IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2017 CORAM THE HON'BLE MR. JUSTICE M.V.MURALIDARAN C.R.P. (NPD) No.3574 of 2012 1.Rangaswamy 2.Saraswathi 3.Dhanalakshmi
4. Rajendran .. Petitioners vs Pappathi @ Rajalakshmi .. Respondent Revision filed under Article 227 of Constitution of India against the order passed in I.A.No.78 of 2011 in O.S.No.96 of 2009, dated 15.11.2011 on the file of the Principal Subordinate Judge, Coimbatore.
For Petitioners : Mrs.Vanathi Srinivasan For Respondent : Mr.L.Mouli * * * * * ORDER This revision is directed against the order of the Principal Subordinate Judge, Coimbatore in I.A.No.78 of 2011 in O.S.No.96 of 2009, dated 15.11.2011, dismissing the petition filed under Section 5 of the Limitation Act to condone the delay of 486 days in filing the petition to set aside the exparte decree dated 31.08.2009.
2. The petitioners, who are defendants in the suit have filed the petition, being I.A.No.78 of 2011, alleging that when the suit was posted for filing the written statement on 20.08.2009, the first petitioner, who was looking after the suit for himself and on behalf of the petitioners 2 to 4, was suffering from jaundice. Due to ill-health, the first petitioner could not file the written statement and the petitioners were called absent, set exparte and the suit was decreed on 31.08.2009. Immediately, after recovering the illness, the first petitioner filed the petition to set aside the exparte decree along with delay condonation petition. The delay is due to the illness, which is beyond his control.
3. Resisting the petition, the respondent has filed the counter stating that the allegation of jaundice stated by the first petitioner is false. The delay of 486 days was not explained properly. It is stated that the first petitioner, who was arrayed as 17th respondent in Tr.O.P.No.172 of 2010 on the file of the Principal District Court, Coimbatore, personally present on 05.07.2010 and filed the counter on 16.08.2010. The above aspect would reveal that the first petitioner has been regularly coming to the Court for other cases. The petitioners have not chosen to explain each and every days delay.
4. Before the trial Court, on the side of the petitioners and the respondent, no witnesses were examined. On the side of petitioners, no document was marked. On the side of the respondent, Exs.R1 and R2 were marked.
5. Upon consideration of the rival submissions, the trial Court dismissed the petition. Aggrieved by the same, the petitioners have filed the present revision.
5. I heard Mrs.Vanathi Srinivasan, learned counsel for the petitioners and Mr.L.Mouli, learned counsel for the respondent. Perused the materials available on record.
6. The learned counsel for the petitioners submitted that the trial Court erred in seeing that during the relevant point of time, the first petitioner, who was looking after the case, was suffering from jaundice and was taking traditional medicine for long time and therefore, he could not in a position to give instructions to their advocate to file the written statement. He submitted that the trial Court ought to have seen that although the first petitioner was involved in some other cases, was not aware of the exparte decree made by the trial Court in the instant case. He argued that the trial Court ought to have seen that the petitioners have valuable defence which can be substantiated by several documents, could not be interested in either delaying the proceedings or to remain indifferent in defending their case. He finally argued that the trial Court committed an error in disallowing the petition in condoning the delay, which had the serious repercussion and their legitimate right to defend their case is being denied.
7. The learned counsel for the respondent submitted that the allegation of jaundice pleaded by the first petitioner is false and the petition to condone the delay filed by the petitioners was only a speculative one and to defeat the rights of the respondent. He submitted that the trial Court was right in dismissing the petition. Therefore, there is no need to interfere with the order of the trial Court.
8. On a perusal of the copy of the plaint, I find that the respondent has filed the suit for partition and separate possession. The plaintiff, first defendant and one Kuppuswamy are the legal representatives of Goundae Gounder. The second defendant is the wife of Kuppuswamy and the defendants 3 and 4 are the children of Kuppuswamy.
9. According to the petitioners, the first petitioner, who was looking after the case for himself and on behalf of the other petitioners, who are wife and children of his brother Kuppuswamy, was suffering from jaundice from 3rd week of July 2009 and was taking country treatment. Therefore, the delay of 486 days occurred in filing the petition to set aside the exparte decree. The delay is neither wilful, nor wanton.
10. Per contra, the case of the respondent is that without any supporting document, the petitioners have filed the petition alleging that the first petitioner was suffering from jaundice at the relevant date when the suit was posted for filing written statement and that there was a deliberate inaction on the part of the petitioners. Therefore, no leniency could be shown to the petitioners.
11. The trial Court, in its order, observed that consistent view has been taken by the Supreme Court in various decisions that “sufficient cause” appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bonafide on the part of the applicant.
12. The trial Court, by citing various decisions of the Supreme Court as well as this Court, held that in view of the legal principles, the delay cannot be excused as a matter of judicial generosity and the reason stated by the petitioners in the affidavit is bereft of particulars and not satisfactory.
13. I am in agreement with the legal principles drawn by the respondent. But the respondent has not produced any rebuttal evidence to show that at the relevant point of time, the first petitioner, who was looking after the case, was hale and healthy. The contention of the respondent is that in some other proceedings (Exs.R1 and R2), the first petitioner was personally appeared during 2010, which clearly shows that wantonly, the first petitioner has not filed the written statement in the suit, thereby allowed the suit decreed exparte. According to the respondent, the delay of 486 days cannot be condoned.
14. As far as the plea of the respondent that in Tr.O.P.No.172 of 2010, the first petitioner personally appeared before the Court is concerned, on verification of Ex.R1, I find that on behalf of the first petitioner and other respondents therein, their advocate entered appearance and there is no indication in the adjudication paper that the first petitioner was personally present in the said case on the particular date of hearing or any other date.
15. As stated supra, the suit is one for partition. On a perusal of the typed set of papers, I find that along with application to set aside the exparte decree with delay condonation petition, the first petitioner has filed the written statement for himself and on behalf of the other petitioners. On further perusal of the copy of the written statement, I find that the defendants in the suit have filed a detailed written statement resisting the suit. In fact, the defendants have contended in the written statement that the plaintiff was not having any right in any portion of the suit properties. When such being the contention in the written statement, the length of delay is not a material fact.
16. The trial Court dismissed the petition also on the ground that the reason given by the petitioners is bereft of particulars and not satisfactory. As stated supra, the respondent has not produced any rebuttal evidence to disprove the version of the petitioners.
17. In Pavayammal and another v. S.N.Chockalingam and others, reported in 2009 (5) CTC 414, it was held that liberal view has to be taken while dealing with the application for condonation of delay.
18. The objection raised by the respondent before the trial Court was that in order to protract further proceedings in the suit, the petitioners have filed the petition. To establish the same, the respondent has not produced any evidence.
19. As stated supra, the respondent has filed the suit for partition and separate possession of the suit properties. When the suit is for partition and separate possession, necessarily the defendants in the suit have to be heard by giving them an opportunity to defend the suit.
20. Holding that Section 5 of Limitation Act is to be liberally construed, in N. Balakrishnan v. M.Krishnamurthy, reported in (1998) 7 SCC 123, the Hon'le Supreme Court held thus:
"12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice . "
21. Generally delays in preferring application to condone the delay in filing the application to set aside the exparte decree are required to be condoned in the interest of justice, where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay.
22. In the present case, as noted above, delay in filing the application to set aside the exparte decree is 486 days. Length of delay is not the criteria. In appropriate cases, even the long range of delay could be condoned. Even if the trial Court has declined to condone the delay, the superior Court would be free to consider the cause shown for the delay afresh.
23. As stated supra, immediately after recovery from ill- health, the first petitioner has filed application under Section 5 of the Limitation Act to condone the delay of 486 days in filing the application to set aside the exparte decree. This Court finds that sufficient cause has been made out for condonation of delay and the trial Court has not exercised the discretion properly.
24. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words, when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court is satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.
25. Having regard to the facts and circumstances of the case and that the respondent has failed to produce any rebuttal evidence to disprove the version of the petitioners in an application seeking to condone the delay in filing the set aside application and also reasoning given by the trial Court in dismissing the application is not convincing, in my considered view, the delay of 486 days in filing the application to set aside the exparte decree has to be condoned, however, on costs.
26. In the result:
(a) The Civil Revision Petition is allowed by setting aside the order passed in I.A.No.78 of 2011 in O.S.No.96 of 2009, dated 15.11.2011 on the file of the learned Principal Sub Court, Coimbatore on condition that the petitioners should pay a sum of Rs.3,000/- (Rupees Three Thousand) as costs to the respondent within a period of two weeks from the date of receipt of a copy of this order;
(b) The trial Court is hereby directed to number the application to set aside the exparte decree filed under Or.9, Rule 13 C.P.C. and dispose of the same within a period of one month thereafter, by giving notice to both sides.
(c) On passing the order by the trial Court, the trial Court is directed to dispose of the suit within a period of two months.
24.01.2017 Note:Issue order copy on 09.05.2018 vs Index : Yes Internet : Yes To The Principal Subordinate Judge, Coimbatore.
M.V.MURALIDARAN, J.
vs C.R.P.(NPD) No.3574 of 2012 24.01.2017