This Civil Revision Petition is directed against the order dated 8.3.2012 passed in I.A.No.1839 of 2010 in O.S.No.180 of 2006 on the file of the Principal District Munsif Court, Ulunthurpet, dismissing the petition filed by the petitioner to condone the delay of 1333 days in re-presenting the petition to set aside the ex parte decree.
2. The petitioner is the defendant and the respondent is the plaintiff in the suit. The respondent filed the suit for recovery of money and the same was decreed ex parte on 13.2.2007.
3. The petitioner had filed I.A.No.1839 of 2010 under Section 5 of the Limitation Act seeking to condone the delay of 1333 days in re-presenting the petition filed under Order 9, Rule 13 C.P.C. alleging that since he was suffering piles, the petitioner was not able to attend the Court on 13.2.2007 when the suit was posted for cross-examination of the plaintiff and ex parte decree was passed against the petitioner. After taking treatment, the petitioner met with his counsel and filed petition to set aside the ex parte decree on 12.3.2007 and the same was returned by the Court for rectification of certain defects. Since the returned petition was mixed up with other bundles in the advocate office, the same was not re-presented in time. It is averred that based on the ex parte decree, the respondent filed Execution Petition wherein she sought attachment of salary for realisation of the decree amount. In the Execution Petition, the petitioner entered appearance through his advocate and after a thorough search, he traced out the returned petition and thereafter re-presented the same with a delay of 1333 days. Therefore, the delay is neither wilful, nor wanton. Hence, prayed for condonation of the delay.
4. Resisting the petition, the respondent filed counter stating that apart from the present suit, there were other civil and criminal proceedings pending against the petitioner and he was regularly attending in those proceedings. In order to prevent the respondent from realising the decree amount, the petitioner has filed the present petition. The reason for the delay has not been properly explained by the petitioner and hence, prayed for dismissal of the petition.
5. Before the trial Court, the petitioner examined himself as P.W.1. No document was marked on the side of the petitioner. No oral and documentary evidence on the side of the respondent.
6. Upon consideration of the rival submissions, the trial Court dismissed the petition. Aggrieved by the same, the petitioner has filed the present revision.
7. I heard Mr.S.Saravanakumar, learned counsel for the petitioner and M/s.R.Meenal, learned counsel for the respondent and also perused the materials available on record.
8. The learned counsel for the petitioner submitted that the trial Court has failed to consider that the petitioner was not able to attend the Court on 13.2.2007 only due to medical reason and also it has failed to consider that the petitioner had filed the petition to set aside the ex parte decree in time. He would submit that since the returned petition seeking to set aside the ex parte decree was misplaced with some other bundles in the advocate office, he could not represent the same in time and the delay is neither wilful, nor wanton. In fact, the petitioner has made every efforts in tracing the mixed up petition in the advocate office and thus, prayed for setting aside the order of the trial Court.
9. Per contra, the learned counsel for the respondent submitted that the trial Court was right in dismissing the petition as there was no convincing reason for the delay and further, each and every day delay has not been properly explained by the petitioner. She would submit that in order to prevent the respondent from realising the decree amount, the petitioner has filed the petition and therefore, there is no need to interfere with the order of the trial Court.
10. The point that arises for consideration is whether the trial Court was right in dismissing the petition seeking to condone the delay of 1333 days in re-presenting the petition filed under Order 9, Rule 13 C.P.C.
11. In the case on hand, ex parte decree was passed in the suit on 13.2.2007 and the petitioner had filed the petition to set aside the ex parte decree on 12.3.2007. However, the same was returned by the Court pointing out certain defects by giving 10 days time for re-presentation of the petition. Since the returned petition was mixed up with the other bundles in the advocate office, the petitioner could not able to represent the same within the stipulated time and that a delay of 1333 days occurred.
12. The petitioner examined himself as P.W.1 and deposed the reason for the delay. To rebut the same, the respondent has not adduced any oral evidence. The trial Court dismissed the petition mainly on the ground that the petitioner was lethargic in re-presenting the petition and the reason for the delay stated by the petitioner was incorrect.
13. This Court is concerned with whether the petitioner has shown sufficient cause for the delay in re-presenting the petition to set aside the ex parte decree.
14. In State of Haryana v. Chandra Mani and others, reported in 1996(II) CTC 109, the Supreme Court held thus:
11. ....... The expression sufficient cause should therefore, be considered with pragmatism in injustice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the causelaid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. ...... it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.
15. Under Section 5 of the Limitation Act, it is only sufficiency of the cause that matters and not the length and breadth of the delay. While dealing with the Section 5 application, the question of diligence or bona fides are to be considered.
16. It is settled law that length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.
17. Generally delay in re-presentation of the petition is 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. In the case on hand, the respondent had failed to prove that only with a view to drag on the proceedings and/or to prevent the respondent from realising the decree amount, the petitioner had filed the petition. Moreover, it is only a re-presentation delay and the reason for delay given by the petitioner is satisfactory.
18. 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, if 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.
19. The trial Court, instead taking note of the sufficient cause explained by the petitioner, it has arrived at a conclusion that the petitioner was lethargic in re-presenting the petition in time and also the reason for the delay was not acceptable. Admittedly, there is no basis to arrive at such a conclusion as there was no rebuttal evidence by the respondent. On the other hand, as stated supra, the petitioner has shown sufficient cause for the delay in re-presenting the petition to set aside the ex parte decree dated 13.2.2007. Therefore, in the interest of justice, the order of the trial Court is liable to be set aside and petition seeking to condone the delay of 1333 days in re-presenting the petition to set aside the ex parte decree stands allowed, however, subject to payment of cost to the respondent.
20. In the result, the Civil Revision Petition is allowed by setting aside the order dated 8.3.2012 passed in I.A.No.1839 of 2010 on condition that the petitioner should pay a sum of Rs.3,000/- to the respondent within a period of two weeks from the date of receipt of a copy of this order. The trial Court is directed to number the set aside application and dispose of the same within a period of 15 days thereafter and on passing order in the set aside application, the trial Court is directed to dispose of the suit within a period of three months, thereafter without giving any adjournment to either parties. Both the parties are hereby directed to co-operate for early disposal of the suit. Consequently, connected miscellaneous petition is closed.
31.01.2017 vs Note:Issue order copy on 03.10.2018 Index : Yes To The Principal District Munsif, Ulunthurpet.
M.V.MURALIDARAN, J.
vs C.R.P.(NPD) No.1835 of 2012 and M.P.No.1 of 2012 31.01.2017