Madras High Court
Mariyaselvam vs Hemasanthi on 5 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(NPD).No.3463 of 2013
and M.P.No.1 of 2013
Mariyaselvam ... Petitioner
vs.
1.Hemasanthi
2.Alfonsa ... Respondents
Prayer: Civil Revision Petition filed under Section 115 of Civil Procedure
Code, praying to set aside the order dated 31.07.2013 made in I.A.No.76 of
2013 in O.S.No.60 of 2012, on the file of the Principal District Munsif-cum-
Judicial Magistrate, Chengam by allowing this Civil Revision Petition.
For Petitioner : Mr.C.Munusamy
For Respondents : No Appearance
ORDER
Aggrieved by the dismissal of a petition to condone the delay
of 167 days in seeking to set aside the ex-parte decree, the defendant has
come up with this revision.
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2. Though the respondents are served and their names appear
in the cause list. There is no representation for the respondents. Heard the
counsel for the petitioner and perused papers.
3. The respondent herein filed a suit for declaration of title
and recovery of possession in O.S.No.60 of 2012, on the file of the Principal
District Munsif cum Judicial Magistrate, Chengam and an ex parte decree
was passed on 16.07.2013. The revision petitioner filed a petition to set
aside the ex parte decree along with written statement on 28.01.2013. Since
there was a delay of 167 days, in seeking to set aside the ex parte decree, he
also filed an application to condone the delay in I.A.No.76 of 2013.
4. In support of the petition to condone the delay, the revision
petitioner submitted that the suit summon was not served on him and he
never refused the summons. The fact that the respondents obtained ex parte
decree came to his knowledge only on service of notice in execution
petition. Thereafter, on enquiry, he came to know that an ex parte decree
was passed against him on 16.07.2012. Immediately, he had taken steps to
set aside the ex parte decree and filed the application to condone delay. It
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was also averred by the petitioner that he was away from his native place in
order to earn livelihood. At the relevant point of time, he was in Kaddappa,
Andhra Pradesh and he was not aware of the suit filed by respondents and
suit summon was not served on him.
5. The Court below dismissed the application on the ground
that the reasons adduced by the revision petitioner for condoning the delay
were not acceptable. Further, it was observed by the Trial Court that the
suit summons can be served on an adult member of defendant's family under
Rule 15 of Order 5 CPC. However, the trial Court in its order has not
stated, how the suit summons was served on the defendant, whether
personally or an any adult member of his family. In the impugned order, it
was not mentioned on whom the suit summon was served.
6. The service of summons on the defendants is dealt with by
Rule 10 to 30 of Order 5 of CPC. A conjoint reading of Rules 11, 12 and 15
of Order 5 CPC makes it very clear that the summons shall be served on the
defendant personally as far as possible. Where the defendant is absent from
his residence at the time when service of summons was sought to be
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effected and there is no likelihood of his being found at his residence within
a reasonable time and he has no agent empowered to accept summons, the
service may be effected on any adult member of the family, who is residing
with him. In the case on hand, first of all, it was not stated on whom the suit
summons was served. Secondly, it was also not mentioned whether it was
served on any other competent person to receive summons as there was no
likelihood of defendant returning to his residence within reasonable time.
Hence, the ingredients of service of summons as enunciated in Rules 11, 12
and 15 are not complied.
7. In the affidavit filed in support of the condone delay
petition, the revision petitioner had categorically averred that he was out of
his native place and he was not aware of filing of suit against him. He
further averred that he came to know of the suit proceedings only when he
returned to his native place and served with the notice in execution
application. The suit is for declaration of title and recovery of possession
and hence substantial rights of the parties are involved.
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8. Considering the nature of the relief sought for in the suit
and the length of delay (167) days, I am of the view that an opportunity
should be given to the revision petitioner/defendant to contest the suit on
merits. The procedural law is only a handmaid of the substantial law and in
order to advance the cause justice, if there is a conflict between the
substantial justice and procedural law, the latter must give way for the
former. It is appropriate to mention the decision of the Apex Court 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 of the institution of Courts. It is
common knowledge that 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
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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 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
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technical grounds but because it is capable of
removing injustice and is expected to do so.”
9. The discretion of the Courts while exercising the
jurisdiction under Section 5 of the Limitation Act had been very well
explained by the Apex Court in a judgment in the case of N.Balakrishnan
Vs. M.Krishnamurthy reported in [(1998) 7 SCC 123], wherein the Hon'ble
Apex Court 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
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and wasted time would never revisit. During the efflux of
time, newer causes would sprout up 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
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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 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.”
10. 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.
11. Therefore, the order passed by the learned District Munsif
cum Judicial Magistrate, Chengam, is set aside and the Civil Revision
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Petition is allowed on condition that the petitioner shall deposit a sum of
Rs.2,000/- towards cost to the respondents before the learned Principal
District Munsif cum Judicial Magistrate, Chengam, within a period of four
weeks from the date of receipt of a copy of this order, failing which, the
Civil Revision Petition stands dismissed. The respondents are permitted to
withdraw the said amount. Consequently, connected miscellaneous petition
is closed.
05.04.2022
Index : Yes/No
Internet : Yes/No
ub
https://www.mhc.tn.gov.in/judis
To
The Principal District Munsif
cum Judicial Magistrate, Chengam.
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S.SOUNTHAR, J.
ub
C.R.P.(NPD).No.3463 of 2013
and M.P.No.1 of 2013
05.04.2022
https://www.mhc.tn.gov.in/judis
