Madras High Court
Gunasekaran vs Saravanan on 12 September, 2022
C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
C.R.P.1445 of 2020
and
C.M.P.No.8321 of 2020
Gunasekaran ...Petitioner
Vs.
Saravanan ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decreetal order dated
22.10.2019 passed in I.A.No.43 of 2018 in O.S. No.41 of 2004 on the file
of the Subordinate Court, Arani.
For Petitioner : Mr.C.Venkatesan
For Respondent : Mr.R.Rajarajan
ORDER
The present civil revision petition is filed against the order
dated 22.10.2019 passed in I.A.No.43 of 2018 in O.S. No.41 of 2004 on
the file of the Subordinate Court, Arani.
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
2.The revision petitioner is the defendant in O.S.No.41 of 2004
on the file of the Subordinate Court, Aarni. The respondent/plaintiff filed
the said suit for recovery of money due under a promissory note executed
by the revision petitioner on 03.06.2001. The present revision petitioner
did not file any written statement. Therefore, the suit was decreed ex
parte on 04.12.2004. Thereafter, in order to realise the decree amount,
the plaintiff filed E.P.No.99 of 2016 before the Subordinate Judge, Arani,
under Order XX1 Rule 11 CPC for attaching the properties of the
defendant and for selling the same through Court auction. The defendant
filed a counter in the said execution petition contending that since the
plaintiff gave undertaking that he would withdraw the suit in O.S.No.41
of 2004 after he discharged the loan amount due under a mortgage deed,
he did not contest the suit. Thereafter, the revision petitioner furnished
the security and this Court granted an order of stay of the execution
petition proceedings in C.M.P.No.8321 of 2020. Thereafter, the present
revision petitioner filed a petition to set aside the ex parte decree passed
in O.S.No.41 of 2004 in I.A.No.43 of 2018 along with the petition to
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
condone the delay of 4697 days in filing the petition to set aside the ex
parte decree.
3. After full contest, the said petition was dismissed by the
learned Subordinate Judge, Arani, vide his order dated 22.10.2019, on
the ground that the revision petitioner did not show sufficient cause for
condoning the delay of 4697 days delay in filing the petition to set aside
the ex parte decree. Aggrieved over the same, the revision petitioner has
filed the present civil revision petition.
4. Heard, Mr.C.Venkatesan, learned counsel appearing for the
revision petitioner and Mr.R.Rajarajan, learned counsel appearing for the
respondent.
5. Mr.C.Venkatesan, learned counsel appearing for the revision
petitioner contended that after filing of the suit in O.S.No.41 of 2004
there was a negotiation between the parties in which the plaintiff agreed
to withdraw the suit as the revision petitioner/defendant discharged
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
another loan amount due under a mortgage deed. According to the
learned counsel for the revision petitioner, the revision petitioner was
suffering from jaundice continuously for two years and was taking native
treatment. Therefore, he could not file a petition to set aside the ex parte
decree on time.
6. Per contra, Mr.R.Rajarajan, learned counsel appearing for
the respondent denied all the allegations and contended that as rightly
pointed out by the trial Court, the present petition has been filed only to
protract the proceedings as far as possible.
7. At the outset, it may be observed that the revision petitioner
borrowed a sum of Rs.1,25,000/- from the respondent/plaintiff and
executed a promissory note on 03.06.2001 promising to repay the
principal together with interest @ 24% per annum. Since no amount was
forthcoming from the revision petitioner, the respondent filed a suit in
O.S.No.41 of 2004 for recovery of the amount due under the promissory
note. The revision petitioner did not file any written statement and the
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
suit was decreed ex parte and ex parte decree was passed on
04.12.2004. Thereafter, an Execution Petition was also filed in E.P.
No.99 of 2016. In the the said E.P, the defendant entered appearance
and filed a counter contending that there was a panchayat in his native
place wherein the respondent/plaintiff agreed to withdraw the suit and
the revision petitioner agreed to settle the loan amount due under a
mortgage deed. It is further contended that the respondent/plaintiff did
not keep up his promise and obtained ex parte decree and thereafter, filed
execution petition for attaching his properties.
8. It is pertinent to point out that in the counter filed in
E.P.No.99 of 2016 dated 05.01.2018 the revision petitioner has not stated
anything about the jaundice and native treatment. Only in the petition
filed in I.A.No.43 of 2018 for the first time he has mentioned that he was
suffering from jaundice and was taking native treatment for two years. In
the circumstances, it is difficult to believe the versions of the revision
petitioner that he was affected by jaundice and could not contact his
counsel continuously for two years. Moreover, he also did not adduce
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
any acceptable evidence to show that subsequent to the filing of the suit
in O.S.No.41 of 2004, the panchayat was convened in his native place
and the revision petitioner agreed to withdraw the suit in O.S.No.41 of
2004. In the circumstances, the trial court was right in dismissing the
petition filed by the revision petitioner under Section 5 of the Limitation
Act. In any event the petitioner has not shown sufficient cause for
condoning the delay of 4697 days in filing the petition under Section of
Limitation Act.
9.In the decision in Sundar Gnanaolivu rep. by his power of
attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its
power of attorney agent Veina Gnanavalivu) 2003 1 Law Weekly 585,
the Division Bench of this Court held that when the averments in the
affidavit are untrue, lacks bona fides, then the case falls within the
exception to the Rule of Liberal approach and it does not deserve the
liberal approach formula in matters relating to condonation of delay. In
this case, the Division Bench of this Court followed the decision of the
Honourable Supreme Court reported in M.K.Prasaf vs. P. Arumugam
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
(2001) 6 Supreme Court Cases 176. In Para Nos. 14-A and 15, the
Division Bench of this Court held thus:-
"14. .....If a litigant chooses to approach the Court
long after the time prescribed under the relevant
provisions of the law, he cannot say that no prejudice
would be caused to the other side by the delay being
condoned. The other side would have in all
probability destroyed the records thinking that the
records would not be relevant as there was no further
proceeding in the matter. Hence, to view a matter of
condonation of delay, with a presupposition that no
prejudice will be caused by the condonation of delay
to the respondent in that application will be fallacious.
In our view, each has to be decided on the facts and
circumstances of the case. Length of the delay is a
relevant matter to be taken into account, while
considering whether the delay should be condoned or
not. It is not open to any litigant to fix his own period
of limitation for instituting proceedings for which law
has prescribed periods of limitation.
17. .....Once it is held that a party has lost his right to
have the matter considered on merits because of his
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
own inaction for a long time, it cannot be presumed to
be non- deliberate delay, and in such circumstances of
the case, he cannot be heard to plead that substantial
justice deserved to be preferred as against technical
considerations. WE are of the view that the question
of limitation is not merely a technical consideration.
Rules of limitation are based on principles of sound
public policy and principles of equity. Is a litigant
liable to have a Damocles' sword hanging over his
head indefinitely for a period to be determined at the
whims and fancies of the opponent.
15. On a conspectus reading of the above principles
set out in the various judgments, it is well settled that
a liberal approach should be extended while
considering the application for condonation of delay.
Sufficient caution has been exhibited to note that
wherever there is lack of bona fides or attempt to
hood-wink the Court by the party concerned who has
come forward with an application for condonation of
delay, no indulgence should be shown by condoning
the delay applied for. It is also clear to the effect that
it is not the number of days of delay that matters, but
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C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
the attitude of the party which caused the delay. In
other words when the Court finds that the party who
failed to approach the Court within the time stipulated
comes forward with an explanation for condoning the
delay, the Court if satisfied that the delay occasioned
not due to the deliberate conduct of the party, but due
to any other reason, then by sufficiently compensating
the prejudice caused to the other side monetarily, the
condonation of delay can be favourably ordered."
10.In the circumstances, the revision petition fails and is
therefore dismissed. No costs. Consequently, connected civil
miscellaneous petition is closed.
12.09.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
https://www.mhc.tn.gov.in/judis
C.R.P.No.1445 of 2020
and C.M.P.No.8321 of 2020
R. HEMALATHA, J.
mtl
To
1.The Subordinate Court, Arani.
2.The Section Officer, VR Section, High Court, Madras.
C.R.P.1445 of 2020
and C.M.P.No.8321 of 2020
12.09.2022
https://www.mhc.tn.gov.in/judis
