Madras High Court
Mohd.Majitha vs Mohd.Mashood on 9 February, 2021
C.M.P. (MD) No.9578 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.P. (MD) No.9578 of 2017
in
C.R.PMD).No.SR49188 of 2015
Mohd.Majitha : Petitioner/Petitioner
Vs.
Mohd.Mashood :Respondent/Respondent
PRAYER in C.M.P(MD).No.9578 of 2017: The Civil Miscellaneous
Petition has been filed under Section 5 of Limitation Act, to condone the
delay of 329 days in filing this Civil Revision Petition.
PRAYER in C.R.P.(MD).SR.No.49188 of 2015: The Civil Revision
Petition has been filed under Section 115 of Civil Procedure Code, to set
aside the fair and decreetal order dated 04.08.2014 in I.A.No.1329 of
2014 in O.S.No.118 of 2009 on the file of the Sub Court, Tuticorin.
For Petitioner : Mr.Senthilsankaranathakumar
For Respondent : Mr.G.Prabhu Rajadurai
1/8
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C.M.P. (MD) No.9578 of 2017
ORDER
This petition has been filed by the petitioner seeking to condone
the delay of 329 days in filing the above Civil Revision Petition.
2.The learned counsel for the petitioner would state that the
respondent filed a suit for recovery of possession of suit properties from
the petitioner. After receiving notice, the petitioner filed written
statement in time. On 23.04.2012, the petitioner herein was called absent
and exparte decree was passed. Subsequent to that, the respondent filed
an execution petition in E.P.No.59 of 2012. After serving notice only, the
petitioner came to know about the exparte decree. Thereafter, she filed
exparte set aside petition with delay of 126 days where the Court below
dismissed the petition on 04.08.2014 and the same was not informed by
the petitioner's counsel. After enquiry only, the petitioner came to know
about the dismissal order. Thereafter, the petitioner engaged another
counsel and applied copy of the said order. After receiving that order
only, the present Civil Revision Petition has been filed. In the above
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C.M.P. (MD) No.9578 of 2017
circumstances, there has been a delay of 329 in filing the above Civil
Revision Petition.
3. Heard the learned counsel for the petitioner and also perused
the materials available on record.
(i)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
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C.M.P. (MD) No.9578 of 2017
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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C.M.P. (MD) No.9578 of 2017
(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
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C.M.P. (MD) No.9578 of 2017
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.The suit is filed in the year 2009. On 23.04.2012, the
petitioner was called absent and set exparte and an exparte order
was passed. Thereafter, the respondent has filed E.P.No.59 of 2012. The
petitioner alleging that only on receipt of E.P.notice, the exparte order
came to his knowledge and thereafter, he applied for the copy of the
order and filed the petition with a delay of 329 days in filing the above
revision and the same came to be filed in 2015. The Office returned the
paper and this Court considering the situation, condoned the delay in
representing with cost. Even thereafter, the petitioner has not pursued the
matter and the condone delay petition heard on 09.02.2021. The
petitioner intention is only to drag on the proceedings. By applying the
principles in Para Nos. IX and X in the judgement cited supra, I am not
inclined to condone the delay of 329 days in filing the above revision.
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C.M.P. (MD) No.9578 of 2017
6.Accordingly, this Civil Miscellaneous Petition is dismissed.
In view of the order passed in CMP(MD)No.9578 of 2017, connected
C.R.P.(MD)SR.No.49188 of 2015 is rejected at the SR stage itself. No
costs.
09.02.2021
Internet : Yes / No
Index : 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.
To
The Subordinate Judge,
Tuticorin.
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C.M.P. (MD) No.9578 of 2017
J.NISHA BANU,J
msa
C.M.P. (MD) No.9578 of 2017
in
C.R.PMD).No.SR49188 of 2015
09.02.2021
http://www.judis.nic.in
