Madras High Court

K. Rathinavelu vs K. Selvi on 19 September, 2022

                                                                                  C.R.P.No.56 of 2020



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 19.09.2022

                                                          CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                    C.R.P.No.56 of 2020


                     K. Rathinavelu                                                  ...Petitioner
                                                            Vs.

                     K. Selvi                                                     ... Respondent

                     Prayer : Civil Revision Petition filed under Section 151 CPC against the
                     fair and decretal order in I.A. No.226 of 2016 in O.S. No.70 of 2014 dated
                     04.11.2016 on the file of the Subordinate Judge, Cheyyar,
                     Thiruvannamalai District.

                                   For Petitioner           : Mr.E. Sathiyaraj


                                                         ORDER

The present civil revision petition is filed against the orders

dated 04.11.2016 in I.A. No.226 of 2016 in O.S. No.70 of 2014 on the file

of the Subordinate Judge, Cheyyar, Thiruvannamalai District.

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2. The revision petitioner is the defendant in O.S. No.70 of 2014

on the file of the Subordinate Judge, Cheyyar, Thiruvannamalai District.

The respondent/plaintiff filed the suit in O.S. No.70 of 2014 praying to

direct the revision petitioner/defendant to repay the loan amount due

under a mortgage deed along with interest and costs and in default, for

passing a preliminary decree in favour of the respondent / plaintiff to

auction the suit property mortgaged by the revision petitioner/defendant to

recover the loan amount. Since the revision petitioner/defendant did not

file his written statement on time, he was set ex parte and an ex parte

decree was passed on 01.04.2015 by the learned Subordinate Judge,

Cheyyar.

3. Thereafter, the revision petitioner/defendant filed a petition to

set aside the ex parte decree under Order IX Rule 13 CPC along with a

petition in I.A. No.226/2016 under Section 5 of the Limitation Act to

condone the delay of 278 days in filing the petition under Order IX Rule

13 CPC. After full contest, the learned Subordinate Judge, Cheyyar,

dismissed the said petition vide her order dated 04.11.2016. Aggrieved

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over the same, the present revision petition is filed.

4. Heard Mr.E. Sathiyaraj, learned counsel for the revision

petitioner.

5. The learned counsel for the revision petitioner contended that

since he had to take care of his wife who had underwent a caesarean

operation, he could not file the petition on time to set aside the ex parte

decree passed in O.S. No.70 of 2014.

6. The trial court dismissed the application in I.A. No.226/2016

on the grounds that the petitioner did not adduce any documentary

evidence to show that his wife underwent a caesarean operation. It was

further observed that a delivery of a child by the wife of the revision

petitioner has been taken as a ground to condone the delay in filing the

petition under Order IX Rule 13 CPC, which cannot be sustained. The

above observation of the trial court, in the opinion of this Court cannot be

found fault with.

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7. In Sundar Gnanaolivu rep. by his power of attorney agent

Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney

agent Veina Gnanavalivu) reported in 2003 1 LW 585, the Division

Bench of this Court held that when the averments in the affidavit are

untrue, lack 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 (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

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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 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

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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 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."

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In the instant case the averments in the petition lack bona fides

and hence no indulgence can be shown to the revision petitioner.

8. In view of the above discussion, I do not see any reason to

interfere with the findings of the trial court and accordingly, the Civil

Revision Petition is liable to be dismissed.

9. In the result,

I. the Civil Revision Petition is dismissed. No Costs.

II. The orders passed by the Subordinate Judge, Cheyyar,

Thiruvannamala District, dated 04.11.2016 in I.A.No.226 of 2016

in O.S. No.70/2014, is upheld.

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