IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 CRP.No. 368 of 2011() --------------------- CMA.34/2010 of DISTRICT COURT,THODUPUZHA .................... REVISION PETITIONER(S): APPELLANTS/PETITIONERS/PLAINTIFFS: ----------------------------------------------------------------------------------------------------- 1. GREEN PALACE RESORTS AND HOTELS (INDIA) PRIVATE LTD, CHINNAR, ELAPPARA P.O., ELAPPARA VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT REPRESENTED BY ITS MANAING DIRECTOR. 2. K.B.VIJAYAN, AGED 53 YEARS, S/O.BHASKARAN,PUTHENPURACKAL HOUSE, CHINNAR KARA,CHINNAR PO, ELAPPARA VILLAGE, MANAING DIRECTOR, GREEN PALACE RESORTS AND HOTELS (INDIA) PRIVATE LTD. BY ADVS. SRI.T.V.GEORGE, SRI.JIMMY GEORGE (THADATHIL). RESPONDENT(S): RESPONDENT/DEFENDANT: ------------------------------------------------------------------------ RAJAMMA DEVARAJAN, W/O.DEVARAJAN, PUTHENPURACKAL HOUSE, CHINNAR P.O, ELAPPARA VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT-685 501. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.368 of 2011 --------------------------------------- Dated this 19th day of August, 2011 ORDER Plaintiffs filed O.S.No.13 of 2001 in the Court of learned Sub Judge, Kattappana (as the case number shows, in the year 2001) for a decree for prohibitory injunction against respondent/defendant acting as Managing Director of the first petitioner, company. According to the petitioners, respondent had resigned as Managing Director of the said company on 10.03.2000 which was accepted by (first petitioner) company on 10.08.2000. The second petitioner was then appointed as Managing Director. Respondent resisted the suit on various grounds. The suit came up for trial in the list on 20.03.2003 but for absence of petitioners and counsel the suit was dismissed for default. Petitioners filed I.A.Nos.440 and 443 of 2009 on 08.04.2009 requesting to restore the suit and to condone the delay of 2180 days. In the affidavit in support of that application it was claimed by petitioners that the second petitioner was out of India in connection with business affairs from 03.01.2003 till 11.03.2009, only after he returned to India he learned about dismissal of the suit on 20.03.2003 and hence the delay. The C.R.P.No.368 of 2011 -: 2 :- applications were resisted by the respondent on various grounds including that it is not correct to say that second petitioner was out of India as claimed by the petitioners, instead, during the time between 03.01.2003 and 11.03.2009 second petitioner was very much available at his native place. It was also contended that during the said time the second petitioner had filed application to set aside the ex parte decree in O.S.No.141 of 2004, filed O.S.No.68 of 2005 and preferred a claim petition in E.P.No.61 of 2006. Learned Sub Judge found no sufficient cause for the delay and dismissed the applications. That was confirmed by the learned District Judge in C.M.A.No.34 of 2010. The judgment of learned District Judge, Thoudpuzha confirming the order passed by the learned Sub Judge is under challenge. 2. It is contended by learned counsel that there was sufficient cause for the second petitioner to be absent in Court when the case was called up for trial on 20.03.2003. The expression 'sufficient cause' must be given a liberal interpretation to advance the case of justice. It is pointed out by learned counsel that if the suit is restored to file, ultimately it is for the Court to decide the case on merit and by that, no prejudice will be caused to the respondent. Learned counsel has C.R.P.No.368 of 2011 -: 3 :- invited my attention to the contention that respondent has raised as Managing Director of the first petitioner. Learned counsel has made a fervent plea that an opportunity may be given to the petitioners to prosecute the case. 3. No doubt the various decisions say that the expression 'sufficient cause' must receive a liberal interpretation but that is to advance the case of justice. The expression 'sufficient cause' occurring in Sec.5 of the Limitation Act (for short, "the Act”) cannot be stretched to such an extent that the law of limitation itself became otiose. I must bear in mind the principle behind enacting the law of limitation that, “Interest, Reipublicae, ut sit finis litium” (It is for the interest of the State that there should be an end to litigation) and the principle governing the issue “vigilantibus, non dormientibus, jura subveniunt” (the law assist those who are vigilant, not those who sleep over their rights).”. 4. The Supreme Court in Ramlal and Ors. Vs. Rewa Coalfields Ltd. (AIR 1962 SC 361) has held, referring to the scope of exercise of discretionary jurisdiction under Sec.5 of the Act that, C.R.P.No.368 of 2011 -: 4 :- “it is however, necessary to emphasis that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Sec.5”. 5. It is clear from the phraseology used in Sec.5 of the Act that only when sufficient cause is shown, the Court “may” condone the delay. Therefore, for the exercise of discretionary jurisdiction it is incumbent on petitioners to show that there was 'sufficient cause' for not filing application for restoration on time. 6. Here, the delay involved is 2180 days, ie, more than six and half years. The claim is that second petitioner, Managing Director was at Dubai from 03.01.2003 to 11.03.2009. True, he stated so as PW1 and in support, produced Ext.A1, a notary attested photocopy of his passport. Though, respondent has a contention that petitioner owns more than one passport, that does not appear to have been established. Therefore, I proceed on the assumption that the second petitioner was out of India from 03.01.2003 to 11.03.2009. 7. But, it is difficult to believe that if the second petitioner was the Managing Director of the first petitioner, C.R.P.No.368 of 2011 -: 5 :- company that company functioned without a Managing Director from 03.01.2003 to 11.03.2009. Reason persuades me to think that there must have been somebody in the office of Managing Director discharging functions of second petitioner if he were a Managing Director (I say so because the respondent does not admit the status of second petitioner as Managing Director of the first petitioner). If that be so, that person was competent and should have filed application for restoration of the suit on time. PW1 also was candid in his admission that during the time he was abroad he did not even contact his counsel and enquire about the case. It is not as if technology during the period was so bad that he could not have contacted his counsel even sitting abroad, learned about the stage of the case and given proper instruction to the counsel and the person who was (allegedly) holding his charge in the first petitioner. 8. I do not find any justification to accept the explanation offered by petitioners. I am satisfied that petitioners have not shown sufficient cause for the huge delay. Learned Sub Judge found that there was no sufficient cause shown for the huge delay. If that be so, question of exercise of discretionary jurisdiction to condone the delay and to set aside dismissal of the C.R.P.No.368 of 2011 -: 6 :- suit does not arise. I must also bear in mind the right of respondent who got a termination of the litigation against her, be it in the form of a dismissal for default on 20.03.2003 cannot be lightly taken away for the mere asking. This civil revision is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-