IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.01.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.1810 of 2004 and C.M.P.No.13645 of 2004 Thangavel ... Petitioner/Defendant Vs. Subash ... Respondent/Plaintiff Prayer: Petition filed under Section 115 of the Code of Civil Procedure, against the order and decreetal order dated 24.11.2003 made in I.A.No.269 of 2003 in O.S.No.36 of 1999 on the file of the Sub Court, Cheyyar, Thiruvannamalai District. For Petitioner : Mr.S.Umapathy For Respondent : Mr.V.Meenakshi Sundaram O R D E R The civil revision petitioner is the defendant in O.S.No.36 of 1999 on the file of the Sub Court, Cheyyar, Thiruvannamalai District. 2.The revision petitioner/applicant/defendant has filed an I.A.No.269 of 2003 in O.S.No.36 of 1999 under Section 5 of the Limitation Act praying to condone the delay of 460 days in setting aside the exparte decree dated 11.03.2002. In the application filed by the civil revision petitioner/applicant in I.A.No.269 of 2003, the applicant has inter alia averred that, during August Amin from Court giving summons directing him to appear in Court on 05.09.2002 and that the next day, he went to Bangalore for eking his livelihood and he suffered jaundice and took native treatment and that the said treatment continued and that after meeting his counsel, he came to know that the matter was posted to 11.02.2002 and thereafter, an exparte decree was passed and therefore, he could not file an application in time and there was a delay of 460 days in filing the application to condone the delay. https://hcservices.ecourts.gov.in/hcservices/ 3. The respondent/plaintiff in the counter has taken a specific plea that on 11.03.2002, an exparte order was passed and till 05.09.2002, the petitioner was in station and there is no explanation on the side of the civil revision petitioner as to why he could not appear during the period from 11.03.2002 till 05.09.2002 and therefore, the application is false and not maintainable in law. 4.The learned Subordinate Judge, Cheyyar has dismissed I.A.No.269 of 2003 without costs on 24.11.2003 inter alia observing for each and every days delay under Section 5 of the Limitation Act and explanation has to be furnished and that the reasons assigned by the revision petitioner/applicant in his application are not acceptable etc. 5.No doubt the revision petitioner/applicant has not produced any evidence to show that he suffered from jaundice. It transpires that as against the revision petitioner/defendant in E.P.No.77 of 2002 an order of arrest was issued and the same is pending for long time, as observed by the learned trial Judge in his order in I.A.No.269 of 2003 dated 24.11.2003. Furthermore, the learned trial Judge has observed that in I.A.No.269 of 2003 in O.S.No.36 of 1999 for the revision petitioner/applicant's Advocate Thiru.R.Manivannan has filed Vakalat and appeared and before that for the civil revision petitioner/applicant already Thiru.P.Chandran appeared and that the revision petitioner has not obtained said Advocates' consent and filed new Vakalat and the revision petitioner for every occasion is in the habit of engaging different counsels with a view to drag on the case. Earlier on 17.07.1996, an exparte decree was passed against the revision petitioner/applicant and an I.A.No.204 of 1996 was filed by the revision petitioner/applicant and by means of an order dated 25.04.1997, the said exparte decree dated 17.07.1996 was set aside by the trial Court and again the case was taken up for trial. Later on the revision petitioner/applicant did not appear on 11.03.2002 and onceagain an exparte decree was passed against him. 6.It is to be pointed out that a party does not stand to benefit by not appearing before the Court and refusing to condone the delay can result in a good case being thrown out at the earliest stage and cause of justice being defeated. As against this, when delay is condoned, highest that can happen is that a cause would be decided on merits after hearing the parties. The term "Every days delay should be explained" should not be viewed in a pedantic way, and the approach of the Court must be in a common pragmatic manner, in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/ 7.Furthermore, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claimed to have vested right any injustice being done because of a non deliberate delay. As a matter of fact, a litigant does not stand to benefit by adopting dilatory tactics. On the contrary, he runs a serious risk it can be said that judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so. 8.As far as the present case is concerned, the reasons assigned by the revision petitioner/applicant after receipt of summons from the Court Amin, he went to Bangalore for eking his livelihood and there he suffered jaundice and took treatment etc. Even though or not, satisfactory and cannot be accepted at the face value yet the factum of non production of any evidence for jaundice and not producing the certificate for medical treatment as to his said illness or treatment affecting the case of the revision petitioner in entirety. At the same time, one cannot ignore the fact that prior to 11.03.2002, as against the civil revision petitioner, there was an exparte decree passed on 17.07.1996 and the same was set aside on 25.04.1997, in the orders passed in I.A.No.204 of 1996. Therefore, it is evident that the revision petitioner/applicant/defendant is not efficaciously and diligently conducting the proceedings before the trial Court. 9.Admittedly, the suit laid by the respondent/plaintiff is for recovery of a sum of Rs.32,358.25/- based on a pro-note made-over by the Rama Gounder in favour of the plaintiff on 15.05.1994 for due consideration and the said borrowal is stoutly denied by the revision petitioner/defendant in the written statement for the various reasons assigned therein. Generally, in a delay condonation matters, a liberal view is to be taken by Courts of law and there is no hard and fast rule or straight jacket formula in this regard. However, the cost will be the penalty/compensation. No wonder the length of delay is immaterial. 10.Inasmuch as the substantial justice will have to be meted out to the parties overriding the technical considerations, this Court having regard to the facts and circumstances of the case, allows the civil revision petition with a condition that the civil revision petitioner shall remit a sum of Rs.600/- towards costs to the Tamil Nadu Mediation and Conciliation Centre, Chennai within a period of two weeks from the date of receipt of a copy of this order and produce the https://hcservices.ecourts.gov.in/hcservices/ receipt before the Registry failing which, the civil revision petition shall stand dismissed automatically without any further reference. Since the original suit is of the year 1999, the trial Court is directed to dispose of the same within a period of four months from the date of receipt of a copy of this order. In the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, connected miscellaneous petition C.M.P.No.13645 of 2004 is closed. Jbm Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Subordinate Judge, Cheyyar, Thiruvannamalai District. 2. The Record Keeper, VR Section, High Court, Madras. 3. The Secretary, Tamil Nadu Mediation and Conciliation Centre, Chennai. + 1 cc to Mr. S. Umapathy, Advocate in SR No. 2367 KSJ(CO) SR/28.1.2008 Order in C.R.P.(NPD).No.1810 of 2004 https://hcservices.ecourts.gov.in/hcservices/