This Civil Revision Petition is directed against the order dated 26.2.2013 passed in I.A.No.356 of 2012 in O.S.No.262 of 2008 on the file of the learned I Additional Subordinate Judge, Coimbatore.
2. The petitioner is the second defendant and the respondent is the plaintiff in the suit. The plaintiff has filed the suit against the defendants for recovery of a sum of Rs.3,33,000/- with subsequent interest at the rate of 24% per annum from the date of the suit till the date of realisation.
3. The petitioner had filed I.A.No.356 of 2012 under Section 5 of the Limitation Act seeking to condone the delay of 423 days in filing application to set aside the ex parte decree alleging that immediately after the receipt of suit summons, he had engaged a counsel to appear on behalf of him and also given instructions to prepare written statement. He was under the bona fide impression that the suit is still pending and necessary steps have been taken by his counsel to contest the suit on his behalf. It is averred that to his shock and surprise, the petitioner received notice in E.P.No.178 of 2011 seeking for execution of the decree passed in the suit. It was only then, the petitioner came to know that in the suit an ex parte decree was passed on 20.9.2010. Immediately, the petitioner contacted his counsel and enquired and the counsel informed that the case bundle was misplaced in his office and he would inform as to what had happened when the bundle was traced out. On 11.12.2011, when the petitioner again met his counsel, he informed that the suit was decreed ex parte on 20.9.2010. The counsel further informed that he wrote a letter to him informing the ex parte decree passed in the suit. It is averred that the petitioner did not receive any communication from his counsel and he was totally unaware of the proceedings till he received notice in E.P.No.78 of 2011. Hence, the petitioner had filed the petition to set aside the ex parte decree along with delay condonation petition to condone the delay of 423 days in filing the petition to set aside ex parte decree by engaging a new counsel. The delay is neither wilful, nor wanton.
4. Resisting the petition, the respondent filed counter stating that both the defendants appeared through their counsel and on 5.8.2010, the suit was taken up for trial and P.W.1 was examined in chief. Since the counsel appearing for the first respondent reported no instruction, he was called absent and set ex parte and the suit was posted for cross-examination of P.W.1 by the second defendant on 13.8.2010 and after several adjournments, the suit was finally posted on 20.9.2010 for cross-examination by the second defendant. On that date, neither the second defendant, nor his counsel appeared and the suit was decreed ex parte. It is stated the respondent had filed E.P.No.78 of 2011 for execution of the decree, wherein the petitioner had entered appearance on 13.10.2011 and took time and now the Execution Petition was posted for enquiry on 29.1.2013. It is also stated that the petitioner was very well knew the ex parte decree passed in the suit, but he did not file application to set aside the ex parte decree immediately. Only to protract the proceedings, the petitioner has filed the petition to set aside the ex parte decree along with delay condonation petition. The delay of 423 days has not been properly explained by the petitioner.
5. Upon consideration of the rival submissions, the trial Court declined to condone the delay and dismissed the petition. Aggrieved by the same, the petitioner had filed the present Civil Revision Petition.
6. I heard Mr.R.Bharath Kumar, learned counsel for the petitioner and also perused the materials available on record.
7. The learned counsel for the petitioner submitted that the plaint averments relate to the dispute between the respondent and the first defendant and even assuming that the suit claim is proved, the first defendant alone is liable to pay the sum claimed by the respondent. He would submit that the petitioner was under the bona fide impression that his counsel would take care of the matter, but on the contrary, his previous counsel failed to appear and allowed the suit decreed ex parte. When the petitioner met his counsel, he simply stated that he wrote a letter to him informing the dismissal of the suit. According to the learned counsel, the petitioner had not received any letter from his previous counsel and only after the receipt of notice in the Execution Petition, he knew the ex parte decree passed in the suit and immediately, he engaged another counsel and filed petitions to set aside ex parte decree and the delay condonation petition. The learned counsel further submitted that the trial Court failed to see the hardship that would be caused to the petitioner while dismissing the application for condonation of delay and the trial Court ought not to have adopted hyper technical view to dismiss the application to condone the delay and prayed for setting aside the same.
8. The grievance of the petitioner is that earlier he had engaged a counsel to appear on behalf of him before the trail Court and also given instruction to file the written statement. While so, the learned counsel who entered appearance has failed to follow up the proceedings and allowed the suit decreed ex parte and in fact, passing of ex parte decree was also not intimated to the petitioner. When the petitioner received notice in the Execution Petition only, he knew about the ex parte decree passed in the suit. Immediately, he engaged another counsel and filed petition to set aside the ex parte decree with a delay of 423 days.
9. In the case on hand, ex parte decree was passed in the suit on 20.9.2010 and the petitioner had filed the petition to set aside the ex parte decree on 17.12.2011 with a delay of 423 days. The reason for the delay, according to the petitioner is, when he met his counsel, he informed that the bundle has been misplaced in the office and as and when the bundle was traced out, he will inform the stage of the suit. Again on 11.12.2011, when the petitioner met his counsel, he informed that the suit was decreed ex parte as early as on 20.9.2010 and thus, the petitioner came to knew the ex parte decree only on 11.12.2011 and immediately, he engaged a fresh counsel and filed petitions. According to the petitioner, the delay is neither wilful, nor wanton. Thus, the cause for the delay in filing petition to set aside the ex parte decree has been properly explained by the petitioner in his affidavit. To rebut the same, the respondent has not filed any materials.
10. At the out set, it is to be noted that the respondent had filed the suit for recovery of money on the basis of the breach of contract committed by the first defendant, who is the owner of the suit property. In the plaint, the plaintiff has categorically stated that the second defendant, the petitioner herein, was a Civil Engineer and he was engaged for construction work in the suit property. Prima facie, it appears that there was no contract between the plaintiff and the petitioner.
11. According to the petitioner, since the entire suit averments relate to the dispute between the respondent and the first defendant and the suit was decreed ex parte both against the petitioner and the first defendant and also taking advantage of the decree against both the defendants, the respondent had filed Execution Petition against the petitioner for arrest. According to the petitioner, since the petitioner is a builder, he is not at all liable to pay a single pie to the respondent and the decree directing both the defendants to satisfy the suit claim is without jurisdiction and patently illegal.
12. There is some force in the submission of the learned counsel for the petitioner. However, the same cannot be decided in this proceedings and it is for the trial Court to decide the same in accordance with law and this Court don't want to deal with the merits of the suit in this Civil Revision Petition. This Court is concerned with whether the petitioner has shown sufficient cause for the delay and as stated supra, the petitioner has shown sufficient cause for the delay of 423 days in filing the petition to set aside the ex parte decree.
13. In State of Haryana v. Chandra Mani and others, reported in 1996(II) CTC 109, the Hon'ble 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.
14. 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.
15. 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.
16. Generally delays in preferring application to condone the delay in filing the petition to set aside the ex parte decree/restore the suit 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. In the case on hand, the respondent had failed to prove that only with a view to drag on the proceedings, the petitioner had filed the petition. Moreover, the reason for delay given by the petitioner is satisfactory.
17. 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.
18. The trial Court without taking note of the sufficient cause put forth by the petitioner had arrived at a conclusion that the delay condonation petition was filed to avoid the Execution Petition. Admittedly, there is no basis to arrive at such a conclusion. On the other hand, as stated supra, the petitioner has shown sufficient cause for the delay in filing petition to set aside the ex parte decree dated 20.9.2010. Therefore, the order of the trial Court is liable to be set aside and petition seeking to condone the delay of 423 days in filing petition to set aside the ex parte decree stands allowed, however, subject to payment of cost to the respondent.
19. In the result:
(a) the Civil Revision Petition is allowed and the order of the trial Court dated 26.02.2013 passed in I.A.No.356 of 2012 in O.S.No.262 of 2008 is set aside;
(b) the delay of 423 days in filing the petition to set aside the ex parte decree passed in O.S.No.262 of 2008 would be condoned on payment of cost of Rs.10,000/- (Rupees Ten Thousand) to the respondent within a period of three weeks from the date of receipt of a copy of this order;
(c) on payment of such cost and allowing the petition in I.A.No.356 of 2012, the learned I Additional Subordinate Judge, Coimbatore is directed to admit the petition under Order IX Rule 13 C.P.C to set aside the ex parte decree passed in O.S.No.262 of 2008 on file and dispose of the same in accordance with law. Consequently, connected miscellaneous petition is closed.
22.02.2017 Note:Issue order copy on 26.09.2018 vs Index : Yes To The I Additional Subordinate Judge, Coimbatore.
M.V.MURALIDARAN, J.
vs C.R.P.(NPD) No.2677 of 2013 and M.P.No.1 of 2013 22.02.2017