The revision petitioner/petitioner/defendant has filed this civil revision petition as against the order dated 18.09.2009 in I.A.No.97 of 2009 in O.S.No.216 of 2005 passed by the learned District Munsif, Sikali in dismissing the application filed by the revision petitioner under Section 5 of the Limitation Act praying to condone the delay of 221 days in preferring the application to set aside the exparte decree dated 10.06.2008.
2.The trial Court, while passing orders in I.A.No.97 of 2009 dated 18.09.2009, has inter alia observed that 'the revision petitioner has not explained the each and every days delay (in respect of the delay of 221 days) in preferring the application to set aside the exparte decree and moreover, the application to condone the delay of 221 days is not to be allowed and resultantly, dismissed the application without costs.'
3.According to the learned counsel for the revision petitioner/defendant, the trial Court has filed to see that the petitioner/defendant has been suffering from jaundice few days prior to 10.06.2008 and that the petition for setting aside the exparte decree has been filed immediately after he recovered from the illness and therefore, the petitioner has been prevented from sufficient cause in not filing the application in time and also the fact remains that jaundice can be cured by taking native treatment and the non-production of medical certificate will not vitiate the case of the petitioner and also that the trial Court has committed an error in thinking that the application should be dismissed on the ground that the petitioner has not named the person who has treated him for jaundice and since the petitioner has been affected with jaundice, there has occasioned a delay of 221 days in filing an application to set aside the exparte decree and in short, the trial Court should have given the revision petitioner an opportunity to contest the suit on merits and if the order of the trial Court passed in I.A.No.97 of 2009 is allowed to stand as it is, then it will result in failure of justice besides causing irreparable loss and injury to the petitioner and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice.
4.The learned counsel for the revision petitioner cites the decision of this Court in T.V.Sundaram Iyengar and Sons Ltd., Salem-9 V. S.Raghunathan (2008) 2 MLJ 845 and 846 wherein it is held as follows:
"Generally a party does not stand to benefit by filing an application late and refusing to condone the delay can result in a meritorious matter being thrown out at the nascent stage and cause of justice being defeated."
"Sufficient Cause" for delay condonation must be viewed liberally."
5.He also cites the decision of Honourable Supreme Court in Mahabir Singh V. Subhash and others (2008) 1 MLJ 1214 (SC) wherein it is observed as follows:
"
Article 123 of the Limitation Act, 1963 provides for 30 days time for filing an application to set aside an ex-parte decree. Time begins to run from the date of decree or from the date when the applicant had knowledge of the decree. It is for the defendant to establish as to when he came to know about the passing of the ex-parte decree."
and submits that the principles laid down in the said case will not govern the facts and circumstances of the present case on hand before this Court.
6.He also relies on the decision of this Court in Shanmugam V. Chokkalingam 2009 (5) CTC 48 at page 49 wherein it is held that '... Even if the Court wants to construe the reason assigned by the petitioner liberally in order to give him an opportunity to contest the Suit, the laches on the part of the petitioner in not taking steps to file the Petition to set aside the ex parte decree immediately on knowing the passing of ex parte decree against him would render no assistance from the Court. Even though the delay caused in filing the Petition to set aside the ex parte decree was 332 days, it was not explained by the petitioner with sufficient cause to condone the delay as contemplated in the judgment of our Honourable Apex Court. The petitioner is seriously lacking to apply the provision of Section 5 of Limitation Act, as the affidavit filed by the petitioner before the lower Court was also vague and bereft of particulars without any explanation for period commencing from the date of passing of the ex parte decree i.e., on 12.6.2006 till the date of filing of the Petition i.e., on 9.6.2007.
In the aforesaid circumstances, I could see that the lower Court had correctly exercised its jurisdiction to dismiss the application filed by the petitioner. Therefore, I find no reason to interfere with the order passed by the lower Court.'
7.Per contra, the learned counsel for the respondent/ decree holder submits that the revision petitioner in his affidavit in I.A.No.97 of 2009 has stated that the suit has been posted for trial on 10.06.2008 and two days before 10.06.2008 he has been affected with jaundice and that he has taken native treatment and has remained bedridden in the house and he has not informed his counsel about the aforesaid details and since he has not appeared on 10.06.2008 before the trial Court and an exparte decree has been passed when the revision petitioner has been represented by his counsel and in short, the revision petitioner has not mentioned in his affidavit when he has recovered from the illness of jaundice and he has also not mentioned as to when he has instructed his counsel to file an application to set aside the exparte decree and strictly speaking the revision petitioner in his affidavit in I.A.No.97 of 2009 should specify as to the date on which he has recovered from his illness and in the present case, the same is conspicuously absent and on 11.02.2009 the revision petitioner has received the notice in execution petition for the hearing on 24.02.2009 and within 30 days therefrom he has projected the I.A.No.97 of 2009 viz., the Section 5 application and as a matter of fact, the revision petitioner has been represented by his counsel on 10.06.2009 and since there is no bonafide in the application filed by the revision petitioner, the impugned order of the trial Court passed in I.A.No.97 of 2009 dismissing the said application does not suffer from any serious infirmity or patent illegality and therefore, prays for dismissal of the civil revision petition.
8.Expatiating his submissions, the learned counsel for the respondent/decree holder submits that a Court of Law while dealing with Section 5 application under Limitation Act need not go into the merits of the case and to lend support to his contention he relies on the decision of Honourable Supreme Court in Commissioner, Nagar Parishad, Bhilwara V. Labour Court, Bhilwara and another (2009) 3 SCC at page 525 wherein it is held that 'while deciding an application for condonation of delay, the High Court ought not to have gone into the merits of the case.'
9.He also cites the decision of this Court in C.Raghupathy V. C.Govindan and others 2009 (1) CTC 319 wherein this Court has held that 'it is the duty of a client to brief Advocate and keep in touch with him and failure will amount to negligence and such party has to bear consequences and the limitation is not merely a technical consideration but is based on principals of sound public policy as well as equity and a victorious litigant cannot be expected to remain disgruntled indefinitely for the period to be determined at whims and fancies of opponent.'
10.In the counter filed by the respondent/decree holder before the trial Court (in I.A.No.97 of 2009), the respondent/decree holder has among other things stated that the revision petitioner/defendant has received the notice in execution proceedings stage and the application under Section 5 of the Limitation Act has been filed with a view to unnecessarily delay the proceedings and there is no bonafide reason mentioned in the said interlocutory application and the same is not maintainable.
11.Before the trial Court, the revision petitioner/ defendant has examined himself as P.W.1 and in his evidence has deposed that he has not taken treatment with the Alopathy Doctor and he is not remembering the name of the person under whom he has taken native treatment and that he is aware of the fact that the application has to be filed within 30 days in connection with the setting aside exparte application and that he has singed in the paper brought from his Advocate friend.
12.Further, according to the learned counsel for the revision petitioner, the principles laid down in the decision of Honourable Supreme Court in Mahabir Singh V. Subhash and others (2008) 1 MLJ 1214 (SC) and in the decision Shanmugam V. Chokkalingam 2009 (5) CTC 48 are not applicable to the facts of the present case on hand before us in this revision.
13.At this stage, this Court pertinently points out that in the decision in Mst.Nurnahar Bewa and another V. Rabindra Nath Dev and others AIR 1988 Calcutta 358, it is inter alia mentioned as follows:
"As regards the limitation for filing the aforesaid application for restoration there is no specific provision in the Limitation Act 1963 and therefore such application for restoration would be governed by
Art.137 of the Act and be filed within a period of three years as prescribed therein. Although the period of limitation for making an application for restoration of a suit dismissed for default under O.9 is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under O.9, when such Misc. Case is dismissed for default, is not governed by the provisions of Art. 122 of the Limitation Act in view of the fact that expressly in terms of the said
Art.122, the miscellaneous case arising out of an application under O.9 is not attracted.
However, the High Court observed that when the period of limitation for making an application under O.9 for setting aside an ex parte decree is only thirty days from the date of the impugned order, it is highly inequitable to allow a party to avail a long period of three years under
Art.137 of the Limitation Act to make an application under O.9 for setting aside the order of dismissal of an application made under O.9 for setting aside ex parte decree. A party in whose favour an ex parte decree has been made cannot but suffer serious prejudice if the fate of the ex parte decree is allowed to hang indefinitely for three years by allowing the other party to make an application for setting aside the order dismissing the application for setting aside ex parte decree at any time within three years. Therefore Art. 122 of the Limitation Act requires suitable amendment so as to bring the application for setting aside the order of dismissal of the application made under O.9 for setting aside ex parte decree within the scope and ambit of Art.122."
13.It is true that the term 'sufficient cause' under Section 5 of the Limitation Act will have to be construed in a liberal, meaningful and in a purposeful manner. Ordinarily an individual does not stand to benefit by projecting an application belatedly. Refusing to condone the delay may result in a meritorious matter being thrown out at the early stage and cause of justice being defeated. There is no doubt in regard to the axiomatic fact that when substantial justice and technical considerations are pitted against each other, then cause of substantial justice deserves to be preferred overriding technicalities. Equally a Court of Law ought to have a justice-oriented approach.
14.In the present case, before the trial Court the revision petitioner/defendant's Advocate has also not reported no instructions before the Court at the time of passing of the exparte decree in the suit. In this connection, this Court pertinently points out that by virtue of Order 3 Rule 1 of Civil Procedure Code the presence of party's counsel amounts to presence of party for the purposes of Order 17 Rule 3. As a matter of fact, Order 17 Rule 2 of Civil Procedure Code applies where any party has failed to appear at the hearing. While Order 17 Rule 3 of Civil Procedure Code applies when the party though present, has committed any one or more of the enumerated default as per decision in P.Janakiramaiah V. A.K.Parthasarthi and others 2003 5 SCC 641 at page 645.
15.Be that as it may, as far as the facts of the present case are concerned, the revision petitioner/ defendant in his affidavit in I.A.No.97 of 2009 has not stated as to when he has recovered from his illness of jaundice and also as to when he has instructed his counsel to file an application to set aside the exparte decree and in short, the affidavit of the revision petitioner in I.A.No.97 of 2009 is devoid of material particulars in qualitative and quantitative terms as to when he has recovered from his illness and also as to when he has instructed his counsel to file an application to set aside the exparte decree and moreover, the revision petitioner as P.W.1 himself has deposed before the trial Court in I.A.No.97 of 2009 in his cross examination that he is aware of the fact that an application to set aside the exparte decree has to be filed and in fact, the said application lacks bonafides and a Court of Law cannot allow an application filed under Section 5 of the Limitation Act in a caviler fashion displacing the valuable right that as accrued to a successful party and there is no justifiable cause on the part of this Court to exercise its discretion in regard to the condonation of delay and the civil revision petitioner has not assigned acceptable, sufficient /good cause for condonation of delay of 221 days and viewed in that perspective, the civil revision petition filed by the revision petitioner is devoid of merits and the same fails.
16.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.97 of 2009 is confirmed for the reasons assigned by this Court in this revision. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
sgl To The District Munsif, Sirkali