Madras High Court
Soudamini Amma vs Lawrence John (Died) : ... on 1 February, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01.02.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
CRP(MD)(NPD) No.920 of 2018
and
CMP(MD)No.4035 of 2018
1.Soudamini Amma
2.Oormila Devi : Petitioners/Petitioners/
Appellants/Defendants 3 & 9
Vs.
1.Lawrence John (Died) : R1/R1/R1/Plaintiff
2.Kunjamma (Died )
3.Titus John
4.Dharmaraj
5.Sajitha Kumari
6.Sreedharan
7.Helan Hepay Boy : R2 to R7/R2,3,5 to 8/
R2, R3,R5 to R8/
D1,D2,D5 to D8
8.Jeyakumari
9.Angel Monisha
10.Clather : R8 to R10/LRs of the deceased R2
(R8 to R10 are brought on
record as Lrs of the deceased
R1, vide court order, dated
18.01.2021 made in CMP(MD)
No.6850 of 2020 in CRP(MD)
No.920 of 2018)
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2
Prayer: Civil Revision Petition filed under section 115 of
the Civil Procedure Code, against the petition and order, dated
26.07.2017 passed by the Subordinate Judge, Kuzhithurai, made I
I.A.No.196 of 2009 in A.S.S.R No.3358 of 2009.
For Petitioners : Mr.K.N.Thampi
For R1, R8 to R10 : Mr.B.Christopher
For R2 to R7 : No appearance
ORDER
(Thro' VC)
This Civil Revision Petition has been filed against the
petition and order, dated 26.07.2017 passed by the Subordinate
Judge, Kuzhithurai, made in I.A.No.196 of 2009 in A.S.S.R No.3358
of 2009.
2.The 1st respondent herein as plaintiff filed a suit in
O.S.No.422 of 2001 on the file of the II Additional District Munsif,
Kuzhithurai against the petitioners and the respondents 2 to 7
herein for partition and separate possession and to set aside the
decree and judgment passed in O.S.No.210 of 1992 and the
appellate decree in A.S.No.45 of 1998. The said suit was decreed
on 26.07.2006 and an ex-parte preliminary decree had been passed
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and a Commissioner has been appointed in the final decree
proceedings. Aggrieved by the said ex-parte decree, A.S.S.R No.
3358 of 2009 has been filed before the Subordinate Judge,
Kuzhithurai, with a petition in I.A.No.196 of 2009 to condone the
delay in filing the appeal. The said petition was dismissed on
26.07.2017. Against which, the defendants 3 and 9 are before this
court.
3.The learned counsel appearing for the petitioner has
contended that the trial court erred in dismissing the condone delay
petition filed by the petitioner, even though convincing reasons
were stated therein; that the delay caused in filing the application
to set aside the ex-parte decree is neither wilful nor wanton. The
learned counsel has also contended that the petitioners are ready to
compensate the 1st respondent/plaintiff by way of cost.
4.The learned counsel appearing for the respondents 1, 6
to 8 submitted that the trial court, while dismissing the condone
delay petition has taken into account all the relevant facts and
circumstance of the case and arrived at a conclusion that the
petitioners had not explained each and every's delay in their
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application and there is no infirmity in the conclusion arrived at by
the trial court in dismissing the condone delay petition and the
same does not require any interference by this court.
5.This court has carefully perused the submission made on
behalf of either side and perused the materials available on record.
6.Admittedly, the Suit in O.S.422 of 2001 has been decreed
ex-parte on 26.07.2006. It is the contention of the
petitioners/Defendants 3 and 9 that the father of the 2nd petitioner
was affected by throat cancer and he was admitted in the Regional
Cancer Centre, Trivandrum for some period and subsequently, he
died on 03.10.2008 and due to it, they could not file the restoration
petition in time. Therefore, they had filed an application in I.A.No.
196 of 2009 in A.S.S.R No.3358 of 2009 before the learned
Subordinate Judge, Kuzhithurai, to condone the delay of 1091 days
in filing the petition to set aside the ex-parte decree passed on
26.07.2006.
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7.When a Court of Law deals with an application to
condone the delay filed under section 5 of the Limitation Act, such
application will have to be generally viewed in a liberal and lenient
way to do substantial justice between the parties. By projecting an
application to condone the delay as per section 5 of the Limitation
Act, belatedly, no party will file the same with a mala fide intention.
If a party files a Delay Condonation application belatedly, he or she
runs a serious risk.
8.However, if an application filed under Section 5 of the
Limitation Act is allowed by this court, to advance the cause of
substantial justice, then the maximum that can happen is that a
party will be allowed to partake in the main arena of legal
proceedings and the main cause can be decided on merits. Per
contra, if a meritorious matter is thrown out at the threshold or at
early stage, the cause of justice will be certainly defeated. In a
condonation of delay application filed under section 5 of the
Limitation Act, 1963, the length and breadth of the delay is not a
material/relevant factor.
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9.It is to be borne in mind that judiciary is 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. At this juncture,it is useful to refer the decision of a Division
Bench of this Court in the case of Arun Alexander Lakshman Vs.
A.P. Vedavalli [2007(4) CTC 449], wherein it Paragraph 17, it
has been held as follows:-
“17.It is settled law that Section 5-
Application is to be constructed liberally so as to
do substantial justice to the parties. The
provision contemplated that the court has to go
into the position of the person concerned and find
out if the delay can be said to have been resulted
from the cause which the petitioner had adduced
and whether the cause stated in the
circumstances of the case is sufficient. It is the
condition precedent for the exercise of discretion
that the Court must satisfy itself as to whether
there was sufficient cause for exercising such
discretion and condoning the delay. The express
“sufficient cause' should be considered with
pragmatism with a justice oriented approach.”
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10.Even though the reasons assigned by the petitioners
are convincing, considering the huge delay and keeping in mind the
above said legal position, this Court is of the view that if the delay
is compensated by way of costs, nothing will be prejudiced to the
other side. Keeping in view of the above facts, this court is of
considered view that even though, there was a delay of 1091 days
in filing the application to set aside the ex-part decree, the delay
caused in filing section 5 application has to be condoned on
payment of costs.
11.In view of that, this civil revision is allowed, setting
aside the Order of the trial court, dated 26.07.2017, in I.A.No.196
of 2009 in A.S.S.R No.3358 of 2009 on condition that the petitioners
pay a sum of Rs.50,000/- (Rupees Fifty thousand only) as costs to
the learned counsel appearing for the respondents 1, 8 to 10 within
a period of four weeks from the date of receipt of a copy of this
order. On such payment, the trial court is directed to proceed with
the Application filed to set aside the ex-parte Decree and take up
the appeal on its file and dispose of the same, purely on merits and
in accordance with law, within a period of three months thereafter.
Consequently, connected Miscellaneous Petition is closed.
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Post the matter after four weeks for reporting
compliance.
01.02.2021
Index:Yes/No
Internet:Yes/No
er
To,
1.The Subordinate Judge,
Kuzhithurai,
Kanyakumari District.
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T.KRISHNAVALLI,J
er
CRP NPD (MD)No.920 of 2018
01.02.2021
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