IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(C).No. 35362 of 2007(I) -------------------------- OS.1092/1998 OF I ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONER: ------------ SANDHYA RANI @ RAGI, T.C.11/1150, RAJI NIVAS, Y.M.R.JUNCTION, NANTHANCODE, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT: ------------- T.S.NIRMALA, LEKSHMI MANGALATHU VEEDU, KUDAPPANAKKUNNU P.O., TRIVANDRUM. BY ADV. SRI.S.RADHAKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner’s Exhibits:- Ext.P1:- True copy of the judgment dt. 23.8.2000 in OS 1092/98 on the file of Munsiff Court, Thiruvananthapuram. Ext.P2:- True copy of the OP 1138/98 of the Family Court,Thiruvananthapuram Ext.P3:- True copy of the judgment of divorce in OP 1138/98 of the Family Court, Thiruvananthapuram Ext.P4:- True copy of the petition for injunction in OS 1092/98 on the file of Munsiff Court, Thiruvananthapuram Ext.P5:- True copy of the objection to Ext.P4 Ext.P6:- True copy of the final decree application in OS 1092/98 on the file of Munsiff Court, Thiruvananthapuram Ext.P7:- True copy of the report of the commissioner in final decree application in OS 1092/98 on the file of the Munsiff Court, Thiruvananthapuram Ext.P8:- True copy of the application for setting aside the preliminary decree filed by the respondent in OS 1092/98 on the file of Munsiff Court, Trivandrum Ext.P9:- True copy of delay condonation application for setting aside the preliminary decree filed by the respondent in OS 1092/98 on the file of Munsiff Court, Thiruvananthapuram Ext.P10:- True copy of the objection to Ext.P8 Ext.P11:- True copy of the objection to Ext.P9 Ext.P12:- True copy of the deposition in OS 1092/98 on the file of Munsiff Court, Thiruvananthapuram Ext.P13:- True copy of the order in IA 2694/07 and 2695/98 dt. 17.7.07 on the file of Munsiff Court, Thiruvananthapuram //True copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 35362 OF 2007 ------------------------------------------ Dated this the 17th day of June, 2008 JUDGMENT Whether the discretion exercised by the trial court in setting aside the decree after condoning the delay is to be interfered by this Court in exercise of the revisional powers under Section 115 of Code of Civil Procedure is the question to be decided in this writ petition. The petition was originally filed as one under Article 227 of Constitution of India. Finding that the proper remedy is to file a revision petition, as the impugned order was one passed under Rule 13 Order IX of Code of Civil Procedure and Section 5 of the Limitation Act, application was filed to convert the writ petition to a petition under Section 115 of Code of Civil Procedure. In the interest of justice that petition is allowed. 2. Petitioner is the daughter-in-law of the respondent. She instituted O.S. 1092 of 1998 before Munsiff Court, Thiruvananthapuram for partition of the plaint schedule property contending that under a WPC35362/2007 2 settlement deed executed by her husband, the first defendant, she is entitled to one half right in the suit property. Subsequently the marriage between petitioner and first defendant was dissolved by filing a petition under Section 13B of Hindu Marriage Act, in the divorce petition, filed earlier by the first defendant in December 1998. Though respondent, in the application filed under Rule 1 of Order XXXIX of Code of Civil Procedure filed by the petitioner seeking an order of temporary injunction restraining her from alienating the property or inducting strangers into the plaint schedule property filed a counter affidavit, she did not file any written statement. Subsequently defendants were set exparte and an exparte decree was filed on 28.3.2000. Subsequently an application for passing of final decree was passed on 22.2.2006. A commission was appointed and the commissioner submitted a report also. Thereafter respondent filed Exts.P8 and P9 applications, one under Rule 13 Order IX of the Code and the other under Section 5 of Limitation Act, to condone the delay and to set aside the exparte decree. It was contended by respondent in the applications, that she did not receive any summons and was not aware of the decree till she was informed about passing of the decree dated 28.3.2000 on 9.8.2006 by Adv. Sathi and though WPC35362/2007 3 respondent instructed the said counsel to file a petition to set aside the exparte decree, she did not file any petition and only later after the commissioner inspected the property and respondent consulted Adv. Cheruniyoor Sasidharan Nair, she was informed that no petition to set aside the exparte decree was filed and therefore the delay occasioned. In Ext.P9 petition she sought to condone the delay of 219 days contending that she was informed by the counsel originally engaged namely, Adv. Betsy M. Joseph, who also appeared for the first defendant in the divorce O.P., that the suit filed by petitioner was withdrawn by the petitioner and later she came to know about the decree only on 9.8.2006 and failure to contest the suit was not on account of any negligence or laches but on account of her failure to receive summons and also on account of want of proper legal advice and legal assistance. Petitioner filed objections to the petitions denying the allegations. 3. Learned Munsiff, after recording evidence of the respondent as PW1, found that as admitted by the respondent herself delay was not 219 days but 6 years 11 months and 15 days. On going through the records learned Munsiff also found that case of the respondent that summons was not served on her, is not correct and summons was accepted by her in person. WPC35362/2007 4 But the learned Munsiff, relying on the decision of the Apex Court in M.K. Prasad v. P. Arumugam (2001 SC 2497) found that he is of the view that respondent showed sufficient and reasonable cause to get the applications allowed. Though learned Munsiff observed that inordinate delay was caused, it was not solely due to the lethargic and negligent conduct on her part the case was protracted and fact that no final decree application was filed for 6 years is also a relevant factor and all these aspects prompts learned Munsiff to exercise the judicial discretion in favour of the respondent in the larger interest of justice. In such circumstances, petitions were allowed on payment of cost of Rs.5,000/-. The order is challenged in this petition. 4. Learned counsel appearing for petitioner and learned counsel appearing for respondent were heard. 5. Learned counsel appearing for petitioner relying on Ext.P12, the deposition of the respondent as PW1, and Exts.P8 and P9 affidavits filed by the respondent, argued that the learned Munsiff was not justified in exercising the discretion in favour of the respondent. It was pointed out that as against the case of petitioner that she did not receive any summons in the suit learned Munsiff specifically found that summons was served. WPC35362/2007 5 The learned counsel also pointed out that eventhough it is the case of the respondent that Adv. Betsy M. Joseph did not contest the case as instructed by the respondent and did not inform the fact that suit was decreed exparte, petitioner did not file any complaint against the said counsel and in fact the same counsel was appearing for the son of the respondent in the divorce O.P. as well as in the petition filed under Section 13B of Hindu Marriage Act. The learned counsel also argued that eventhough it was stated in the affidavit and in the evidence that Adv. Sathi informed respondent that an exparte decree was passed on 28.3.2000 and respondent was aware of the decree only on 9.3.2006 and Adv. Sathi was instructed to file a petition to set aside the exparte decree, no such petition was filed. It was also pointed out that even when the commissioner inspected the property to divide the property in accordance with decree and respondent was aware of that fact, she did not file a petition immediately and instead approached the third counsel and being informed that no petition to set aside the decree was filed. Petitions were filed through another counsel and respondent did not move her little finger against the advocates who had shown negligence or laches and in such circumstances learned Munsiff should not have exercised the discretion in favour of the WPC35362/2007 6 respondent. It was also pointed out that even if the suit is allowed to be contested by availing the opportunity granted by the trial court, no purpose will be served as ultimately suit can only be decreed as it is the admitted case that first defendant had executed a settlement deed in favour of the petitioner whereunder she is entitled to one half share in the property and though subsequently a cancellation deed was executed, no suit was instituted to set aside the settlement deed on the ground that is vitiated on any of the grounds as claimed and therefore there is no necessity to grant an opportunity to the respondent as was granted by the trial court. It is therefore argued by the learned counsel that Ext.P13 order is to be quashed. 6. Learned counsel appearing for the respondent relying on the decision of the Apex Court in Prasad’s case (supra) argued that respondent did not gain anything by purposely protracting the suit or delaying the filing of the petition to set aside the exparte decree and when the trial court exercised the discretion in favour of the respondent after imposing a cost of Rs.5,000/- and by Ext.P13 order an opportunity was granted to have a decision on merits, in exercise of the revisional powers of this Court, order may not be interfered. Relying on the decision of the Apex Court in N.Balakrishnan v. M. Krishnamoorthy WPC35362/2007 7 (1998 (7) SCC 123) it was argued that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice and when the trial court exercised discretion in favour of the respondent, that discretion may not be interfered by this Court. The learned counsel also argued that eventhough the preliminary decree was passed in March 2000 application for final decree was filed only in February 2006 and that delay was not on account of the action or omission of the respondent and in such circumstances when an opportunity was granted by the trial court on terms, that opportunity may not be taken away by this court in exercise of the revisional powers. 7. On going through Ext.P13 order, Exts.P8 and P9 affidavits of the respondent and her Ext.P12 deposition it is clear that case of the respondent that she did not receive the summons in the suit was not correct, as found by the learned Munsiff. As pointed out by the learned counsel appearing for respondent question whether summons was received or not is not very relevant in the light of Ext.P5 counter affidavit filed to Ext.P4 petition filed by the petitioner under Order XXXIX Rule 1 of Code of Civil Procedure. Having filed a counter affidavit, respondent cannot be heard to condone that she was unaware of the suit. Therefore whether summons was served on her or not WPC35362/2007 8 is not very relevant. 8. The evidence of respondent as PW1 establish that she was not diligent enough in contesting the case as no written statement was filed eventhough she had engaged a counsel and filed a counter affidavit in the injunction application. It is also true that respondent did not file a petition to set aside the exparte decree within the period, as the decree was passed on 28.3.2000. There is force in the argument of the learned counsel appearing for petitioner that case of the respondent for not filing the application within time and for more than 2535 days is not properly explained. Even according to the respondent when Adv. Sathi informed the respondent that an exparte decree was passed on 9.3.2006, respondent should have filed the application to set aside the exparte decree. Still the application was filed only 219 days thereafter contending that Adv. Sathi though, was instructed to file a petition did not file a petition and that fact was known to the respondent only when she was informed about it after enquiry by Adv. Cheruniyoor Sasidharan Nair. Viewed from this angle it cannot be said that the delay was not properly explained. 9. But the crucial question is in spite of these laches trial court exercised the discretion properly. In that case it is WPC35362/2007 9 not for this court exercising the revisional powers, to interfere with that discretion. 10. The Apex Court in Balakrishnan’s case considered the principle to be applied by the court while exercising the discretion under Section 5 of the Limitation Act. It was held that it is not the length of delay that matters, but the acceptability of the explanation which should be the only criterion. It was also held that Rules of limitation are not meant to destroy the right of the parties, but they are meant to see that parties should not resort to dilatory tactics, but seek their remedy promptly. The Apex Court has observed that refusal to condone delay would result in foreclosing a suitor from putting forth his cause and there is no presumption that delay in approaching the court is always deliberate. It was also held that if the explanation does not smack of malafides or is not put forth as part of a dilatory strategy, court must show utmost consideration to the suitor and when the discretion was exercised in favour of the petitioner by the trial court, it is not for the revisional court to interfere with that discretion exercising the revisionary jurisdiction. 11. Though an exparte decree was obtained by the petitioner on 28.3.2000, she did not file a petition to pass a final decree till 26.2.2006. The respondent cannot be found fault for WPC35362/2007 10 the said delay caused. Therefore, by granting an opportunity to the respondent to have a decision on merits, the result would be that there may be delay in getting the fruits of the decree. When the conduct of the respondent also shows that she was not diligent enough to file a petition to pass a final decree and taking this aspect into consideration and finding that the respondent did not derive any advantage by the delay and the trial court exercised the discretion in her favour I do not find that it is in the interest of justice to interfere with that discretion. In such circumstances, the writ petition is dismissed. The learned Munsiff is directed to dispose the suit as expeditiously as possible and at any rate within six months from the date of receipt of a copy of this Judgment. M. SASIDHARAN NAMBIAR, JUDGE Okb/-