IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.02.2008 CORAM THE HON'BLE Mr.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.586 of 2004 and C.M.P.No.4890 of 2004 M.Sudhakar ... Petitioner / Respondent /Defendant Vs. 1) Sarala Krishnan 2)Vimala Bahulayan ... Respondents / Petitioners/Plaintiffs This petition has been filed to set aside the Order and Decretal Order dated 18.09.2003 passed in I.A.No.21198 of 2002 in O.S.No.6494 of 1997 on the file of the VI Assistant City Civil Judge, Chennai. For Petitioner : Mr.A.Seshan For Respondent 1&2 : M/s.E.Prabhu Mr.S.Mohan O R D E R The Civil Revision Petition has been preferred by the Revision Petitioner / Respondent / Defendant as against the Order passed by the learned VI Assistant Judge, City Civil Court, Chennai in I.A.No.21198 of 2002 in O.S.No.6494/1997 on 18.09.2003. 2. The Respondents / Petitioners / Plaintiffs have filed I.A.No.21198 of 2002 under Section 5 of the Limitation Act, praying for condonation of delay of 1375 days in filing an application to set aside the Order of dismissal of Suit O.S.No.6494 of 1997 dated 15.10.1998. 3. The learned VI Assistant Judge, City Civil Court, Chennai, has passed conditional Orders in I.A.No.21198/2002 in O.S.No.6494/1997 on 18.09.2003 interalia observing that 'this petition is allowed on payment of cost of Rs.1,000/- to be paid on or before 03.10.2003, failing which the Petition shall stand dismissed. Call on 06.10.2003'. https://hcservices.ecourts.gov.in/hcservices/ 4. Aggrieved against the Conditional orders passed in I.A.No.21198/2002 in O.S.NO.6494/1997 by the learned VI Assistant Judge, City Civil Court on 18.09.2003, the Petitioner / Respondent / Defendant has filed the present revision before this Court. 5. According to the learned counsel for the Revision Petitioner / Respondent / Defendant, the Trial Court erred in not taking into account of the fact that the Respondents / Petitioners / Plaintiffs have not assigned satisfactory reasons to condone the long delay of 1375 days and that the Court below has not discussed or considered whether any sufficient cause has been made out to condone the delay when the Suit is of the year 1981 and that the reasoning assigned in allowing the application to condone the long delay are unsustainable in law and therefore prays for allowing the Revision Petition. 6. The learned counsel for the Respondents / Petitioners / Plaintiffs contend that the Suit C.S.No.395/82 originally filed before the Hon'ble High Court, consequent to change in pecuniary jurisdiction was transferred to the file of the VI Assistant Judge, City Civil Court, Chennai and renumbered as O.S.No.6494/1997 and when came up for hearing on 15.10.1998 that there was no representation on the side of Respondents / Petitioners / Plaintiffs and therefore the Court was perforced to pass an Order of dismissing the suit for default because of the non-appearance of the Respondents / Petitioners / Plaintiffs and this factum of dismissal of the Suit came to the knowledge of the Respondents / Petitioners / Plaintiffs only on 29.07.2002 and resultantly there has been a delay of 1375 days in filing Section 5 Application and that the Court below has taken into consideration all the averments mentioned in the Affidavit filed by the Respondents / Petitioners / Plaintiffs in I.A.No.21198 of 2002 and passed a Conditional Order Dt.18.09.2003 directing the Respondents / Petitioners / Plaintiffs to pay a sum of Rs.1,000/- towards costs to be paid on or before 03.10.2003 etc., and the same need not be interfered with. 7. The learned counsel for the Revision Petitioner / Respondent / Defendant, in support of his contention that the Respondents / Petitioners / Plaintiffs have not shown sufficient cause to condone the long delay of 1375 days, relied on the decision (2001)1 M.L.J. 768, Vaijayanthimala and others V. A.Ramasamy, whereby it is laid down as follows: "Civil Procedure Code (V of 1908), O.9, Rule 13 - Petition for setting aside ex parte decree - when may be allowed - "Was prevented by sufficient cause from appearing" - Implication of. https://hcservices.ecourts.gov.in/hcservices/ It is true that the Supreme Court in C.P.Srivatsava V. Shri R.K.Raizada, (2000) 2 C.T.C. 27 while considering the words "was prevented by any sufficient cause from appearing" held that the said words must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. However, in this case even though all the 4 defendants were set ex parte as early as on 5.7.1996, there is no explanation whatsoever from the petitioners 2 to 4 for their non-appearance either on 05.07.1996 when the ex parte order was passed or on 11.07.1996 when the ex parte decree was passed against them and the only explanation offered by the 1st Petitioner was that she was affected from jaundice from 8.7.1996. There was no explanation even by the 1st Petitioner for her absence to file written statement on 05.07.1996 on which date even according to the 1st Petitioner she was not affected by jaundice. In the absence of any explanation, it cannot be contended that there was sufficient cause for the petitioners for their failure to appear before the Court either on 05.07.1996 or on 11.07.1996. In the absence of non-explanation for the absence of the petitioners on 05.07.1996, there is no merit in the contention of the learned counsel for the petitioners for setting aside the ex parte decree." 7a. In the decision 2008 (1) LW, 141 and 142, Bagh Mal (alias) Ram Bux and others V. Munshi (D) by Lrs; the Hon'ble Supreme Court has observed as follows : "A law cannot be construed in a manner which would defeat the ends of justice - when an appeal / suit abates, the same may not amount to adjudication of a decree on merit, but indisputably it would attain finalaity - decision on merits is not the only test to determine the finality of decision - finality gained due to abatement is an illustration of the aforementioned variety" 8. Per contra, the learned counsel for the Respondents / Petitioners / Plaintiffs submits that the condonation of delay is the discretion of the court and placed reliance on the decision 1999-1-L.W.739 between N.Balakrishnan v. M.Krishnamurthy, where under it is held as follows: "Limitation Act (1963), S.5 - Discretion of Court - Section not to be construed as saying that such discretion is to be exercised only when the delay is https://hcservices.ecourts.gov.in/hcservices/ within certain limit - Length of delay is no matter - Sufficiency of the explanation is the relevant criterion - Duty of Court is to advance substantial justice and give liberal construction to the Section. Rules of limitation are not meant to destroy rights of parties - Refusing to condone delay is foreclosing a suitor from putting forth his cause - There is no presumption that delay in approaching Court is always deliberate - Delay condoned on terms." 9. He also pressed into service (2001) 1 M.L.J. 105 between R.M.Arunachalam v. P.L.R.Arunachalam Chettiar and others, wherein it is observed as follows:- Limitation Act (XXXVI of 1863), Sec.5 - Delay of 558 days in filing petition to restore the suit dismissed for default - Petitioner stating that he met calamities in life, resulting in mental suffering etc., resulting in delay - Even if the delay is not properly explained, petitioner should not be punished with a denial of opportunity to prosecute his case - petition allowed on payment of cost of Rs.2,500/-". 10. Further, attention of this Court is also drawn to the decision (2001) 1 M.L.J.231 between Devi and others v. K.Jayaraman, wherein it is held as follows: "Limitation Act (XXXVI of 1963), Sec.5 - Application under, for condonation of delay - Delay quite long - Petitioner, held, cannot be punished with denial of opportunity to presecute the main case - Application, can be allowed with costs." 11. It is pertinent to point out that earlier before the Hon'ble High Court in C.S.No.395/82 (later transferred and renumbered as O.S.No.6494/97 on the file of the VI Assistant Judge, City Civil Court, on account of pecuniary jurisdiction) an ex-parte preliminary decree was passed on 01.11.1991 and the same was set aside by the Hon'ble High Court as per Order made in Application No.4024/96 (filed by the Revision Petitioner / Defendant ) dated 31.10.1996. 12. The stand of the Revision Petitioner / Respondent / Defendant is that the averments in the Affidavit in I.A.No.21198/2002 filed by the Respondents / Petitioners / Plaintiffs are vague and that no particulars or details are furnished and that he is unaware of the facts mentioned regarding https://hcservices.ecourts.gov.in/hcservices/ the counsel appearing for the Respondents / Petitioners / Plaintiffs and that the 2nd Respondent / 2nd Petitioner / 2nd Plaintiff lost her husband before 01.11.1991 when an ex-parte decree was granted to them. 13. According to the Revision Petitioner, the Respondents / Petitioners / Plaintiffs used to visit one Madhavan, their relative by coming to Madras on number of occasions after 1991 till 2002 and even subsequently and as a matter of fact 2nd Respondent / 2nd Petitioner's son-in-law was employed in a bank in Madras and therefore the 2nd Respondent / 2nd Petitioner / 2nd Plaintiff used to visit her daughter's house in Madras frequently and that 2nd Petitioner's daugther Kavitha was employed as a teacher in some school in madras and that the Respondents / Petitioners / Plaintiffs had number of friends and relatives in Madras and therefore they used to visit Madras frequently and as such the contrary averments found in the Affidavit of the Respondents / Petitioners / Plaintiffs in I.A.No.21198 of 2002 are factually incorrect. 14. Expatiating his submission, the learned counsel for the Revision Petitioner submits that the Respondents / Petitioners / Plaintiffs were not diligent in prosecuting in the lis and that since the Revision Petitioner has married a girl of his own choice, the Respondents are not interested in getting a share in the property and therefore they have filed the I.A.No.21198/2002 for condonation of delay to cause harassment and annoyance to the Revision Petitioner and in short the application suffer from lack of bona fides. 15. The stand of the Respondents / Petitioners / Plaintiffs is that the 1st Respondent / 1st Petitioner's husband working in leading private company was being transferred from place to place like Baroda, Assam, New Delhi, Pune, etc., and resultantly the 1st Respondent / 1st Petitioner was away from Chennai for a long time and since their then counsel used to write to them regularly apprising the progress of the matter they were confident that it was being handled well and at this point of time, the 2nd Respondent / 2nd Petitioner was settled in Karala was attending to her bedridden husband, who was hailing for near 7 years and therefore the 2nd Respondent / 2nd Petitioner / 2nd Plaintiff could not go anywhere else, etc. The other reasons ascribed by the Respondents / Petitioners / Plaintiffs are that because of their family commitments and pre-occupations they were genuinely unable to visit Chennai and from 1995 onwards, letters from the counsel Mr.Sugumaran stopped coming and inspite of their letters, there was no reply and https://hcservices.ecourts.gov.in/hcservices/ consequently, they could not keep track of the case and only when the 1st Respondent / 1st Petitioner / 1st Plaintiff came to Chennai in June 2002, she knew about the demise of her counsel in 2001 after long illness and only in July 2002 with the help of their present counsel they came to know about the transfer of C.S.395/1982 from the file of the Hon'ble High Court to the file of the VI Assistant Judge, City Civil Court, Chennai and renumbered as O.S.No.6494/1997 and the same was dismissed on 15.10.1998 owing to their non- appearance, by the court below. 16. The pith and substance of the contention of the Revision Petitioner / Defendant / Respondent is that the Respondents / Petitioners / Plaintiffs have not prosecuted the matter diligently for a period of nearly 7 years and in the absence of 'sufficient case', I.A.No.21198/2002 is liable to be dismissed, since the same is not maintainable in law. 17. It is to be borne in mind that the term 'sufficient cause' is elastic so as to enable the Court of law to apply the same in a purposeful way to deliver substantial justice to a litigant. As a matter of fact, there cannot be any presumption that the delay has occasioned wantonly or on account of the culpable negligence or on account of the mala fides. After all, a party does not stand to bona fide by resorting to delay. Per contra he / she runs a serious risk, in the considered opinion of this court. 18. Generally, if the mistake is not attributed to a litigant, the same can be condoned as per decision AIR 1991, Allahabad, Page 317, U.P.State Road Transport Corporation v. Kedar Singh and others. 19. It is not out of place to refer to the decision 1981 (3) SCR 509, Rafiq and Another V. Munshilal and Another, whereby it is observed that 'it is not proper that an innocent litigant, after doing everything in his power to effectively participate in his proceedings by entrusting his case to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanour of his agent and for whatever reason the Advocate might have absented himself from the court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate'. 20. At this juncture, it is quite apt to point out that Rule 32 of the Civil Rules of Practice in regard to proof of facts by Affidavit runs as follows: “32. Proof of facts by Affidavit - Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules, ordered by the Court, https://hcservices.ecourts.gov.in/hcservices/ be proved by Affidavit, but the judge may, in any case, direct evidence to be given orally; and there upon the evidence shall be recorded and exhibits marked, in the manner as in a Suit and lists the witnesses and exhibit shall be prepared and annexed to the judgement." 21. In fact refusing to condone the delay can result in meritorious matter being thrown at the very early stage and cause of justice being defeated. When delay is condoned, the highest thing that can happen is that a cause can be decided on merits after hearing the parties. In short, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot lay a claim to have vested right in injustice being done because of non-deliberate delay. It is to be noted that judiciary is to be respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 22. As far as the present case is concerned, that both parties have not availed the remedy of letting in oral or documentary evidence to prove any fact or disprove the same. Obviously they relied on the Affidavit and Counter Affidavit filed in the matter in issue and the Court below has passed orders. It appears that the cost of Rs.1,000/- awarded by the court below has been refused to be received by the Revision Petitioner / Respondent / Defendant and the same has been deposited into court. It is true that the length of delay is immaterial. 23. Inasmuch as the Respondents / Petitioners / Plaintiffs have ascribed sufficient reasons that their earlier counsel, who was keeping track of the case has expired and their letters of reply proved futile and since they came to know about his death (expired in 2001) only when the 1st Respondent / 1st Petitioner / 1st Plaintiff came to Chennai in June, 2002 she knew about the plight of their case through the present counsel in July 2002 etc., this Court is not inclined to set aside the discretionary Conditional Order passed by the Trial court in I.A.No.21198/2002 in O.S.No.6494/1997 dated 18.09.2003 and bearing in mind the decision of the Hon'ble Supreme Court 2002 (1) CTC Page 769 between Ramnath Sao (a) Ramnath Sahu And Others V. Gobardhan Sao And Others, and since Courts are to take a common pragmatic liberal view in these matters because of the axiomatic fact that processual law always subservient and is in aid of justice, the Civil Revision Petition is dismissed by this Court for the reasons assigned in the Revision. Consequently the miscellaneous petition is closed. https://hcservices.ecourts.gov.in/hcservices/ 24. Since the cost / compensation is the penalty for condoning delay (certainly not a premium), this Court sitting in Revision, however directs the Respondents / Petitioners / Plaintiffs to deposit a further sum of Rs.1,000/- (in addition to the sum of Rs.1,000/- already deposited in lower court) to the credit of the Suit O.S.No.6494/1997 on the file of the VI Assistant Judge, City Civil Court, Chennai within three weeks from the date of receipt of copy of this Order considering the facts and circumstances of the case to prevent aberration of justice. It is open to the Revision Petitioner / Defendant to receive the costs by filing necessary payment out Application in the trial court in the manner known to law. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this revision. Asr Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The VI Assistant Judge, City Civil Court, Chennai 2. The Record Keeper, VR Records, High Court, Madras. 1 cc to Mr.A.Seshan, Advocate, SR.10429 1 cc to Mr.E.Prabu, Advocate, SR.10470 ma (co) dv/7.3. Order in C.R.P.(NPD) No.586 of 2004 https://hcservices.ecourts.gov.in/hcservices/