The order passed in I.A.No.13967 of 2008 in O.S.No.5759 of 2001 on the file of the VIth Additional Judge, City Civil Court, Chennai, is under challenge in this revision. The said application I.A.No.13967 of 2008 was filed under Section 5 of the Limitation Act to condone the delay of 2183 days in filing an application to set aside the exparte decree passed in O.S.No.5759 of 2001 dated 30.7.2003. After considering the averments in the affidavit to I.A.No.13967 of 2008 as well as in the counter filed by the respondent and after hearing the learned counsel on both sides, the learned trial Judge has dismissed, the said application on the ground that the delay has not properly been explained by the applicant, which necessitated the applicant to approach this Court by way of this revision.
2.Heard the learned counsel on both sides. A perusal of the affidavit to the petition in I.A.No.13967 of 2008 in O.S.No.5759 of 2001 will go to show that the defendant / revision petitioner herein had entrusted his case to an Advocate by name Thiru.V.Krishnan. But after filing the written statement in the suit, there was no intimation received from the said counsel Thiru.V.Krishnan in respect of the further hearing of the case and that only after the receipt of the summons in EP.No.1495 of 2008 in O.S.No.5759 of 2001 on 20.07.2008, they came to know that the suit was decreed exparte as early as on 30.07.2003. Only thereafter, they went in search of their counsel Thiru.V.Krishnan, but they could not trace him as he had already vacated his advocate office and that only on 22.07.2008 they could locate the residential address of the said counsel, who was at that time in his advanced age of 75 years and that they were informed that the said counsel was not in active practice and he had wound up his practice in August 2002 itself. This was the reasoning given in the affidavit filed by the petitioner to condone the delay of 2183 days in filing necessary application to set aside the exparte decree and Judgment in O.S.No.5759 of 2001 on the file of the VI Additional Judge, City Civil Court, Chennai.
3.The learned counsel for the revision petitioner would contend that the petitioner shall not be allowed to suffer for no fault of him. In support of this contention the learned counsel for the revision petitioner would rely on a decision of this Court in 2008(3) MLJ 268 (Adhikesavan Vs. Kalavathi). The learned counsel also relied on 1998(7) SCC 123 (N.Balakrishnan Vs. M.Krishnamurthy), wherein the ratio decidendi laid down by the Honourable Apex Court in a case of similar nature runs as follows:-
"Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
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 vide Shakuntala Devi Jain Vs. Kuntal Kumari, UMANU/SC/0335/1968 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971.
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when court condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss."
Same principle was followed by this Court in 2008(3) MLJ 268 (Adhikesavan Vs. Kalavathi). In 1981(2) SCC 788 (Rafiq and another Vs. Munshilal and another) the honourable Apex Court in a similar circumstance had held as follows:-
"After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only required but hardly useful. Therefore, the party having done everything in his power to effectively participte in the proceedings can rest assured that he has neither to got to the High Court to inquire as to what is happening in the High Court with regard to his appeal or is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job Mr.A.K.Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr.A.K.Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.
The said dictum squarely applies to the present facts of the case. I am of the considered view that the litigant cannot be allowed to suffer for the failure of his advocate to inform the hearing date of the case to him. No doubt, there is a long delay of 2183 days in preferring an application to set aside the exparte decree, which in my opinion is to be compensated with a cost of Rs.10,000/- as fairly conceded by the learned counsel appearing for the revision petitioner.
4.In fine, the Civil Revision Petition is allowed on condition the revision petitioner pays a cost of Rs.10,000/- (Rupees Ten Thousand) only to the other side within two weeks from today, failing which the Revision shall deed to have been dismissed. On compliance of this order, the learned trial Judge shall restore O.S.No.5759 of 2001 to his file and dispose of the same in accordance with law after following the formalities within three months. Further, the revision petitioner has also produced some materials to show that he has prima facie case, which are to be considered by the trial Court. Connected Miscellaneous Petition is closed.
ssv To, The VIth Additional Judge, City Civil Court, Chennai