C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
C.R.P.1445 of 2020
and
C.M.P.No.8321 of 2020
Gunasekaran ...Petitioner
Vs.
Saravanan ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decreetal order dated
22.10.2019 passed in I.A.No.43 of 2018 in O.S. No.41 of 2004 on the file
of the Subordinate Court, Arani.
For Petitioner : Mr.C.Venkatesan
For Respondent : Mr.R.Rajarajan
ORDER
The present civil revision petition is filed against the order dated 22.10.2019 passed in I.A.No.43 of 2018 in O.S. No.41 of 2004 on the file of the Subordinate Court, Arani.
Page 1 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020
2.The revision petitioner is the defendant in O.S.No.41 of 2004 on the file of the Subordinate Court, Aarni. The respondent/plaintiff filed the said suit for recovery of money due under a promissory note executed by the revision petitioner on 03.06.2001. The present revision petitioner did not file any written statement. Therefore, the suit was decreed ex parte on 04.12.2004. Thereafter, in order to realise the decree amount, the plaintiff filed E.P.No.99 of 2016 before the Subordinate Judge, Arani, under Order XX1 Rule 11 CPC for attaching the properties of the defendant and for selling the same through Court auction. The defendant filed a counter in the said execution petition contending that since the plaintiff gave undertaking that he would withdraw the suit in O.S.No.41 of 2004 after he discharged the loan amount due under a mortgage deed, he did not contest the suit. Thereafter, the revision petitioner furnished the security and this Court granted an order of stay of the execution petition proceedings in C.M.P.No.8321 of 2020. Thereafter, the present revision petitioner filed a petition to set aside the ex parte decree passed in O.S.No.41 of 2004 in I.A.No.43 of 2018 along with the petition to Page 2 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 condone the delay of 4697 days in filing the petition to set aside the ex parte decree.
3. After full contest, the said petition was dismissed by the learned Subordinate Judge, Arani, vide his order dated 22.10.2019, on the ground that the revision petitioner did not show sufficient cause for condoning the delay of 4697 days delay in filing the petition to set aside the ex parte decree. Aggrieved over the same, the revision petitioner has filed the present civil revision petition.
4. Heard, Mr.C.Venkatesan, learned counsel appearing for the revision petitioner and Mr.R.Rajarajan, learned counsel appearing for the respondent.
5. Mr.C.Venkatesan, learned counsel appearing for the revision petitioner contended that after filing of the suit in O.S.No.41 of 2004 there was a negotiation between the parties in which the plaintiff agreed to withdraw the suit as the revision petitioner/defendant discharged Page 3 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 another loan amount due under a mortgage deed. According to the learned counsel for the revision petitioner, the revision petitioner was suffering from jaundice continuously for two years and was taking native treatment. Therefore, he could not file a petition to set aside the ex parte decree on time.
6. Per contra, Mr.R.Rajarajan, learned counsel appearing for the respondent denied all the allegations and contended that as rightly pointed out by the trial Court, the present petition has been filed only to protract the proceedings as far as possible.
7. At the outset, it may be observed that the revision petitioner borrowed a sum of Rs.1,25,000/- from the respondent/plaintiff and executed a promissory note on 03.06.2001 promising to repay the principal together with interest @ 24% per annum. Since no amount was forthcoming from the revision petitioner, the respondent filed a suit in O.S.No.41 of 2004 for recovery of the amount due under the promissory note. The revision petitioner did not file any written statement and the Page 4 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 suit was decreed ex parte and ex parte decree was passed on 04.12.2004. Thereafter, an Execution Petition was also filed in E.P. No.99 of 2016. In the the said E.P, the defendant entered appearance and filed a counter contending that there was a panchayat in his native place wherein the respondent/plaintiff agreed to withdraw the suit and the revision petitioner agreed to settle the loan amount due under a mortgage deed. It is further contended that the respondent/plaintiff did not keep up his promise and obtained ex parte decree and thereafter, filed execution petition for attaching his properties.
8. It is pertinent to point out that in the counter filed in E.P.No.99 of 2016 dated 05.01.2018 the revision petitioner has not stated anything about the jaundice and native treatment. Only in the petition filed in I.A.No.43 of 2018 for the first time he has mentioned that he was suffering from jaundice and was taking native treatment for two years. In the circumstances, it is difficult to believe the versions of the revision petitioner that he was affected by jaundice and could not contact his counsel continuously for two years. Moreover, he also did not adduce Page 5 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 any acceptable evidence to show that subsequent to the filing of the suit in O.S.No.41 of 2004, the panchayat was convened in his native place and the revision petitioner agreed to withdraw the suit in O.S.No.41 of 2004. In the circumstances, the trial court was right in dismissing the petition filed by the revision petitioner under Section 5 of the Limitation Act. In any event the petitioner has not shown sufficient cause for condoning the delay of 4697 days in filing the petition under Section of Limitation Act.
9.In the decision in Sundar Gnanaolivu rep. by his power of attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney agent Veina Gnanavalivu) 2003 1 Law Weekly 585, the Division Bench of this Court held that when the averments in the affidavit are untrue, lacks bona fides, then the case falls within the exception to the Rule of Liberal approach and it does not deserve the liberal approach formula in matters relating to condonation of delay. In this case, the Division Bench of this Court followed the decision of the Honourable Supreme Court reported in M.K.Prasaf vs. P. Arumugam Page 6 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 (2001) 6 Supreme Court Cases 176. In Para Nos. 14-A and 15, the Division Bench of this Court held thus:-
"14. .....If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay, with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account, while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.
17. .....Once it is held that a party has lost his right to have the matter considered on merits because of his Page 7 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. WE are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.
15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but Page 8 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered."
10.In the circumstances, the revision petition fails and is therefore dismissed. No costs. Consequently, connected civil miscellaneous petition is closed.
12.09.2022 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order mtl Page 9 of 10 https://www.mhc.tn.gov.in/judis C.R.P.No.1445 of 2020 and C.M.P.No.8321 of 2020 R. HEMALATHA, J.
mtl To
1.The Subordinate Court, Arani.
2.The Section Officer, VR Section, High Court, Madras.
C.R.P.1445 of 2020 and C.M.P.No.8321 of 2020 12.09.2022 Page 10 of 10 https://www.mhc.tn.gov.in/judis