Madras High Court
K.Sundaram vs K.Natchimuthu on 5 January, 2021
C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
and
C.M.P(MD).Nos.6969 and 7247 of 2020
K.Sundaram ... Petitioner/Petitioner/Defendant
[ in both Civil Revision Petitions]
Vs.
1. K.Natchimuthu .... Respondent/Respondent/
Plaintiff
[Respondent in CRP(MD) No.1071 of 2020]
Pasupatheeswaran (died)
1. Kalaiarasi
2. Rajadivya
3. Ponrajkumar .... Respondents 1-3/
Respondents 2-4/Plaintiffs
[Respondents in CRP(MD) No.1129 of 2020]
Common Prayer: Civil Revision Petitions filed under Section 115 of
Code of Civil Procedure, against the order dated 29.11.2019 made in
I.A.Nos.198 and 199 of 2014 in O.S.Nos.593 and 594 of 2003, on the file
of the Principal Subordinate Court, Karur, is liable to be set aside and the
CRP is to be allowed.
For Petitioner : Mr.R.Devaraj
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
COMMON ORDER
Challenging the order dated 29.11.2019 passed by the learned
Principal Subordinate Judge, Karur, in I.A.Nos.198 and 199 of 2014 in
O.S.Nos.593 and 594 of 2003, these Civil Revision Petitions came to be
filed by the petitioner.
2. The revision petitioner is the defendant in both the suits in
O.S.No.593 and 594 of 2003 and the respondent in CRP(MD) No.1071
of 2020 is the plaintiff in O.S.No.593 of 2003 and the respondents in
CRP(MD) No.1129 of 2020 are the legal heirs of the deceased plaintiff
in O.S.No.594 of 2003, on the file of the Principal Subordinate Court,
Karur.
3. Both the money suits are filed against the petitioner/defendant
seeking a direction to the defendant to pay the respective suit amount
with subsequent interest from the date of plaint till date of realisation and
recover the cost to be incurred for the same from the defendant. Since, in
both the suits, the petitioner/defendant did not appear before the lower
Court, he was set ex-parte and ex-parte decrees were passed on
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
18.10.2005 and 21.09.2005 respectively. Thereafter, the revision
petitioner filed interlocutory applications in I.A.Nos.198 and 199 of 2014
in O.S.Nos.593 and 594 of 2003, before the Principal Subordinate Court,
Karur, seeking to condone the delay of 3082 days in filing the
application to set aside the orders dated 18.10.2005 and 21.09.2005
passed in the suits. However, the Court below dismissed the said
application, by order dated 29.11.2019, which is impugned herein.
4. The learned counsel for the revision petitioner submitted that
the petitioner was suffering from viral fever right from 10.09.2005 and
hence, he was not able to meet his advocate to get on with the cases; and
only when the petitioner meet his advocate, he came to know about the
ex-parte decrees passed in the respective suits, owing to his non-
appearance; immediately, he filed Section 5 applications seeking to
condone the delay of 3020 and 3082 days in filing the applications to set
aside the orders passed in O.S.Nos.593 and 594 of 2003 respectively.
According to the learned counsel for the petitioner, the delay occurred in
filing the set aside applications is neither willful nor wanton, but only
due to the said bonafide reasons, however, without considering the
reasons stated by the petitioner, the Court below dismissed the condone
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
delay applications. The learned counsel further submitted that it is settled
law that the merits of the matter should be looked into, instead throwing
it on the aspect of delay and hence, the order impugned herein is liable
to be set aside and these Civil Revision Petitions be allowed.
5. Heard the learned counsel appearing for the revision petitioner
and also perused the materials available on record.
6. The facts remain undisputed are that in both the suits, the
petitioner/defendant did not appear before the lower Court, he was set
ex-parte and ex-parte decrees were passed on 18.10.2005 and 21.09.2005
respectively. The revision petitioner filed interlocutory applications to set
aside the said orders passed in the suits, along with Section 5
applications to condone the delay of 3020 and 3082 days in filing the
same, on 01.03.2014. The Court below dismissed the said condone delay
applications, by the order impugned herein.
7. At the outset, it is apropos to note down the legal position on the
aspect of limitation. (i)In N.Balakrishnan v. M.Krishnamurthy, [(1998)
7 SCC 123], it was held by the Supreme Court as follows:
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
“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 want of acceptable explanation whereas in certain
other cases delay of 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 finding, much less in reversional
jurisdiction, unless the exercise of discretion was on whole
untenable grounds or arbitrary or perverse. But it is a
different matter when the first cut refuses to condone the
delay. In such cases, the superior cut 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
untrammeled by the conclusion of the lower court.
10.The reason for such a different stance is thus: The
primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice. Time
limit fixed for approaching the court in different situations in
not because on the expiry of such time a bad cause would
transform into a good cause.
11.Rule of limitation are not meant to destroy the right
of parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. the object of
providing a legal remedy is to repair the damage caused by
reason of legal injury. Law of limitation fixes a life-span for
such legal remedy for the redress of the legal injury so
suffered. Time is precious and the wasted time would never
revisit. During efflux of time newer causes would sprout up
necessitating newer persons to seek legal remedy by
approaching the courts. So a life span must be fixed for each
remedy. Unending period for launching the remedy may lead
to unending uncertainty and consequential anarchy. Law of
limitation is thus founded on public policy. It is enshrined in
the maxim Interest reipublicae up sit finis litium (it is for the
general welfare that a period be putt to litigation). Rules of
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
limitation are not meant to destroy the right of the parties.
They are meant to see that parties do not resort to dilatory
tactics but seek their remedy promptly. The idea is that every
legal remedy must be kept alive for a legislatively fixed
period of time.
12.A court knows that refusal to condone delay would
result foreclosing a suitor from putting forth his cause. There
is no presumption that delay in approaching the court is
always deliberate. This Court has held that the words
"sufficient cause" under Section 5 of the Limitation Act
should receive a liberal construction so as to advance
substantial justice vide Shakuntala Devi Jain Vs. Kuntal
Kumari [AIR 1969 SC 575] and State of West Bengal Vs.
The Administrator, Howrah Municipality [AIR 1972 SC
749].
13.It must be remembered that in every case of delay
there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut
the door against him. If the explanation does not smack of
mala fides or it is not put forth as part of a dilatory strategy
the court must show utmost consideration to the suitor. But
when there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time then the
court should lean against acceptance of the explanation.
While condoning delay the Could should not forget the
opposite party altogether. It must be borne in mind that he is
a looser and he too would have incurred quiet a large
litigation expenses. It would be a salutary guideline that
when courts condone the delay due to laches on the part of
the applicant the court shall compensate the opposite party
for his loss.”
(ii)In G. Ramegowda, Major and others v. Special Land
Acquisition Officer, Bangalore [1988 (2) SCC 142], the Supreme Court
opined thus:-
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“The contours of the area of discretion of the courts in
the matter of condonation of delays in filing appeals are set
out in a number of pronouncements of this Court.
See : Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd.
[AIR 1962 SC 361]... etc. There is, it is true, no general
principle saving the party from all mistakes of its counsel. If
there is negligence, deliberate or gross inaction or lack of
bona fide on the part of the party or its counsel there is no
reason why the opposite side should be exposed to a time-
barred appeal. Each case will have to be considered on the
particularities of its own special facts. However, the
expression ‘sufficient cause’ in Section 5 must receive a
liberal construction so as to advance substantial justice and
generally delays in preferring appeals are required to be
condoned in the interest of justice where no gross negligence
or deliberate inaction or lack of bona fides is imputable to
the party seeking condonation of the delay.”
(iii)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
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
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
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
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.
(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.
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(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."
(iv)In H. Dohil Constructions Co Pvt Ltd vs Nahar Exports Ltd
[2015(1) SCC 680], it was held as follows:
“20. In the case on hand, the delay in refiling was 1727
days. As rightly pointed out by the learned Senior Counsel
for the Appellant(s), the Respondents paid the scrutiny
charges on 11.04.2008 as disclosed in the Receipt No. 73
issued by the High Court of that date. When the appeal
papers were filed on 06.09.2007 and the scrutiny charges
were paid on 11.04.2008, it was quite apparent that the
processing of papers of the appeals for its registration did
commence in the month of April 2008. Thereafter, if
rectification of whatever defects were not carried out by the
Respondents or its counsel between April 2008 and May
2012, it is the bounden duty of the Respondents to have
satisfactorily explained such a long delay in refiling. When
we refer to the applications filed on behalf of the
Appellant(s), we find that there was no convincing
explanation as to how the Respondents were disabled from
rectifying the defects pointed out by the Registry and refiling
the appeal papers within time. The Respondents only
attempted to throw the blame on the previous counsel to
whom appeal papers were entrusted for filing in September
2007. As pointed out by the learned Senior Counsel for the
Appellant(s), there were no details as to whom it was
entrusted and what were the steps taken to ensure that the
appeals filed were duly registered for pursuing further
remedy as against the said judgment of the trial Court. As a
matter of fact the appeal papers were filed without payment
of any Court fee. This only affirms the stand of the
Appellant(s) that there was no bona fide in the Respondents'
claim and that they were seriously interested in challenging
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the judgment of the trial Court as against the non-grant of
relief of specific performance. We also fail to see as to how
the Respondent No. 1 which is a limited company involved
in the business of exports, which would certainly have its
own legal department, can plead that after entrusting the
papers to some counsel whose name was not disclosed even
before this Court did not even bother to take any follow-up
action to ensure that its appeals were duly registered in the
High Court. In this context the maxim Vigilantibus Non
Dormientibus Jura Subveniunt (Law assists those who are
vigilant and not those who sleep over their rights) aptly
applies to the case on hand. The Respondents simply by
throwing the blame on the previous counsel whose identity
was not disclosed claimed that irrespective of the enormous
delay of 1727 days in refiling the same should be condoned
as a matter of course as there was only 9 days delay involved
in filing the appeals.”
8. Now coming to the present facts and circumstances of the case,
the petitioner has stated in a routine manner that he had been suffering
from viral fever from 10.09.2005 and therefore, he was not able to meet
his advocate and after he came to know about the exparte decree,
immediately, he had filed the condone delay applications to condone the
delay of 3020 and 3082 days in filing the applications to set aside the
exparte decree in O.S.Nos. 593 and 594 of 2003 respectively. The
petitioner has not produced any material to support his illness and he has
also not explained the further delay from 2005 to 2014 with acceptable
reasons. So, in my considered opinion, no sufficient cause has been
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
exhibited by the revision petitioner for condoning the delay and
therefore, the learned Judge considering all the same, has rightly
dismissed the condone delay applications and the interference of this
Court is not necessary.
9. In fine, these Civil Revision Petitions stand dismissed. No costs.
Consequently, the connected miscellaneous petitions are closed.
05.01.2021
Index : Yes/No
Internet : Yes/No
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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
1. The Principal Subordinate Court,
Karur.
2.The Record Keeper,
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
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C.R.P(NPD)(MD)Nos.1071 and 1129 of 2020
J.NISHA BANU,J
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C.R.P(MD)Nos.1071 and 1129 of 2020
05.01.2021
http://www.judis.nic.in
