Madras High Court
S.Nagarajan vs M.Gunaseelan on 21 April, 2021
CRP (NPD) No.4641 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
CRP (NPD) No.4641 of 2015
and
MP.No.1 of 2015
S.Nagarajan
Represented by his Power of Attorney
Sekar ... Petitioner / Defendant
Vs.
M.Gunaseelan ...Respondent / Plaintiff
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure against the fair and decreetal order dated 06.11.2015 passed in
I.A.No.363 of 2015 in O.S.No.5 of 2006 on the file of the learned Subordinate
Judge, Dharmapuri.
For Petitioner : Mr.L.Chandrakumar
For Mr.I.Abrar MD Abdullah
For Respondent : Mrs.Hema Sampath, Senior Counsel
For Mr.P.Valliappan
*****
ORDER
(This case has been heard through video conference)
The Civil Revision Petition has been filed against the order and
decreetal order dated 06.11.2015 in I.A. No. 363 of 2015 in O.S. No. 5 of 2006
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CRP (NPD) No.4641 of 2015
passed by the learned Subordinate Judge, Dharmapuri, dismissing the petition
filed under Section 5 of the Limitation Act to condone the delay of 731 days in
filing the petition to set aside the exparte decree dated 28.02.2013 in O.S. No.
5 of 2006.
2.The Petitioner is the defendant in O.S. No. 5 of 2006 filed by
the Respondent seeking for specific performance of the sale agreement entered
between the Petitioner and the Respondent and for costs. Since the
Petitioner/Defendant did not appear before the Trial Court, an exparte decree
had been passed by the Trial Court on 28.02.2013. Thereafter, the
Petitioner/Defendant had filed an application to set aside the exparte decree
along with an application in I.A. No. 363 of 2015 seeking to condone the delay
of 731 days in filing the same. The affidavit in support of I.A. No. 363 of 2015
has been filed by the Power of Attorney / father of the Petitioner/Defendant, in
which it had been stated that his son / revision petitioner got employment at
USA and he was away from the Country and that since he did not appear
before the Trial Court, an exparte decree dated 28.02.2013 had been passed
passed by the Trial Court and based on that, an execution proceedings had
been initiated. Further, it had been averred that the Petitioner/Defendant or his
father was not aware of the exparte decree and that they did not receive any
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CRP (NPD) No.4641 of 2015
notice with regard to the execution proceedings and since the
Petitioner/Defendant and his father were not aware of the exparte decree, they
were unable to file an application to set aside the exparte decree within time
and thereby, there had been a delay of 731 days in filing the application to set
aside the exparte decree dated 28.02.2013.
3. The Respondent/Plaintiff had filed a detailed counter wherein
he had stated that the Petitioner/Defendant had appeared in the suit through a
Counsel and filed his written statement and that he was earlier set exparte and
an exparte decree was passed by the Trial Court on 10.11.2010 and thereafter,
the Petitioner/Defendant had filed an application in I.A. No.152 of 2012 to set
aside that exparte decree and that application was allowed on payment of costs.
Thereafter, since the Petitioner/Defendant did not appear before the Trial
Court, he was once again set exparte and an exparte decree dated 28.02.2013
was passed by the Trial Court. The Petitioner/Defendant was fully aware of the
pendency of the suit and that they deliberately allowed the Court to pass
exparte order in order to delay and protract the case and that the petition was
filed with false averments.
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CRP (NPD) No.4641 of 2015
4. The Trial Court finding that the Petitioner/Defendant had not
satisfied the Court by showing sufficient reason for condoning the delay, had
dismissed I.A.No.363 of 2015. Against which, the present Civil Revision
Petition has been filed.
5.The learned Counsel for the Petitioner/Defendant would submit
that the Petitioner/Defendant is represented through his Power of Attorney/his
father. He would submit that the Petitioner/Defendant was studying at USA
and that his father had taken loan from the Respondent/Plaintiff and a sale
agreement was entered only as a security for the loan transaction. Whereas, by
using the sale agreement which was executed as surety, the
Respondent/Plaintiff had filed a suit. Neither the Petitioner/Defendant nor his
father was aware of the exparte decree being passed against them and that they
came to know about the exparte decree only pursuant to the execution
proceedings being filed by the Respondent/Plaintiff. He would submit that the
Petitioner/Defendant was continuously residing at USA and he had come once
in a while and that he was under the genuine impression that the Advocate was
following the case. On coming to know about the exparte decree, the petition
had been filed at once. Meanwhile, there had been a delay of 731 days and
thereby, the petition to set aside the exparte decree was filed with the petition
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CRP (NPD) No.4641 of 2015
to condone the delay. The petitioner had shown sufficient cause for condoning
the delay. The learned Counsel would further submit that the Courts while
dealing with the petition to condone the delay should have liberal, pragmatic,
justice oriented and non pedantic approach. Further, the Courts are not
supposed to legalize injustice but are obliged to remove injustice. He would
reiterate that the Petitioner/Defendant being out of the country had shown
sufficient cause for condonation of delay whereas, the trial Court without
properly considering the petition had dismissed the same. He would further
submit that the petitioner is also prepared to pay exemplary cost and would
pray that the revision may be allowed on terms and conditions.
6. Per Contra, the learned Senior Counsel appearing for the
Respondent/Plaintiff would oppose stating that the Civil Revision Petition is
neither maintainable on facts nor on law. She would further submit that the suit
is of the year 2006 and notice was served on the Petitioner/Defendant in the
suit and he entered appearance through his Counsel and filed written statement
on 02.06.2006 and thereafter, he did not appear before the Trial Court and
thereby, he was earlier set exparte and an exparte decree was passed by the
Trial Court on 10.11.2010. Thereafter, the Petitioner/Defendant had filed an
application in I.A. No. 152 of 2012 to set aside that exparte decree and that
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CRP (NPD) No.4641 of 2015
application was allowed on payment of costs. Even thereafter, the
Petitioner/Defendant did not follow up the case vigilantly and once again, he
was set exparte and an exparte decree dated 28.02.2013 was passed by the
Trial Court. She would further submit that the Petitioner/Defendant and his
father were well aware of the pendency of the suit and the exparte decree being
passed against them and that they have willfully and deliberately waited to see
what was happening. She would further submit that after the exparte decree,
the Respondent/Plaintiff had filed an Execution Petition in REP No. 52 of
2013 before the Subordinate Court, Dharmapuri and notice was ordered to be
served on the Petitioner/Defendant in REP No. 52 of 2013 and when the
bailiff attempted to serve the notice on the Petitioner/Defendant, it was
informed that the Petitioner/Defendant has gone out of station and thereby, the
notice was returned and thereafter, substituted service by publication of notice
in a local newspaper was ordered and the paper publication was effected on
07.12.2013 and that since the Petitioner/Defendant did not appear before the
Execution Court, he was set exparte. Thereafter, the Respondent/Plaintiff was
directed to give a Draft Sale Deed. Later, on the direction of the Execution
Court, the Draft Sale Deed was directed to be served on the
Petitioner/Defendant through the bailiff and even at that time, it was informed
that the Petitioner/Defendant had gone out of station and thereby, the notice
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CRP (NPD) No.4641 of 2015
was served by affixure of notice on the door of the Petitioner/defendant.
Thereafter, notices sent by registered post have also been returned. Since the
draft sale deed could not be served on the Petitioner/Defendant, once again
substituted service by paper publication was ordered and the paper publication
was effected on 02.07.2014 and since the Petitioner/Defendant did not appear
before the Court even on that day, he was set exparte. While so, the father of
the Petitioner/Defendant has sworn a false affidavit stating that he was not
aware of the notice. She would further submit that thereafter based on the
Draft Sale Deed, the Court had executed a Sale Deed in favour of the
Respondent/Plaintiff on 23.09.2014 and thereafter, the Respondent/Plaintiff
had filed REA No. 61 of 2014 for taking possession of the suit property. Once
again, notice was issued to the Petitioner/Defendant through the bailiff and
even at that time, it was informed by Petitioner's father and the Power of
Attorney that his son had gone out of station and once again, the notice was
served by affixure. Thereafter, notices sent by registered post have also
returned stating reason that the Petitioner/Defendant had gone out of station
and thereafter, the Execution Court had once again directed the
Respondent/Plaintiff to effect paper publication and the paper publication was
effected on 23.03.2015. Since the Petitioner/Defendant did not appear even
after the paper publication, he was set exparte. At that stage, the
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CRP (NPD) No.4641 of 2015
Petitioner/Defendant had filed I.A. No. 363 of 2015 to set aside the exparte
Decree dated 28.02.2013 in O.S. No.5 of 2006. She would further submit that
the Petitioner/Defendant is well aware of the Execution Petition in REP. No.
52 of 2013 and that as early as 10.07.2014 one Mr. D.K.Devarajan, Advocate
had entered appearance on behalf of the Petitioner/Defendant and thereby
inferring that the Petitioner/Defendant was aware of exparte decree even prior
to 10.07.2014. While so, the application to condone delay has been filed after
7 months of knowledge on 16.04.2015. Further, the application had been filed
in a routine and casual manner baldly without details and particulars. The
learned Senior Counsel would further submit that a perusal of the records
would clearly show that the Petitioner/Defendant had been willfully evading
appearance before the Court and the application has been filed belatedly only
to drag on the proceedings and to cause prejudice to the Respondent/Plaintiff
and to cause delay. The learned Senior Counsel would further submit that the
rules of limitation are not meant to destroy the rights of parties, but they are
meant to see that parties do not resort any dilatory tactics and would seek the
remedy promptly. She would further submit that the object of providing a legal
remedy is to repair the damage caused by reason of legal injury and that the
law of limitation is thus founded on public policy and that it is for the general
welfare that a period be put to litigation. She would reiterate that the rules of
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CRP (NPD) No.4641 of 2015
limitation are not meant to destroy the rights of the parties and they are meant
to see that parties do not resort to dilatory tactics only seek remedy and the
idea is that every legal remedy must be kept alive for a legislatively fixed
period of time. The conduct of the Petitioner/Defendant has to be seen and he
had been willfully delaying the proceedings and that he has not shown
bonafides to condone the delay in not filing petition to set aside the exparte
decree in time. She would further submit that a duty is cast on the party
seeking to condone the delay to establish sufficient cause whereas, in this case
the Petitioner/Defendant has not shown sufficient cause and thereby the trial
Court had rightly dismissed the petition. In support of her contention, the
learned Senior Counsel relied on the following decisions;
1.Shanmugam vs. Chokkalingam reported in 2009 (5) CTC 48;
2. P.Sivaraj vs. R.Selvaraj reported in 2016 (3) MWN (Civil) 73;
3. A.Abitha Nachi vs. K.S.Saroja reported in 2016 (3) MWN
(Civil) 404;
4. Leela vs. V.R.Asha reported in 2019 (1) MWN (Civil) 876
5. M.S.Rathna Kumar v. Trilokchand reported in 2019 (1) MWN
(Civil) 577.
7. Heard the counsels and perused the materials placed on record.
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CRP (NPD) No.4641 of 2015
8. The learned Senior Counsel for the Petitioner/Defendant has
relied on several decisions. This is Court does not want to burden this order by
citing all the above decisions. This Court deems it apposite to refer to the
following paragraphs in the Judgment in A.Abitha Nachi vs. K.S.Saroja
reported in 2016 (3) MWN (Civil) 404; which would be relevant for deciding
the Civil Revision Petition.
14. The Hon'ble Supreme Court recently in Esha
Bhattacharjee v. Managing Committee of Raghunathpur Nafar
Academy, 2013 (5) CTC 547 (SC): 2013 (5) LW 20 held that there
should be a liberal, pragmatic, justice oriented, non-pedantic
approach while dealing with an Application for condonation of delay.
The Hon'ble Supreme Court referred to its earlier judgments in G.
Ramegowda, Major v. Special Land Acquisition Officer,
Bangalore, (1988) 2 SCC 142; O.P. Kathpallia v. Lakhmir Singh
(dead), (1984) 4 SCC 66; State of Nagaland v. Lipok AO, 2005 (1)
MWN (Cr.) 166 (SC): (2005) 3 SCC 752; New India Insurance Co.
Ltd. v. Shanti Misra, (1975) 2 SCC 840; Oriental Aroma Chemical
Industries Limited v. Gujarat Industrial Development
Corporation, (2010) 5 SCC 459, which declared that the Court should
be liberal in dealing with Condone Delay Petition. The principles are
elucidated in the said judgment and Paragraphs 15 & 16 of the
Judgment are usefully extracted as follows:
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CRP (NPD) No.4641 of 2015
“15. From the aforesaid authorities the principles that can
broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for
condonation of delay, for the Courts are not supposed to legalise
injustice but are obliged to remove injustice.
(ii) The terms sufficient cause should be understood in their
proper spirit, philosophy and purpose regard being had to the
fact that these terms are basically elastic and are to be applied
in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and uncalled
for emphasis.
(iv) No presumption can be attached to deliberate causation of
delay but, gross negligence on the part of the Counsel or litigant
is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation
of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should
not affect public justice and cause public mischief because the
Courts are required to be vigilant so that in the ultimate
eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to en capsule the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
(viii) There is a distinction between inordinate delay and a delay
of short duration or few days, for to the former doctrine of
prejudice is attracted whereas to the latter it may not be
attracted. That apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the
Courts are required to weigh the scale of balance of justice in
respect of both parties and the said principle cannot be given a
total go by in the name of liberal approach.
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CRP (NPD) No.4641 of 2015
(x) If the explanation offered is concocted or the grounds urged
in the application are fanciful, the Courts should be vigilant not
to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and
the approach should be based on the paradigm of judicial
discretion which is founded on objective reasoning and not on
individual perception.
(xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking
note of the present day scenario. They are:
(a) An Application for condonation of delay should be drafted
with careful concern and not in a half hazard manner
harbouring the notion that the Courts are required to condone
delay on the bedrock of the principle that adjudication of a lis
on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt
with in a routine manner on the base of individual philosophy
which is basically subjective.
(c) Though no precise formula can be laid down regard being
had to the concept of judicial discretion, yet a conscious effort
for achieving consistency and collegiality of the adjudicatory
system should be made as that is the ultimate institutional
motto.
(d) The increasing tendency to perceive delay as a non-serious
matter and, hence, lackadaisical propensity can be exhibited in
a non-challan manner requires to be curbed, of course, within
legal parameters.”
The Hon'ble Supreme Court also referred to some of its Judgments
regarding Law of Limitation. Paragraphs 10, 11 & 12 are usefully
extracted as follows:
“10. In this context, we may refer with profit to the authority
in Oriental Aroma Chemical Industries Limited v. Gujarat
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CRP (NPD) No.4641 of 2015
Industrial Development Corporation, (2010) 5 SCC 459, where
a Two-Judge Bench of this Court has observed that the law of
limitation is founded on public policy. The legislature does not
prescribe limitation with the object of destroying the rights of
the parties but to ensure that they do not resort to dilatory
tactics and seek remedy without delay. The idea is that every
legal remedy must be kept alive for a period fixed by the
legislature. To put it differently, the Law of Limitation
prescribes a period within which legal remedy can be availed
for redress of the legal injury. At the same time, the Courts are
bestowed with the power to condone the delay, if sufficient
cause is shown for not availing the remedy within the stipulated
time. Thereafter, the learned Judges proceeded to state that this
Court has justifiably advocated adoption of liberal approach in
condoning the delay of short duration and a stricter approach
where the delay is inordinate.
11. In Improvement Trust, Ludhiana v. Ujagar Singh, (2010) 6
SCC 786, it has been held that while considering an Application
for condonation of delay no straitjacket formula is prescribed to
come to the conclusion if sufficient and good grounds have been
made out or not. It has been further stated therein that each
case has to be weighed from its facts and the circumstances in
which the party acts and behaves.
12. A reference to the principle stated in Balwant Singh
(dead) v. Jagdish Singh, (2010) 8 SCC 685 would be quite
fruitful. In the said case the Court referred to the
pronouncements in Union of India v. Ram Charan, AIR 1964 SC
215; P.K. Ramachandran v. State of Kerala, 1997 (2) CTC 663
(SC): (1997) 7 SCC 556; and Katari
Suryanarayana v. Koppisetti Subba Rao, 2009 (4) CTC 286
(SC): (2009) 11 SCC 183 and stated thus:
25. We may state that even if the term sufficient cause has
to receive liberal construction, it must squarely fall within
the concept of reasonable time and proper conduct of the
party concerned. The purpose of introducing liberal
construction normally is to introduce the concept of
reasonableness as it is understood in its general
connotation.
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CRP (NPD) No.4641 of 2015
26. The Law of Limitation is a substantive law and has
definite consequences on the right and obligation of a
party to arise. These principles should be adhered to and
applied appropriately depending on the facts and
circumstances of a given case. Once a valuable right has
accrued in favour of one party as a result of the failure of
the other party to explain the delay by showing sufficient
cause and its own conduct, it will be unreasonable to take
away that right on the mere asking of the Applicant,
particularly when the delay is directly a result of
negligence, default or inaction of that party. Justice must
be done to both parties equally. Then alone the ends of
justice can be achieved. If a party has been thoroughly
negligent in implementing its rights and remedies, it will
be equally unfair to deprive the other party of a valuable
right that has accrued to it in law as a result of his acting
vigilantly.”
9. This Court perused the impugned order as well as the affidavit filed in
support of the I.A.No.363 of 2015 in O.S.No.5 of 2006 filed by the Petitioner /
Defendant seeking to condone the delay of 731 days in filing the petition to set
aside the exparte decree dated 28.02.2013. The suit is of the year 2006. Notice
had been served on the petitioner/Defendant in the suit and he had entered
appearance through a Counsel and filed return statement on 02.06.2006.
Thereafter, since he did not appear before the trial Court, he had been set
exparte on 10.11.2010. Thereafter, the petitioner/Defendant had filed an
application in I.A.No.152 of 2012 to set aside the exparte decree and it had
been allowed on payment of cost. Even thereafter, the petitioner had not
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CRP (NPD) No.4641 of 2015
followed up the case vigilantly and he had once again been set exparte and an
exparte decree was passed on 28.02.2013. Thereafter, the petitioner/Defendant
had not taken any steps. Meanwhile, the Respondent/Plaintiff had filed an
execution petition in REP No.52 of 2013 and notice was ordered to be served
on the Petitioner/Defendant. When the Bailiff had attempted to serve notice, it
had been informed that the Petitioner/Defendant had gone out of station and
thereby, the notice was returned and thereafter, the Court had ordered
substituted service of notice by publication in a local newspaper. The paper
publication had been effected on 07.12.2013 and since, the petitioner did not
appear before the Execution Court, he was set exparte and thereafter, the
Respondent/Plaintiff had been directed to give a draft sale deed and the Court
had once again directed him to serve the draft sale deed on the
Petitioner/Defendant through Bailiff. Even at that time, it had been informed
that the petitioner had gone out of station and thereby, notice was served by
affixure. Further, the subsequent notice that had been sent to the address of the
Petitioner/Defendant by registered post, has also been returned. Since, the draft
sale deed could not be served on the Petitioner/Defendant, once again
substituted service was ordered and the paper publication was effected on
02.07.2014. Even then, the Petitioner/Defendant did not appear before the
Court and thereby, he was set exparte in the Execution Petition. Further, it is
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CRP (NPD) No.4641 of 2015
seen that the Petitioner/Defendant had entered appearance in the Execution
Petition through one D.K.Devarajan, Advocate on 10.07.2014 and thereby,
inferring that the Petitioner/Defendant was well aware of the exparte decree
even prior to 10.07.2014 whereas, the petition to set aside the exparte order
along with the petition to condone the delay, had been filed only on
16.04.2015. The only reason stated in the affidavit seeking to condone the
delay is that the petitioner had gone out of the Country and that a fraudulent
decree had been obtained on 28.02.2013. Further, after the Execution Petition
had been allowed and the Sale deed had been executed based on the order of
the Court dated 23.09.2014, the Petitioner/Defendant had applied for certified
copies of the applications filed in REP No.52 of 2013 and REA No.61 of 2014
on 07.01.2015 and he had also obtained the copies on 08.01.2015. Even
thereafter, the Petitioner/Defendant did not file any application to set aside the
exparte decree dated 28.02.2013 in O.S. No. 5 of 2006 and that he had filed the
application to set aside the exparte decree dated 28.02.2013 only on
16.04.2015.
10. It is seen that at every point of time, the Petitioner/Defendant had
been delaying or protracting the process of trial. The conduct of the petitioner
does not seems to be bonafide. The delay is an inordinate delay and no proper
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CRP (NPD) No.4641 of 2015
explanation had been given by the petitioner for condonation of such
inordinate delay and thereby, the trial Court rightly finding that the petitioner
had not shown sufficient cause, has dismissed the petition seeking to condone
the delay of 731 days. This Court is of the considered opinion that there is no
infirmity in the order passed by the trial Court.
11.Accordingly, this Civil Revision Petition stands dismissed.
Consequently, the connected miscellaneous petition also dismissed. No cost.
21.04.2021
ssi
Index: Yes/No
Speaking order/Non-speaking order
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CRP (NPD) No.4641 of 2015
A.D.JAGADISH CHANDIRA,J.
Ssi
To
1.The Subordinate Judge, Dharmapuri.
CRP (NPD) No.4641 of 2015
and MP.No.1 of 2015
21.04.2021
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