Madras High Court
M.Ponvel vs Tmt.K.Kanagavalli on 5 April, 2022
Crp(npd).No.2315 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(NPD) No. 2315 of 2015
and
M.P.No. 1 of 2015
M.Ponvel ... Petitioner
vs.
1. Tmt.K.Kanagavalli
2. Thiru. M.Kumaravel
3. Tmt.M.Komala
4. M. Renuka
5. Tmt. M.Kanchana
6. Tmt. M.Gowri
7. Tmt.Padmavathy
8. Tmt. Uma @ Umamaheswari
9. Tmt.M.Mohana ... Respondents
PRAYER: Civil Revision Petition filed under Section 115 of Civil
Procedure Code, 1908, 227 of the Constitution of India, 1950, to set
aside the fair and decreetal order of the Sub-Court, Tambaram, passed in
I.A.No.875 of 2013 in O.S.No.510 of 2009 dated 23.01.2015.
For Petitioner : Mr.P.S.Ratnamani
For Respondent : Mr.R.Mahalingam [R1]
https://www.mhc.tn.gov.in/judis
1/10
Crp(npd).No.2315 of 2015
ORDER
The first defendant in the suit for partition has filed this Civil
Revision Petition. The first respondent herein has filed a suit for partition
against the revision petitioner and other respondents in O.S.No.510 of
2009 on the file of Subordinate Judge, Tambaram and the said suit was
decreed as ex-parte on 18.08.2010.
2. The revision petitioner/first defendant filed a petition to set
aside the ex-parte decree with a delay of 836 days in I.A.No.875 of 2013
in O.S.No.510 of 2009. In support of his petition for condoning the
delay, he filed an affidavit stating that he was a heart patient, and at
relevant point of time he had undergone a bypass surgery and bed ridden
for long time, therefore, he was not in a position to contact his counsel to
proceed with the matter. He would further aver that, he came to know of
the preliminary ex-parte decree for partition only when the Advocate
Commissioner visited the property and immediately, he had taken steps
to set aside the ex-parte decree. He would further submit that the delay in
filing the petition to set aside the ex-parte decree was not due to any
willful act.
https://www.mhc.tn.gov.in/judis
Crp(npd).No.2315 of 2015
3. The first respondent filed a counter opposing the condone delay
petition. The learned Subordinate Judge, after considering the
submissions of both the parties, dismissed the condone delay petition.
4. Aggrieved by the same, the first defendant has come up by way
of this revision.
5. The contesting first respondent/plaintiff was served and
represented by his counsel. The respondents 2 to 9 are only co-
defendants. From the memo dated 04.04.2019 filed by the revision
petitioner, it is seen that the respondents 2 to 9 were given up and they
remained ex-parte before the Lower Court and the same is recorded.
Hence, this Court proceeded to dispose of this Revision after hearing the
petitioner and contesting first respondent.
6. The Revision Petitioner in order to explain the delay of 836
days, had stated that he was a heart patient and he had undergone bypass
surgery and hence, he was not in a position to follow his case, which
resulted in passing of ex-parte preliminary decree.
https://www.mhc.tn.gov.in/judis
Crp(npd).No.2315 of 2015
7. Considering the nature of the relief sought for in this suit, viz.,
relief of partition, the close relationship between the parties, the length of
delay in filing the petition to set aside the ex-parte decree and the
reasons adduced by the revision petitioner in his affidavit, I am of the
view that an opportunity shall be given to him to contest the suit on
merits. Since there is a considerable delay in filing the petition, this
Court feels it appropriate that cost shall be imposed on the petitioner to
compensate the first respondent/plaintiff.
8. While considering the petition to condone the delay under
Section 5 of the Indian Limitation Act, 1963, the Court must take a
liberal approach as held in the case of Collector, Land Acquisition &
Anr. Vs. Mst. Katiji & Ors. reported in [AIR 1987 SCC 1353], wherein
the Apex Court has observed as follows:
“3. The legislature has conferred the power to
condone delay be enacting Section 5 of the Indian
Limitation Act of 1963 in order to enable the Courts to do
substantial justice to parties by disposing of matters on
'merits'. The expression “Sufficient cause” employed by the
legislature is adequately elastic to enable the Courts to
apply the law in a meaningful manner which subserves the
ends of justice that being the life-purpose for the existence
https://www.mhc.tn.gov.in/judis of the institution of Courts. It is common knowledge that
Crp(npd).No.2315 of 2015
this Court has been making a justifiably liberal approach
in matters instituted in this Court. Bu the message does not
appear to have percolated down to all the other Courts in
the hierarchy. And such a liberal approach is adopted on
principle as it is realized that:-
1. Ordinarily a litigant does not stand to
benefit by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the
very threshold and cause of justice being
defeated. As against this when delay is con-
doned the highest that can happen is that a
cause would be decided on merits after hearing
the parties.
3. "Every day's delay must be explained" does
not mean that a pedantic approach should be
made. Why not every hour's delay, every
second's delay? The doctrine must be applied
in a rational common sense pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala
https://www.mhc.tn.gov.in/judis
Crp(npd).No.2315 of 2015
fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is
respected not on account of its power to
legalize injustice on technical grounds but
because it is capable of removing injustice and
is expected to do so.”
9. The Apex Court in a judgment in the case of N.Balakrishnan
Vs. M.Krishnamurthy reported in [(1998) 7 SCC 123], has observed that
while exercising the discretion under Section 5 of the Limitation
Act,1963, the Courts are guided by following principles:
“10. The primary function of a court is to
adjudicate the dispute between the parties and to
advance substantial justice. The time-limit fixed for
approaching the Court in different situations is not
because on the expiry of such time a bad cause would
transform into a good cause.
11. Rules of limitation are not meant to destroy
the rights 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. The
law of limitation fixes a lifespan for such legal remedy
for the redress of the legal injury so suffered. Time is
precious and wasted time would never revisit. During
https://www.mhc.tn.gov.in/judis the efflux of time, newer causes would sprout up
Crp(npd).No.2315 of 2015
necessitating newer persons to seek legal remedy by
approaching the courts. So a lifespan must be fixed for
each remedy. Unending period for launching the
remedy may lead to unending uncertainly and
consequential anarchy. The law of limitation is thus
founder on public policy. It is enshrined in the maxim
interest reipublicae up up sit finis litium (it is for the
general welfare that a period be put to litigation). Rules
of limitation are not meant to destroy the rights 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
https://www.mhc.tn.gov.in/judis forth as part of a dilatory strategy the court must show
Crp(npd).No.2315 of 2015
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 Court 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.”
Therefore, it is clear when the delay is not due to the malafide
intention of the petitioner, acceptance of the reasons adduced by him is
the Rule and refusal is an exception. Applying the principles enunciated
in the above referred decisions, I am inclined to take liberal approach in
considering the petition filed by the revision petitioner to condone the
delay in seeking to set aside the ex-parte decree.
10. Hence, this Civil Revision Petition is allowed on payment of
Rs.10,000/-(Rupees Ten Thousand only) as cost to the first
respondent/plaintiff within a period of six(6) weeks from the date of
receipt of a copy of this order, failing which, the Revision stands
dismissed.
https://www.mhc.tn.gov.in/judis
Crp(npd).No.2315 of 2015
11. Considering the fact that the suit is of the year 2009, the
learned Subordinate Judge, Tambaram is directed to dispose of the suit
within a period of six(6) months from the date of receipt of a copy of this
order. Connected miscellaneous petition is closed.
05.04.2022
Index : Yes
Internet : Yes
mp
To
The Sub-Court,
Tambaram,
https://www.mhc.tn.gov.in/judis
Crp(npd).No.2315 of 2015
S.SOUNTHAR, J.
mp
CRP(NPD).No.2315 of 2015
05.04.2022
https://www.mhc.tn.gov.in/judis
