Madras High Court
Suriya Begum vs S.Jothinathan on 21 January, 2021
C.R.P.(N.P.D).No.3991 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(N.P.D).No.3991 of 2015
and M.P.No.1 of 2015
1.Suriya Begum
2.Mohammed Shaffi
3.Mohammed Sherif ...Petitioners
Vs
1.S.Jothinathan
2.S.Amalnathan ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India to set aside the fair and decretal order dated 12.08.2015 in I.A.No.437
of 2010 in O.S.No.344 of 2010 on the file of the I Additional Sub Court,
Salem.
For Petitioners : Mr.R.Subramanian
For Respondents : No appearence for R1
Mr.S.Parthasarathy,
Senior Counsel for
Mr.P.Dinesh Kumar for R2
1/29
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ORDER
This Petition has been filed as against the fair and decretal order
dated 12.08.2015 in I.A.No.437 of 2010 in O.S.No.344 of 2010 on the file
of the I Additional Sub Court, Salem, thereby dismissing the petition to
condone the delay of 894 days in filing the petition to set aside the exparte
decree.
2.Originally the suit was filed in O.S.No.632 of 1997 before the
1st Additional Sub Court, Salem. Later it was transferred to the file of Fast
Track Court No.II, Salem and re-numbered as O.S.No.65 of 2003. In the
suit, the husband and father of the 1st petitioner herein is the 3rd defendant.
He engaged a counsel namely one Mr.K.Dakshinamoorthy, who appeared on
behalf of the 3rd defendant as well as for 4th and 5th defendant in the suit.
Thereafter the 3rd defendant was not aware of the fact that the suit was
transferred to the file of the Fast Tract Court No.II, Salem. Only on receipt
of notice in the final decree application in I.A.No.812 of 2006, he came to
know that the suit was decreed against him. Immediately he filed a petition
to set aside the exparte decree dated 14.10.2003, with the petition to
condone the delay of 894 days. The said petition was dismissed by an order
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dated 12.08.2015 in I.A.No.437 of 2010 in O.S.No.344 of 2010. Aggrieved
by the same, the present Civil Revision Petition is preferred.
3.The learned counsel for the petitioners submitted his case on two
folds. First of all, the Judgment passed by the trial Court itself is not a
Judgment in the eye of law. (ii) the petitioner's husband was suffered from
cardiac problem since 2002 and he was taking treatment in the hospital.
Though the 1st petitioner was examined as P.W.2 and marked Exs.P.14 to
P.22, in respect of the treatment taken by her husband, the Court below
failed to consider the same and dismissed the petition. He further submitted
that in fact husband of the 1st petitioner was examined in chief as P.W.1, but
unfortunately when the matter was posted for cross examination, he died
due to his heart ailments. When this Court as well as the Hon'ble Supreme
Court of India repeatedly held that the Court should adopt liberal approach
while considering the condone delay petition, the Court below without
considering the above aspects, mechanically dismissed the petition to
condone the delay of 894 days.
4.He further submitted that the suit filed by the respondents for
partition, declaration and injunction, directing the division of suit A schedule
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property into two equal shares and allot one such share to the petitioners
herein and allot one such share to the respondents separately for their reliefs
and to declare that the suit property, ie., 1st item of the B schedule was sold
out vide the sale deed dated 19.11.1992, executed by the 1st and 2nd
defendant in favour of the 3rd defendant, as null and void and for some
other reliefs.
5.In so far as the other prayers are concerned the 3rd defendant do
not have any grievance over the prayer. Further it is submitted that likewise
the 4th and 5th defendants also purchased the 2nd item of the B schedule
property from the very same defendants 1 and 2 herein.
6.When, it is being so, the trial Court dismissed the suit as against
the 4th and 5th defendants and decreed the suit in so far as the 3rd
defendant in respect of the 1st item of the B schedule property. Further he
submitted that on perusal of the Judgment passed in O.S.No.65 of 2003
dated 14.10.2003, is not a Judgment in the eye of law, for the reason that it
is not in terms of Section 2 (9) of Civil Procedure Code. In support of his
contention he relied upon the following Judgments:-
(i) in the case of N.Balakrishnan Vs. M.Krishnamurthy reported
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in (1998) 7 SCC 123.
(ii) in the case of M.K.Prasad Vs. P.Arumugam reported in
(2001) 6 SCC 176.
(iii) in the case of Meenakshisundaram Textiles Vs. Valliammal
Textiles Ltd., reported in 2011 (3) CTC 168.
(iv) in the case of Ummer Vs. Pottengal Subida and Others
reported in (2018) 15 SCC 127.
(v) in the case of A.J.Chandrasekar Vs. N.Masilamani and
others in C.R.P.(PD).No.2506 of 2011 dated 29.10.2018.
7.Per contra, the learned Senior Counsel appearing for the 2nd
respondent would submit that the respondents filed a suit for partition and
declaration, in which the 1st petitioner's husband is the 3rd defendant.
Though he engaged a counsel, he did not file any written statement in the
suit. For administrative purpose, the suit was transferred from the file of the
1st Additional Sub Court, Salem to the file of the Fast Track Court No.II,
Salem, and renumbered as O.S.No.65 of 2003. For transferring the case,
this Court issued circular in the year 1981 and accordingly the counsels who
appeared on behalf of either party have to make an endorsement in the
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bundle that the counsel who had appeared on behalf of the petitioners has
note down the fact that the suit is transferred to other Court. Therefore, the
1st Additional Sub Court, Salem, followed the circular issued by this Court
and transferred the same to the file of the Fast Track Court No.II, Salem.
He further submitted that the 3rd defendant had absolute knowledge about
the transfer of the suit from the file of the 1st Additional Sub Court, Salem,
to the file of the Fast Track Court No.II, Salem. Though the 3rd defendant
engaged counsel before the 1st Additional Sub Court, Salem, he did not
choose to file any written statement. It shows that he wantonly did not file
any written statement to get the suit an exparte order. Further, the 3rd
defendant stated the reason that he suffered with heart ailments, the
documents produced by him did not correlate with the disease as stated by
the 3rd defendant in the affidavit filed in support of condone delay petition.
Therefore, the 3rd defendant was rightly set as exparte and exparte decree
was passed on 14.10.2003. When the respondents filed a petition for final
decree proceedings in I.A.No.82 of 2006, notice was ordered. On receipt of
the said notice only, the 3rd defendant come forward with the petition to set
aside the exparte decree, that too with the delay of 894 days. On perusal of
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the affidavit filed in support of condone delay, no sufficient cause has been
stated for the delay of each and every day. Therefore, the Court below
rightly dismissed the petition to condone the delay of 894 days. In support
of his contention he relied upon the Judgment in the case of Sankaralingam
and another Vs. V.Rahuraman reported in 2002 (3) CTC 13. Relevant
paragraph is extracted hereunder:-
16.The suit was originally instituted in the Sub
Court Salem and numbered as O.S.No.926 of 1994. A
separate Sub Court at Attur was constituted and all suits,
which came in the jurisdiction of that Court were
transferred to the Sub Court, Attur and in that way, the
present suit was also transferred to the Sub Court, Attur
and renumbered as O.S.No.366 of 1997. It has to be
noted, it is not the case of the petitioners that their counsel
at Salem was not informed about the transfer of the suit to
the file of Sub Court, Attur. In fact, in the affidavit filed in
support of the petition they have stated that they met their
counsel at Salem and he informed that he (counsel) was
not able to attend the Sub Court, Attur on all the hearing
dates and on the particular date i.e., on 06.04.1999, he
(counsel) did not attend the Sub Court at Attur and hence
was not aware about the passing of the exparte decree.
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Once petitioners had engaged a counsel and who filed a
vakalat, any notice given by the Court or by the other
party to that counsel would constitute sufficient and
proper notice to the petitioners. That being so, when the
petitioners' counsel at Salem was informed about the
transfer of the suit and in fact the said counsel also
attended some hearing dates at Sub Court, Attur,
petitioners cannot be heard to say that the transferee
Court also should have issued notice about the transfer of
the suit to them. In fact this Court (High Court) had way
back in the year 1981, issued instructions to the
Subordinate Courts for their guidance. The relevant
portion of the said Circular reads as under,
"(i)When suits, appeals or other proceedings are
transferred from one court to another court, the transferor
court shall post before it, the cases to a particular date
and take endorsements of the Advocates, who have
already entered appearance for the parties that they are
aware of the suits, appeals or other proceedings being
transferred to a particular court and only thereafter
forward the papers to the transferee court.
(ii)In cases where parties have not already been
served, notice or fresh notice (as the case may be) shall be
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issued by the transferee court."
Inasmuch as in the present case the transferor Court has
followed the instruction (i) referred supra, there is no
substance in the contention of the learned counsel for the
petitioners.
8.Heard the learned counsel for the petitioners and the learned
counsel for the 2nd respondent and also perused the materials available on
record.
9.The father of the respondents herein filed the suit for partition
and declaration in respect of the suit property as against the defendants 1 to
5. According to the plaintiff, the suit schedule property belong to their father
and the 1st defendant by way of family arrangement. Thereby they were in
possession and enjoyment of the property jointly without any division by
meats and bound. While, the 1st defendant was admitted into the hospital
for his ailments the 1st defendant along with his son viz., the 2nd defendant
executed sale deed in respect of the 1st item of B schedule property in favour
of the 3rd defendant by the sale deed dated 19.11.1992. Likewise in respect
of the 2nd item of the B schedule property, the 1st and 2nd defendants
executed sale deed dated 14.06.1993 in favour of the 4th and 5th
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defendants. Therefore, the plaintiff sought for partition in respect of the suit
property and also for declaration declaring that the sale deed executed in
favour of the defendants 3 to 5 as null and void. The defendants 3 to 5
engaged a counsel, viz., Mr.K.Dakshinamoorthy, and he entered appearance
before the trial Court.
10.Originally the suit was filed before the 1st Additional Court,
Salem. Subsequently on administrative reason, the said suit was transferred
from the file of the 1st Additional Court, Salem to the Fast Track Court
No.II, Salem and re-numbered as O.S.No.65 of 2003 and thereafter, the 3rd
defendant was set as an exparte to the suit. While pending the suit, memo
was filed on behalf of the 4th and 5th defendants and recording the said
memo, the suit was dismissed as against them. In respect of the 1st
defendant he was called absent and he did not choose to file any written
statement and as such he was set exparte.
11.On perusal of the Judgment, the trial Court passed the same as
follows:-
"D1 called absent, set exparte. Memo filed and recorded as suit
against D4, D5 may be dismissed. Hence suit against D4, D5 dismissed.
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Suit against D1, D3 decreed as prayed for with cost. Preliminary decree
passed."
12.When the plaintiff filed a petition for final decree proceeding in
I.A.No.82 of 2006 in O.S.No.65 of 2003, in which notice was ordered and
on receipt of the same, the 3rd defendant came to know about the exparte
decree and it has been passed against him. Immediately he filed a petition to
set the exparte decree passed against him with a petition to condone delay of
894 days. The points for consideration is in two folds,
(i)Whether the Judgment dated 14.10.2003 is a Judgment in terms
of Section 2(9) of CPC and whether it contain the ingredients as
contemplated under Order 20 Rule 4(2) of CPC ?
(ii)Whether the Court below is right in dismissing the condone
delay petition ?
13.In the petition filed to set aside the exparte decree with 894
days delay, the petitioners were examined as P.W's.1 and 2, and they marked
medical reports as Exs.P.1 to P.4. While pending the application to condone
the delay in setting aside the exparte decree, the 3rd defendant died.
Thereafter the petitioners were impleaded as legal heirs of the deceased 3rd
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defendant. In fact, the 3rd defendant was examined in chief and while
pending for cross examination he died.Therefore, the Court below eschewed
the evidence of P.W.1 and examined his wife as P.W.2, the 1st petitioner
herein. She also marked exhibits as Exs.P.1 to P.22. The learned counsel for
the petitioners relied upon the Judgment in the case of Meenakshisundaram
Textiles Vs. Valliammal Textiles Ltd., reported in 2011 (3) CTC 168,
relevant paragraphs are extracted hereunder:-
"5.We have heard the respective learned
Counsel on either side on the above question. Section
2(9) of the Code of Civil Procedure defines a "judg
ment" as meaning, the statement given by the judge
on the grounds of a decree or order. In this context,
Order 20, Rules 4(1) & (2) are also referable, which
read as under:
"4. Judgment of Small Cause Courts.--(1) Judgments
of a Court of Small Causes need not contain more
than the points for determination and the de
cision thereon. (2) Judgments of other Courts. —
Judgments of other Courts shall contain a concise
statement of the case, the points for determination,
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the decision thereon, and the reasons for such de
cision."
Order 20, Rule 4(1) relates to the judgment of a
Court of Small Causes. Inasmuch as the said judg
ment does not require more than the points for de
termination and that the decision thereon, a judgment
of a Court of Small Causes shall not fall under Sec
tion 2(9) of the Code of Civil Procedure. Insofar as
the judgment of other Court is concerned, in terms of
Order 20, Rule 4(2), it shall contain a concise state
ment of the case, the points for determination, the de
cision thereon, and the reasons for such decision and
therefore it shall fall under Section 2(9) of the Code
of Civil Procedure and in that sense, all the ingredi
ents contained Order 20, Rule 4(2) must be available
in that judgment. This more so in view of the provi
sions of Order 20, Rule 5 relating to the duty of the
Court to state its reasons on each issue. That Rule
reads as under:
"5. Court to state its decision on each issue.--In Suits
in which issues have been framed, the Court shall
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state its finding or decision, with the reasons therefor,
upon each separate issue, unless the finding upon
any one or more of the issues is sufficient for the de
cision of the Suit."
6. In terms of the above provisions, every judgment
should contain a concise statement of the case, the
points for determination, decision thereon and the
reasons for such decision. A judgment which does not
contain the bare minimum facts, the point for determ
ination, the evidence adduced and the application of
those facts and evidence for deciding the issue would
not qualify it to be called as "judgment". The judg
ment should contain the brief summary of the facts,
the evidence produced by the Plaintiff in support of
his claim and the reasoning of the learned Judge
either for decreeing the Suit or its dismissal. The
Civil Procedure Code does not say that the Court is
bound to grant a decree in case the Defendant is ab
sent. Judgment means cognitive process of reading a
decision or drawing conclusion. Judgment is the ba
sic requirement for a Court and it means a decison or
conclusion reached after consideration and delibera
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tion. To put it differently, the basics of a judgment are
to support by most cogent reasons that suggest them
selves the final conclusion at which the Judge has
conscientiously arrived.
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21. From the above discussions, it is manifestly clear
that even a judgment rendered ex parte and a decree
is drawn on the basis of that judgment, it is
appealable. In case that judgment and decree become
final without there being any Appeal, the decree is
executable. In that sense, there is no difference
between a judgment and decree and an ex parte
judgment and decree. In view of the above, in the
event the Defendant is set ex parte, the Court should
be extra careful in such case and it should consider
the pleadings and evidence and arrive at a finding as
to whether the Plaintiff has made out a case for a
decree. In this context, it may also be mentioned that
though a detailed judgment is required in a contested
matter, an ex parte judgment should show the
application of the minimum requirement of
consideration of the pleadings, issues, evidence and
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the relief sought for rendering such judgment."
He also relied upon the Judgment passed in C.R.P.No.2506 of 2011 dated
29.10.2018 and this Court has held as follows:-
11. A mere perusal of the judgment passed
in O.S.No.4752 of 2003 would clearly show that the
judgment is not on the lines of provisions of Order XX
Rule 5 of C.P.C. No issues have been framed by the
learned Judge and nor has he rendered a finding on
such issues. Order XX Rule 5 of the C.P.C. reads as
follows:
“5. Court to state its decision on each issue
– In suits in which issues have been framed, the Court
shall state its finding or decision, with the reasons
therefor, upon each separate issue, unless the finding
upon any one or more of the issues is sufficient for the
decision of the suit.”
12. Therefore, a reading of this order makes
it ample clear that a judgment should contain the
issues relevant for the disposal of the suit and
reasoning and finding of the Presiding Officer on the
issues, in and by which he arrives at the conclusion
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should also be found. The judgment pronounced by
the learned Judge in O.S.No.4752 of 2003 totally lacks
these ingredients. This Court in its judgment in
M/s.Meenakshisundaram Textiles Vs. M/s.Valliammal
Textiles Ltd., reported in (2011) 3 CTC 168, (2011) 3
LW 80 relying upon the earlier judgments has held as
follows:
“16. Code of Civil Procedure does not
define either an ex parte judgment or an ex parte
decree. It refers only to a judgment and a decree. In
the event a judgment is rendered when the defendant
fails to defend the suit by his absence, that judgment is
known to be an ex parte judgment and the decree
drawn on the basis of that judgment is known as an ex
parte decree. Hence, even for an ex parte judgment
and the decree, the basic ingredients of judgment must
be available to the extent to indicate that the Court
has applied its mind to the pleading, relief, claimed
thereunder, the evidence and the conclusion arrived at
by the Court on the above.”
Ultimately, this Court had set aside the judgment
therein challenged as one which is not in conformity
with the provisions of Section 2 sub-rule 9 r/w Order
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IV of C.P.C.
13. In yet another judgment in G.Selvam
and Ors. Vs. Kasthuri (deceased) and Ors. reported in
(2015) 3 LW 705, this Court apart from upholding the
right of the petitioner to challenge the ex-parte
preliminary decree under Article 227 of the
Constitution of India had also set aside the ex-parte
decree as contrary to the provisions of Order XX Rule
4 of C.P.C. The learned Judge had followed the ratio
laid down in the judgment of the Honourable Apex
Court in C.N.Ramappa Gowda Vs.
C.C.Chandregowda (dead) by LRs and Anr. reported
in (2012) 3 LW 326 = 2012 (5) SCC 265.
14. The aforementioned judgments squarely
apply to the facts of the instant case and therefore, the
judgment and decree passed by the learned Judge is
liable to be set aside.
14.The Court should be extra careful while passing exparte decree
and it should consider the pleadings and evidence and arrive at a finding as
to whether the plaintiff has made out a case for a decree. It requires
consideration of the pleadings, evidence and the relief sought for rendering
such Judgment. In this regard, it is also relevant to rely upon the Judgment
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passed by this Court in the case of R.Stella Vs. V.Antony Francis reported
in 2019 5 LW 161 and relevant paragraph is extracted here:-
"19. It is clear from the above judgments that
where the defendant contests a suit or submits himself to a
decree, it is the bounden duty of the trial Court to follow
the procedure under Order XX Rule 4 of the Civil
Procedure Code, by giving the concise statement of the
case, the points for determination, the decision thereon
and the reasons for such decision. If this is not satisfied
and a cryptic unreasoned judgment is passed, it is ex facie
illegal. When a Court considers an application for delay
to set aside the exparte decree, this must also be taken
into consideration. If the original judgment itself is ex
facie illegal, it cannot be allowed to continue and under
such circumstances, it will have a bearing, while the Court
considers an application to condone the delay to set aside
the exparte decree. The Court need not have a pedantic
approach in this regard, since it involves the substantial
right of the parties.
15.In the case on hand, after the exparte decree passed as against
the 3rd defendant, he filed a petition to set aside the exparte decree with a
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delay of 894 days. The fair and decretal order dated 12.08.2015 passed in
I.A.No.437 of 2010 in O.S.No.344 of 2010 on the file of the I Additional
Sub Court, Salem, is under challenge in this Civil Revision Petition.
Therefore, the above Judgment passed by this Court is squarely applicable to
the case on hand. Hence, the exparte Judgment passed by the Court below
is perverse and illegal. It is not at all a Judgment in the eye of law.
16.In so far as the 2nd point is concerned, the learned counsel for
the petitioners relied upon the Judgment in the case of N.Balakrishnan Vs.
M.Krishnamurthy reported in (1998) 7 SCC 123. Relevant portion is
extracted here:-
"9. It is axiomatic that condonation of delay
is a matter of discretion of the court. Section 5 of the
Limitation Act does not say that such discretion can be
exercised only if the delay is within a certain limit.
Length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes delay of
the shortest range may be uncondonable due to a want
of acceptable explanation whereas in certain other
cases, delay of a very long range can be condoned as
the explanation thereof is satisfactory. Once the court
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accepts the explanation as sufficient it is the result of
positive exercise of discretion and normally the
superior court should not disturb such finding, much
less in revisional jurisdiction, unless the exercise of
discretion was on wholly untenable grounds or
arbitrary or perverse. But it is a different matter when
the first court refuses to condone the delay. In such
cases, the superior court would be free to consider the
cause shown for the delay afresh and it is open to such
superior court to come to its own finding even
untrammelled by the conclusion of the lower court."
Further, he relied upon the Judgments reported in (2001) 6 SCC 176 in the
case of M.K.Prasad Vs. P.Arumugam and relevant paragraphs are given
below:-
"8. In construing Section 5 of the Limitation Act,
the court has to keep in mind that discretion in the section
has to be exercised to advance substantial justice. The
court has a discretion to condone or refuse to condone the
delay as is evident from the words "may be admitted"
used in the section. While dealing with the scope of
Section 5 of the Limitation Act, this Court in Ramlal v.
Rewa Coalfields Ltd. held: (AIR pp. 363-64, para 6-7)
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"6. Section 5 of the Limitation Act provides for
extension of period in certain cases. It lays down, inter
alia, that any appeal may be admitted after the period of
limitation prescribed therefor when the appellant satisfies
the court that he had sufficient cause for not preferring
the appeal within such period. This section raises two
questions for consideration. First is what is sufficient
cause; and the second, what is the meaning of the clause
'within such period'? With the first question we are not
concerned in the present appeal. It is the second question
which has been decided by the Judicial Commissioner
against the appellant. He has held that within such
period' in substance means during the period prescribed
for making the appeal. In other words, according to him,
when an appellant prefers an appeal beyond the period of
limitation prescribed he must show that he acted
diligently and that there was some reason which
prevented him from preferring the appeal during the
period of limitation prescribed. If the Judicial
Commissioner has held that 'within such period' means
'the period of the delay between the last day for filing the
"appeal and the date on which the appeal was actually
filed' he would undoubtedly have come to the conclusion
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that the illness of Ramlal on February 16 was a sufficient
cause. That clearly appears to be the effect As Judgment.
That is why it is unnecessary for us to consider what is a
sufficient cause' in the present appeal. It has been urged
before us by Mr Andley, for the appellant, that the
construction placed by Judicial Commissioner on the
words "within such period is erosion 5 it is relevant to
bear in mind two important
7.In construing Section 5 it is relevant to bear in
mind two important considerations. The first
consideration is that the expiration of the period of
limitation prescribed for making an appeal gives rise to a
right in favour of the decree-holder to treat the decree as
binding between the parties. In other words, when the
period of limitation prescribed has expired the decree-
holder has obtained a benefit under the law of limitation
to treat the decree as binding between the parties. In
other words, when the period of limitation prescribed has
expired the decree-holder has obtained a benefit under
the law of limitation to treat the decree as beyond
challenge, and this legal right which has accrued to the
decree-holder by lapse of time should not be light
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heartedly disturbed. The other consideration which
cannot be ignored is that if sufficient cause for excusing
delay is shown discretion is given to the court to condone
delay and admit the appeal. This discretion has been
deliberately conferred on the court in order that judicial
power and discretion in that behalf should be exercised to
advance substantial justice. As has been observed by the
Madras High Court in Krishna v. Chathappan2, Section 5
gives the court a discretion which in respect of jurisdiction
is to be exercised in the way in which judicial power and
discretion ought to be exercised upon principles which are
well understood; the words "sufficient cause" receiving a
liberal construction so as to advance substantial justice
when no negligence nor inaction nor want of bona fides is
imputable is imputable to the appellant.
9. Again in State of W.B. v. Administrator,
Howrah Municipality and G. Ramegowda, Major v.
Special Land Acquisition Officer this Court observed that
the expression sufficient cause" in Section 5 of the
Limitation Act must receive a liberal construction so as to
advance substantial justice and generally delays be
condoned in the interest of justice where gross negligence
or deliberate inaction or lack of bona fides is not
imputable to the party seeking condonation of delay. Law
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of limitation has been enacted to serve the interests of
justice and not to defeat it. Again in N. Balakrishnan v. M.
Krishnamurthy this Court held that acceptability of
explanation for the delay is the sole criterion and length
of delay is not relevant. In the absence of anything
showing mala fide or deliberate delay as a dilatory tactic,
the court should normally condone the delay. However, in
such a case the court should also keep in mind the
constant litigation expenses incurred or to be incurred by
the opposite party and should compensate him
accordingly. In that context the Court observed: (SCC p.
127, para 9)
"9. It is axiomatic that condonation of delay is a matter of
discretion of the court. Section 5 of the Limitation Act
does not say that such discretion can be exercised only if
the delay is within a certain limit. Length of delay is no
matter, acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation
whereas in certain other cases, delay of a very long range
can be condoned as the explanation thereof is
satisfactory. Once the court accepts the explanation as
sufficient, it is the result of positive exercise of discretion
and normally the superior court should not disturb such
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C.R.P.(N.P.D).No.3991 of 2015
finding, much less in revisional jurisdiction, unless the
exercise of discretion was on wholly untenable grounds or
arbitrary or perverse. But it is a different matter when the
first court refuses to condone the delay. In such cases, the
superior court would be free to consider the cause shown
for the delay afresh and it is open to such superior court
to come to its own finding even untrammelled by the
conclusion of the lower court."
Further in the case of Ummer Vs. Pottengal Subida and others reported in
(2018) 15 SCC 127. The relevant portion is given below:-
"14. In the light of the aforementioned
undisputed facts, in our opinion, the High Court should
have taken liberal view in the matter and held the cause
shown by the appellant as "sufficient cause" within the
meaning of Section 5 of the Limitation Act and
accordingly should have condoned the delay in filing the
appeal. One cannot now dispute the legal proposition that
the earlier view of this Court that the appellant was
required to explain the delay of each day till the date of
filing the appeal has since been diluted by the later
decisions of this Court and is, therefore, held as no longer
good law."
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C.R.P.(N.P.D).No.3991 of 2015
17.In all the above cases, the Hon’ble Supreme Court of India has
held that the High Court should have taken liberal view in the matter and the
cause shown by the petitioner should be sufficient cause within the meaning
of the Limitation Act and accordingly should have condoned the delay in
filing the Appeal.
18.In the case on hand, the 3rd defendant was suffering from heart
ailment. In support of the said pleading P.W.2 marked the exhibits as
Exs.P.1 to Ex.P.10 before the Court below. Further, Exs.P.21 to Ex.P.22 also
revealed that the 3rd defendant was admitted in the hospital and he was
taking treatment for his heart ailment. It shows that the reasons stated in the
affidavit filed in support of the condone delay petition are sufficient.
Therefore, the exparte Judgment and decree passed on 14.10.2003 is not a
Judgment in the eye of law and it is liable to be set aside.
19.However, the learned counsel for the petitioners restricted his
prayer to the extent that only in respect of the 3 rd prayer in the plaint C
schedule property, that is declaring the sale deed dated 19.11.1992
registered vide document No.3266 of 1982 executed by the 1 st and 2nd
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C.R.P.(N.P.D).No.3991 of 2015
defendant in favour of the 3rd defendant as mentioned in item 1 of the B
schedule property is alone may be set aside.
20.Accordingly, the Judgment passed in O.S.No.65 of 2003 dated
14.10.2003 is set aside in so far as the prayer C alone and the order passed
dated 12.08.2015 in I.A.No.437 of 2010 in O.S.No.344 of 2010 on the file
of the I Additional Sub Court, Salem, is set aside and accordingly, the Civil
Revision Petition is allowed. Further the trial Court is directed to complete
the trial within a period of three months from the date of receipt of a copy of
this order. No costs. Consequently connected miscellaneous petition is
closed.
21.01.2021
Jer
G.K.ILANTHIRAIYAN.J,
Jer
Index:Yes/No
Internet: Yes/No
Speaking Order: Yes/No
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C.R.P.(N.P.D).No.3991 of 2015
To
The I Additional Sub Court, Salem.
C.R.P.(N.P.D).No.3991 of 2015
and M.P.No.1 of 2015
21.01.2021
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