IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.No.446 of 2009 1.A.Seyed Hakim 2.A.Seyed Ayisha 3.A.Mohamed Seyed Ummal 4.A.Mohammed Mathar Ummal 5.A.Smasath Begum 6.Sulthanul Arifean(Minor) Rep. by his mother and next friend Jailani Biwi. (All rep. by their General Power of Attorney Agent K.Mohaideen Ibrahim) .. Appellants Vs. 1.K.S.Maideen 2.A.Kulsar Begum .. Respondents Original Side Appeal filed under Order XXXVI Rule 1 of Original Side Rules and clause 15 of the Letters Patent, against the order dated 29.07.2009 made in Application No.5123 of 2008 in C.S.No.532 of 2001. This application praying that this Hon'ble Court be pleased to condone the delay of 498 days in filing the application for setting aside the exparte decree dated 19.02.2007 in C.S.No.532/2001. For Appellants : Mr.C.Manishankar For R1 : Mr.K.S.Maideen party-in-person For R2 : Given up JUDGMENT R.MALA,J. This Original Side Appeal has been arising out of the order dated 29.07.2009 made in A.No.5123 of 2008 in C.S.No.532 of 2001 and condoning the delay of 498 days in filing an application to set aside the exparte decree dated 19.02.2007 made in C.S.No.532 of 2001. https://hcservices.ecourts.gov.in/hcservices/ 2. Appellants as Plaintiffs filed a suit in C.S.No.532 of 2001 praying to set aside the sale deed dated 27.01.1999 executed by the second defendant in favour of first defendant registered as document No.203 of 1999 and for a declaration that the Appellants/Plaintiffs are the original owners having absolute title to the suit property viz., Door No.32 (Old No.25A), Muniram Pandian Lane, Old Washermenpet, Chennai-600 021 and also for permanent injunction and other consequential relief. Along with the suit, Appellants/Plaintiffs have filed application for injunction, in which, the first respondent/first defendant entered appearance. Since the first respondent/first defendant has not filed the written statement in time, the matter was placed before "Undefended Board" and exparte decree has been passed on 19.02.2007. 3.First respondent herein has filed an application in A.No.5123 of 2008 to condone the delay of 498 days in filing the application to set aside the exparte decree dated 19.02.2007, stating that he had fallen from the ladder and suffered multiple fractures in the leg and that he was initially getting treatment in Madras and later went to Puthur for further treatment and therefore, he could not contact his counsel and filed written statement in time. He has also filed an additional affidavit in the said application. 4.Strongly resisting the application, the Appellants/Plaintiffs filed counter stating that the First Respondent/Applicant was made aware of the decree dated 19.02.2007 in the appeal proceedings in R.C.A.No.152 of 2003 filed by the tenant K.Maden Mohan Bagri and having participated in the proceedings, the first respondent had chosen to abandon the proceedings. The Appellants/Plaintiffs have denied the averments in the affidavit in A.No.5123 of 2008. The Appellants/Plaintiffs further averred that the first respondent created a forged sale deed and that he is in the habit of committing such fraudulent acts and is also facing criminal prosecution and that the first respondent is squatting on the property for the past several years and he deserves no indulgence. 5. Learned single Judge after hearing the arguments of both sides counsel, allowed the application and condoned the delay on payment of cost of Rs.10,000/- to the Appellants/Plaintiffs within a period of two weeks, against which, the present O.S.A. has been preferred by the Appellants/Plaintiffs. 6.Challenging the order passed in A.No.5123 of 2008, the learned counsel appearing for the Appellants/Plaintiffs would submit that the first respondent/first defendant did not come to the Court with clean hands and not properly explained the delay of 498 days. It is further submitted that no sufficient cause has been shown for not filing the written statement and appeared before the Court. Moreover, he has filed contradict statement in his affidavit and additional affidavit. He further submitted that no document has been filed to https://hcservices.ecourts.gov.in/hcservices/ prove that he was undergone treatment during the relevant period. It is further submitted that first respondent/first defendant is having prior knowledge about the disposal of the suit and exparte decree passed on 19.02.2007. If the condone delay petition is allowed, valuable rights accrued to the Appellants/Plaintiff will be affected. Hence, he prayed for setting aside the order passed by the learned single Judge. To substantiate his argument, he relied upon the Judgments of the Apex Court and this Court. 7.Refuting the same, first respondent, who appeared in person has submitted that he has purchased the property and made construction on the ground and first floor. Eight tenants are residing along with first respondent and he has been occupying one portion. Except one tenant, all the tenants are paying their rent. Since one tenant was not paying the rent, first respondent filed an eviction petition before the Rent Controller. Hence he colluded with the Appellants/Plaintiffs and the suit has been filed. He further submitted that since he fell down from the ladder and sustained fractures in the leg and that he has undergone treatment as inpatient and also gone to Puthur for further treatment, he unable to contact his counsel and to file written statement in time. He further submitted that if the appeal is allowed, his valuable rights of the property has been affected. The learned single Judge considering all the aspects in a proper perspective passed an order in favour of him and it does not warrant any interference. Hence, he prayed for dismissal of this appeal. 8.An application has been filed by the first respondent herein under Section 5 of Limitation Act for condoning the delay of 498 days to set aside exparte decree dated 19.02.2007. Now the prayer in the plaint is important to decide the matter. Appellants herein as Plaintiffs filed a suit in C.S.No.532 of 2001, prayed for setting aside the Sale deed dated 27.01.1999 executed by the second defendant in favour of the First Defendant registered as Doc.No.203 of 1999 Book I Vol.669, pages 129 to 133 in the Office of the Sub-Registrar, Royapuram, Chennai North and other consequential reliefs. When the suit came up for hearing in the year 2001, first respondent herein has appeared through his counsel before this Court. Since he did not file the written statement, the matter was listed under the caption "Undefended Board" and subsequently, exparte decree was passed on 19.02.2007. But the application in A.No.5123 of 2008 has been filed by the first respondent on 21 November, 2008. 9.Now this Court has to consider whether there is sufficient cause to condone the delay of 498 days in filing the application to set aside the exparte decree passed against the first respondent and whether there was improper exercise of discretion warranting interference with the impugned order? https://hcservices.ecourts.gov.in/hcservices/ 10.It is true, there is a contradictory statement in affidavit and additional affidavit. In page-37 of the typed set of papers, first respondent herein as applicant stated as follows: "3.I have filed vakalath entrusting the matter to the counsel and could not contact him for further instruction. 5.The passing of the decree was known to me only when I received the notice in E.P. Nos.103 & 104 of 2008." Further, first respondent herein has filed an additional affidavit, which finds place in page-67 of the typed set of papers, in para-5, he stated as follows: "5. .. .. I had instructed my erstwhile counsel to prepare the written statement and sign the same. As a mater of fact, to my knowledge the written statement was originally prepared by my counsel and signed by me, but however, the same was misplaced and lost and not filed in Court. Only when I received the notice in the Execution Proceedings in E.P.No.103 of 2008 from this Court, I immediately contacted my erstwhile counsel and thereupon he had noticed that the written statement which was prepared and signed by me was not filed into court and consequently I had been set exparte and an exparte decree came to be passed as against me and the 2nd defendant herein. .." It is true, there is contradictory statement in his affidavit and additional affidavit. 11.At this juncture, it is appropriate on the part of us to consider the order passed by the learned single Judge. Learned single Judge in para-3 of his order, has held as follows: "3. .. .. Even with reference to the averments in respect of knowledge of the exparte decree, undoubtedly, there is some discrepancy about the date of knowledge of the exparte decree. But in any event, the applicant cannot be non-suited only on the basis of these discrepancies and it is also seen that there was change of counsel on the part of the applicant and therefore this Court is not inclined to comment upon the conduct of the counsel at this stage. .. " Learned single Judge considered this aspect in respect of knowledge of passing exparte decree and both the affidavit filed on the earlier suit and additional affidavit filed later. So we are of the view that https://hcservices.ecourts.gov.in/hcservices/ learned single Judge has given convincing reason for condoning the discrepancies made by the first respondent/Applicant in the affidavit. 12.Now this Court has to decide whether the first respondent has previous knowledge about the disposal of the case on 19.02.2007. Learned counsel appearing for the Appellants/Plaintiffs would submit that first respondent herein is a Respondent in RCA No.152 of 2003, which was filed by one K.Madan Mohan Bagri, who also filed M.P.No.120-A of 2008 in R.C.A.No.152 of 2003, for reception of additional documents. In para-4 of his affidavit, he has mentioned as follows: "(ii) Copy of the decree passed in C.S.No.532/2001 filed by Mr.Seyed Hakim and others against the respondent herein and others." But even then, first respondent herein has not filed the application in time and he has filed the same only in November 2008. Learned counsel would further take us to page-45 of the typed set of papers (i.e.) Judgment in R.C.A. No.152 of 2003 against R.C.O.P.No.692 of 2001 and M.P.No.588 of 2007 in R.C.A. No.152 of 2003 and M.P.No. 120- A of 2008 in R.C.A. No.152 of 2003, wherein para-11 is extracted hereunder: "11.The petitioner/appellant alleged in M.P.120A/2008 that subsequent to the filing of the appeal the documents cited in the petition come into existence, that the documents are necessary and essential to prove the case of the appellant. The respondent filed only memo of objections that the documents cannot be received at this stage." From the above paragraph, it is seen that the first respondent filed only memo of objections, so he had knowledge about the disposal of the suit. Even though he is having knowledge, he has not filed application in time. But there is no document to show that memo of objections filed by either the party in person or by the counsel on record and whether the party in person has signed the same. Hence, we are unable to accept the arguments advanced by the learned counsel for the Appellants that the first respondent is having prior knowledge about the disposal of the suit in the month of February 2008. Admittedly, certified copy of the memo of objections filed by the first respondent has not been filed before this Court to substantiate the same. 13.In such circumstances, we hereby consider the following decisions relied upon by the learned counsel for the Appellants. (i)2002(1) CTC 157 (Reliance Industries Ltd., rep. by Reliance Consultancy Services Ltd., v. M.Rajkumari) in para-7, it is held as https://hcservices.ecourts.gov.in/hcservices/ follows: "7. In the decision reported in Sri Veera Hanuman Rice and Flour Mill v. State Bank of India, 2000 AIR SCW 2575, the Supreme Court held that while indulgence should be shown in considering claims of parties there is no justification to ignore the subsequent facts and the realities of the situation. The laws of limitation may sometimes harshly affect the particular party. It cannot be denied while considering the matters that fall under Section 5 of the Limitation Act, discretion also has to be exercised cautiously." In the above citation, it was held that the petitioner did not move an inch to take steps to file the application to set aside the exparte decree promptly. Length of delay is no matter, acceptability of the explanation is the only criterion. If there is no support by any evidence adduced for delay, the application therefor ought to be rejected. As already stated that there is no evidence to show that the first respondent herein has knowledge about the disposal of the suit on 19.02.2007, before he received the summons in E.P.No.103 of 2008. (ii)2003-1-L.W.585 (Sundar Gnanaolivu rep. by his Power of Attorney Agent Mr.Rukmini v. Rajendran Gnanaolivu Rep. by its Power of Attorney Agent Veina Gnanaolivu) in para-19, it is held as follows: "19. .. .. We have to therefore hold that the petitioner has not come forward with clean hands while seeking for condonation of delay of more than a year and in such circumstances, the bona fides of the petitioner proved to be demonstrably lacking. Therefore, when there is total lack of bona fides on the part of the petitioner while coming forward with the present application, going by the principles set out in the various judgments referred to above, we are of the view that this case falls within the exception to the rule and does not deserve the liberal approach formula in matters relating to condonation of delay. We are therefore not satisfied with the reasons adduced by the petitioner while seeking for condonation of delay of 431 days in filing the first appeal. We, therefore decline to condone the delay and accordingly dismiss the applicatio with costs of Rs.1,000/-" Citation as referred to above is not applicable to the facts of the present case, because there is no evidence to show that the first respondent herein had knowledge about the disposal of the suit on 19.02.2007 itself. https://hcservices.ecourts.gov.in/hcservices/ 14.Now this Court has to consider whether there is any sufficient cause for condonation of delay. To explain the same, the first respondent herein has filed the documents (i.e.) Certificate of medical treatment taken by him in page Nos.1 to 23 of his typed set of papers, to show that from 31.01.2007 to 16.07.2008, he has undergone allopath treatment as well as native treatment at Puthur. But admittedly, he has filed only certificates issued to him. But it is well settled principle of law that the documents to be proved in accordance with law by examining the author of the documents. At this juncture, it is pertinent to note that the first respondent herein neither got into the box before the learned Single Judge nor filed those documents before the learned Single Judge. Only at the part heard stage of this appeal, he has come forward with these documents. Since the documents are not proved in accordance with law, we are not in a position to rely upon the documents. Furthermore, he has not filed any x-ray or prescription given by the Doctor during the relevant time. So we do not want to comment upon the document relied upon by the first respondent herein and no reliance can be placed on the documents. 15.First respondent herein has engaged a counsel, but he has not filed any written statement before this Court. Hence it was posted before the undefended Board. Then only, exparte decree has been passed on 19.02.2007. 16.At this juncture, it is appropriate for us to consider the following decisions relied upon by both sides. (i) AIR 1962 Supreme Court 361 (Ramlal and others v. Rewa Coalfields Ltd.) in para-7, portion of para-12 and portion of para- 15, it is held as follows: "7.In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree- holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice... .." https://hcservices.ecourts.gov.in/hcservices/ 12.It is, however, necessary to emphasise 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 S. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under S. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. .. .. 15. .. .. The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. .. .. " The Apex Court held that the proof of a sufficient cause is a condition precedent for exercise of the discretionary jurisdiction vested in the Court by Section 5 of Limitation Act. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it https://hcservices.ecourts.gov.in/hcservices/ is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. (ii) AIR 1997 SC 1390 (State of Bihar and others v. Subhash Singh) in para-5, it is held as follows: "5. .. It is known fact that in transaction of the Government business, none would own personal responsibility and decisions are leisurely taken at various levels. It is not uncommon that delay would be deliberately caused in filing appeal or revision by Government to confer advantage to the opposite litigant; more so when stakes involved are high or persons are well connected/influential or due to obvious considerations. The Courts, therefore, do not adopt strict standard of proof of every day's delay. .. .." (iii) AIR 1996 SC 2750 (Special Tahsildar, Land Acquisition, Kerala v. K.V.Ayisumma) in para-2, it is held as follows: "2.It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice, it would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedandic. Under those circumstances, the Subordinate Judge had rightly adopted correct approach and had condoned the delay without insisting upon explaining every day's delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside https://hcservices.ecourts.gov.in/hcservices/ the order. Delay was rightly condoned." In the above decisions, it was held that transaction of business of Government being done leisurely by Officers, who had no or evince no personal interest at different levels. Insistence upon explaining every days' by Court would be improper. Hence, the citations reported in AIR 1997 SC 1390 (cited supra) and AIR 1996 SC 2750 (cited supra) can not give assistance to the appellant herein. (iv)(2010) 8 SCC 685 ( Balwant Singh (Dead) v. Jagdish Singh and others) in which, it is held that it cannot be disputed that the onus to show that sufficient cause exists for condonation of delay lies upon the applicant. It is obligatory upon the applicant to show sufficient cause due to which he was prevented from continuing to prosecute the proceedings in the suit or before the higher Court. There is no quarrel over the proposition. (v) (2011) 4 SCC 363 (Lanka Venkateswarlu (dead) by Lrs. v. State of Andhra Pradesh and others) in which, it is held that condonation of delay of 3703 days in bringing on record of legal heirs of deceased respondent. Therefore, the above citation is not applicable to the facts of the present case. (vi) (2008) 8 SCC 321 (Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by Lrs. and others) in which, it is held as follows: "(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' is Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant. (vii) (2010) 8 SCC 685 ( Balwant Singh (Dead) v. Jagdish Singh and others) in which, it is held as follows: "Ratio Decidendi: "The expression 'sufficient cause' for condonation of delay implies presence of legal and adequate reasons." 16.On perusal of affidavit and arguments of the first respondent would show that there is sufficient cause for non appearance on 19.02.2007. Due to his ill-health, he