This Civil Revision Petition is filed against the order dated 3.6.2008 passed in IA.No.17/2007 in OS.No.28/2006 by the learned Additional District Judge (FTC II) Tirunelveli, dismissing the petition to condone the delay of 100 days in filing an application for setting aside the exparte decree.
2. The facts, which are necessary for disposal of this Civil Revision Petition, can be stated as follows:-
a. The Respondent herein filed a suit for recovery of a sum of Rs.8,35,500/- and the Petitioner, after making appearance on receipt of summons, failed to file his Written Statement on 9.10.2006 and consequently the suit was decreed exparte on 15.12.2006.
b. According to the Petitioner, he slipped in the bathroom on 20.9.2006, as a result of which, there was dislocation of knee joint and he could not move out of bed and therefore, he could not contact his counsel. He is said to have taken native treatment and only two days prior to the filing of this petition, he came to know when he contacted his counsel that an exparte decree was passed against him on 15.12.2006 for non filing of the Written Statement. He had submitted that his non appearance was neither willful nor wanton, but due to the above said circumstances and as such, the delay must be condoned.
c. Opposing the said petition the Respondent/ Defendant contended that there is no sufficient reason for condoning the delay and it is made only to protract the proceedings.
d. The court below accepted the contention of the Respondent and dismissed the petition. Hence, this Civil Revision Petition has been filed.
3. Mr.S.Palanivelayutham, the learned counsel for the Petitioner submitted that the Petitioner should not be penalised more so when he has shown sufficient reason for his non appearance and for not filing the Written Statement on the stipulated time and the court below without adverting to the sufficiency of the reason shown by the Petitioner dismissed the petition merely stating that the same is filed only to drag on the proceedings which is not sustainable.
4. The learned counsel for the Petitioner drew the attention of this court to the decision of this court reported in the case of Dr.D.K.Bhaskaran and antoher Vs. Barton Trust, a Registered Partnership Firm, by its Partner M.A.Chacko, Fair House, Porter Avenue, Coonoor, The Nilgiris and another [2007-5-CTC-198] for the preposition that sufficient cause for non appearance is to be proved only on the date of hearing alone and not anterior or posterior to that date. He would submit that on the date of hearing, i.e. on 9.10.2006 when the suit was posted for filing of Written Statement, he had to be in bed, as he slipped in bathroom and suffered dislocation of knee joint and as he took only native treatment, he could not file any medical certificate to prove the same.
5. It is settled law that a person coming to the court after the prescribed period is required to explain the delay and he can succeed in getting the delay condoned when he satisfactorily explains it. But, a court of law cannot require such a person to explain the delay with mathematical precision. The scope of Section 5 of the Limitation Act has been considered from time to time by the different courts including the Honourable Supreme Court and by this time, the preposition of law is well settled that a liberal approach is to be adopted and sufficient cause must be made out in a pragmatic manner and a strict approach calling upon a party to explain each day's delay is to be avoided. It is true that it does not mean that in all eventualities the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 of CPC are supposed to be allowed. But, the court has the anxiety to say that a liberal approach should be given by the law courts so that substantial justice must be imparted to the litigants so that they may not conceive a wrong impression from our judicial system that the law of the land has gone down in the deep sea.
6. The finding of sufficient reasons does not confine the court's inquiry only to the consideration of the reason that prevented the party from appearing and the court has also to find out the totality of the circumstances pleaded by the Petitioner/Defendant. In the present case, the Petitioner is able to prove that he had a sufficient reason to condone the delay, but the court below has not considered the same and dismissed the petition merely on the ground that there is no bona fide in the cause shown by the Petitioner without any basis for such a finding.
7. That apart, having regard to the facts and circumstances of the case, I feel that in the interest of justice, the Petitioner should be given an opportunity to defend the suit on some terms.
8. In the result, this Civil Revision Petition is allowed and the impugned order of the court below is set aside and further it is hereby ordered that the application in IA.No.17/2007 in OS.NO.28/2006 is allowed on condition that the Petitioner pays to the respondent or deposits a cost of Rs.1000/- within a period of four weeks from the date of receipt of a copy of this order, failing which the petition shall stand dismissed without any further reference to this court. However, on such deposit, the court below is directed to take the petition to set aside the exparte decree on file and dispose of the same, on merits and in accordance with law within a period of four weeks thereafter. No costs. Consequently, the connected MP is closed.
Srcm To:
The Additional District Judge (FTC II) Tirunelveli