Madras High Court
Mariammal vs R.Malaiarasi on 3 February, 2021
C.R.P(MD)No.120 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P(MD)No.120 of 2021
and C.M.P(MD).No.801 of 2021
Mariammal ... Petitioner/Petitioner/Defendant
vs.
R.Malaiarasi ... Respondent/Respondent/Plaintiff
PRAYER: This Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure, to allow this Civil Revision Petition by setting
aside the fair and decreetal order passed in I.A.No.329 of 2018 in
O.S.No.148 of 2014 on the file of the Sub Court, Sankarankovil, dated
10.01.2020.
For Petitioner : Mr.T.Selvan
ORDER
This Petition has been filed to allow this Civil Revision Petition by
setting aside the fair and decreetal order passed in I.A.No.329 of 2018 in
O.S.No.148 of 2014 on the file of the Sub Court, Sankarankovil, dated
10.01.2020.
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C.R.P(MD)No.120 of 2021
2.The learned counsel for the petitioner would submit that the
respondent/plaintiff filed the suit in O.S.No.148 of 2014 against revision
petitioner, for the relief of specific performance. On 15.04.2015, the
petitioner was called absent and exparte decree was passed in the suit. To
set aside the same, the petitioner filed a petition along with Section 5
application to condone the delay of 1046 days in filing the restoration
petition. After hearing the case, the Court below declined to condone the
delay of 1046 days and dismissed the application, against which, this
Civil Revision Petition is filed.
3.Heard the learned counsel for the petitioner and perused the
materials available on record.
4.Perusal of record shows that the petitioner did not appear before
the lower Court, she was set ex-parte and ex-parte decree was passed on
15.04.2015. Against which, she filed an interlocutory application to set
aside the exparte order passed in the suit, along with Section 5
application to condone the delay of 1046 days in filing the restoration
petition where the Court below dismissed the said petition, against
which, the present revision has been filed.
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C.R.P(MD)No.120 of 2021
In Esha Bhattacharjee v. Managing Committee of
Raghunathpur Nafar Academy & others, [2013 (5) CTC 547 (SC) :
2013 (5) LW 20], it was observed by the Supreme Court that there should
be a liberal, pragmatic, justice oriented, non-pedantic approach while
dealing with an Application for condonation of delay. The principles
elucidated at paras 15 and 16 of the said judgment, are usefully extracted
as follows:
"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.
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C.R.P(MD)No.120 of 2021
(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.
(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.
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C.R.P(MD)No.120 of 2021
(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."\
5. In the present case, there was inordinate delay of 1046 days in
filing the petition to set aside the exparte order. The reason adduced by
the petitioner is that her son met with an accident, hence, she could not
follow the suit and except this reason, no other reason was adduced to
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C.R.P(MD)No.120 of 2021
justify the above huge delay and such contention without any proper
explanation cannot be considered. So, in my considered opinion, no
sufficient cause has been exhibited by the revision petitioner for
condoning the delay and therefore, the learned Judge considering all the
aspects, has rightly dismissed the condone delay application and
therefore, the interference of this Court is not necessary.
6. Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, the connected miscellaneous petitions are closed.
03.02.2021
Index : Yes / No
Internet : Yes / No
msa
Note: In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant concerned.
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C.R.P(MD)No.120 of 2021
To
1. The Subordinate Judge,
Sankarankovil.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in
C.R.P(MD)No.120 of 2021
J.NISHA BANU, J.
msa
C.R.P(MD)No.120 of 2021
and C.M.P(MD).No.801 of 2021
03.02.2021
http://www.judis.nic.in
