IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07.03.2017 CORAM:
THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR CRP(NPD)No.3697 of 2016
and C.M.P.No.18779 of 2016
Viji @ Vijayalakshmi ... Petitioner vs Rajendran ... Respondent Prayer: Civil Revision Petition is filed under Section 115 of the Civil Procedure Code against the order dated 05.02.2016 made in I.A.No.1140 of 2015 in O.S.No.178 of 2013 on the file of the District Munsif, Nagapattinam.
For Petitioner : M/s.P.Gnana Sekaran For Respondent : Mr.S.Sadasivam
O R D E R
According to the learned counsel for the petitioner, the respondent herein has filed the suit in O.S.No.178 of 2013 before the District Munsif Court, Nagapattinam for recovery of possession and mesne profits.
2. The Revision petitioner appeared through an Advocate and the matter was posted for filing written statement on 06.12.2013. The petitioner did not file the written statement on the hearing date. Subsequently, an ex-parte decree was passed on 18.02.2014. Subsequent to the said ex-parte decree passed by the Court below, the petitioner received summons in the Execution Petition filed by the respondent / plaintiff. Immediately, on receipt of the said summons, the petitioner engaged a counsel and thereafter, applied for copy of the order. The said absence and non-filing of the written statement is due to the above said bona-fide reasons. Hence, the petitioner filed the Interlocutory Application No.1140 of 2015 in the aforesaid suit for condoning the delay of 518 days. But, without considering the bona-fide reasons stated by the petitioner, the said application was dismissed by the Court below. Hence, the petitioner has preferred the present Revision Petition before this Court.
3. On the contrary, learned counsel for the respondent, denying the averments in the affidavit would submit that though the petitioner appeared through an advocate, he did not contest the case. Hence, an ex- parte order was passed on 18.02.2014. The petitioner received the notice in the Execution Petition on 02.02.2015 itself and appeared through advocate. Even after receiving the summons in the Execution Petition, there was inordinate delay in filing the present application. Therefore, the order passed by the Trial Court is sustainable.
4. Heard both sides and perused the material on record.
5. It is admitted that the ex-parte decree was passed on 18.02.2014. Based on the ex-parte decree, the respondent filed the Execution Petition in E.P.No.01 of 2015 before the Court below and summons were received by the Revision Petitioner on 02.02.2015 and so he appeared through an advocate. The contention of the petitioner is that the petitioner has handed over the case bundle to a new counsel after the summons received in the Execution Petition. Therefore, there is no wilful intention on the part of the petitioner for non appearance before the Court below on the date of hearing. It is only due to the bona-fide reasons, the petitioner could not file the Written Statement. However, there is an inordinate delay in filing the application to set aside the ex-parte decree, after receipt of the notice in the Execution Petition.
6. Considered the relief as prayed for in the suit filed by the respondent for recovery of possession and mesne profits. In the decision of the Hon'ble Supreme Court reported in 2013 (5) CTC 547 (Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others), in para 15, the Supreme Court has given some guidelines has been issued, which is extracted as follows:
“.....15. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) Th terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude...”
7. Considering the contention of the petitioner that on receipt of the summons from the Execution Court, the petitioner has engaged a new counsel and has handed over the case bundle and thereafter he has filed the certified copy of the order and following the aforesaid judgment of the Hon'ble Supreme Court, this Court inclined to condone the delay by setting aside the ex-parte decree.
8. In the light of the decision of the Hon'ble Supreme Court, there should be liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis. Therefore, in view of the above said decision laid down by the Hon'ble Supreme Court, I have no hesitation to set aside the order passed in I.A.No.1140 of 2015, however, by imposing heavy cost to the petitioner, for condoning the delay in setting aside the exparte decree.
9. In the light of the above facts and circumstances, and taking note of the decision of the Hon'ble Supreme Court cited supra, this Court is inclined to pass the following order:
i) the order passed by the District Munsif Court, Nagapattinam, in I.A.No.1140/2015 in O.S.No.178 of 2013 dated 05.02.2016 is set aside, on payment of costs of Rs.15,000/- (Rupees fifteen thousand only) to the respondent, within a period of 10 days from the date of receipt of a copy of this order.
ii) If the said condition has been complied and in the event of filing an application under Order 9 Rule 13 of Civil Procedure Code, the Trial Court is directed to dispose of the suit as expeditiously as possible, preferably within a period of six months therefrom.
10. The Civil Revision Petition is allowed on above terms. List the matter on 27.03.2017, for reporting compliance.
07.03.2017 pvs Note: Issue order copy on 16.03.2017 To The District Munsif, Nagapattinam
D. KRISHNAKUMAR, J.,
pvs
CRP(NPD)No.3697 of 2016 and C.M.P.No.18779 of 2016
07.03.2017