same day. It appears that the revision petitioner/defendant has been casually filing application after application to set aside the exparte decree passed and that he is not serious in regard to the merits of the case projected by him in the written statement. Therefore, on a conspectus of the facts and circumstances of the case and also taking note of the fact that already two times an exparte decree has been passed against the revision petitioner and also the fact that E.P.No.34 of 2006 is also pending before the Executing Court, this Court comes to the inescapable conclusion that the reason assigned by the revision petitioner in his affidavit in I.A.No.631 of 2006 to the effect that on 17.02.2006 he has been unable to attend the Court due to his close relatives condolence and therefore, he is not able to instruct his counsel to act accordingly is not either a good cause or a sufficient cause, in the considered opinion of this Court and consequently, the civil revision petition fails.
11.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the Appellate Court in C.M.A.No.51 of 2007 dated 24.03.2008 is confirmed by this Court for the reasons assigned in this revision. Having regard to the facts and circumstances of the case, there shall be no order as to costs.