Madras High Court

K.Maruthambal vs R.Ramkumar on 1 March, 2024

                                                                             C.R.P.(MD)No.3289 of 2023

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Reserved on         : 14.12.2023

                                              Pronounced on       : 01.03.2024

                                                       CORAM:

                                  THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
                                               C.R.P.(MD)No.3289 of 2023
                                                         and
                                              C.M.P.(MD)No.16945 of 2023


                    K.Maruthambal                                                ... Petitioner/
                                                                                     Petitioner/
                                                                                     Defendant

                                                            Vs.


                    R.Ramkumar                                                   ... Respondent/
                                                                                     Respondent/
                                                                                     Plaintiff

                    Prayer : This Civil Revision Petition filed under Section 115 of the Civil
                    Procedure Code, to set aside the fair and decreetal order dated 06.08.2022
                    passed by the Principal Subordinate Judge, Palani in I.A.No.418 of 2021
                    in O.S.No.171 of 2009.


                                     For Petitioner   : Mr.T.Lenin Kumar

                                     For Respondent   : Mr.D.Venkatesh


                    1/12
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                                                                           C.R.P.(MD)No.3289 of 2023

                                                        ORDER

The Civil Revision Petition is directed against the order passed in

I.A.No.418 of 2021 in O.S.No.171 of 2009 dated 06.08.2022 on the file of

the Principal Subordinate Court, Palani, dismissing the application filed

under Section 5 of Limitation Act.

2. The respondent as plaintiff has filed the above suit claiming the

relief of specific performance of the agreement dated 29.10.2007 and in

alternative, relief of refund of advance amount of Rs.3,00,000/- with

interest and costs. Since the revision petitioner/defendant has not appeared

before the trial Court and as there was no representation for her, she was

called absent and set ex parte on 12.08.2016 and an ex parte judgment and

decree came to be passed on 12.08.2016 granting the relief of specific

performance as prayed for by the respondent/plaintiff. The revision

petitioner/defendant has filed the present application under Section 5 of

Limitation Act in I.A.No.418 of 2021 on the file of the Principal

Subordinate Court, Palani, to condone the delay of 1855 days in filing an

application for setting aside the ex parte decree dated 12.08.2016. The

respondent/plaintiff has filed a counter statement raising serious

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objections. The learned Subordinate Judge, after enquiry, has passed the

impugned order dated 06.08.2022 dismissing the application. Aggrieved

by the order of dismissal, the defendant has preferred the present revision.

3. The case of the revision petitioner/defendant is that she entered

into appearance through her counsel on 12.11.2009, that thereafter, she

was suffering from diabetes, blood pressure and asthma and was bed

ridden and as such, she could not contact her counsel, that she came to

know about the passing of ex parte decree after meeting her counsel, that

there occurred delay of 1855 days in filing the application for setting aside

the ex parte decree, that the delay is neither willful nor wanton, that

nobody will be prejudiced in condoning the delay and that she would be

put to irreparable loss and hardship, if the delay is not condoned.

4. The defence of the respondent/plaintiff is that the revision

petitioner/defendant has not furnished any particulars with regard to the

hospital where she was treated and the period of treatment, that the

revision petitioner/defendant has not produced any records to prove her ill

health, that since the revision petitioner/defendant has failed to file the

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written statement earlier, she was set ex parte and the ex parte decree

came to be passed on 11.08.2010, that the revision petitioner/defendant

has filed an application under Section 5 of Limitation Act to condone the

delay of 74 days in filing an application for setting aside the ex parte

decree and another application for setting aside the ex parte decree in

I.A.Nos.556 and 557 of 2011 and the same were allowed, that when the

case was taken up for trial, the revision petitioner/defendant has again

remained ex parte and decree came to be passed, that the respondent/

plaintiff has then filed an execution petition in E.P.No.66 of 2017 and the

revision petitioner/defendant has entered into appearance and since she

has not filed counter statement, she was set ex parte, that subsequently,

she has filed an application for setting aside the ex parte order and the

same was allowed and the execution petition is pending, that the present

application has been filed only to drag on the proceedings and thereby

prevent the respondent/plaintiff from getting the benefits of the decree and

that therefore, the application is liable to be dismissed.

5. Admittedly, the respondent/plaintiff has filed the suit on

13.10.2009. It is not in dispute that the revision petitioner/defendant has

entered into appearance through her counsel on 12.11.2009 and that since

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she has not chosen to file the written statement, she was set ex parte and

the ex parte judgment and decree came to be passed on 11.08.2010. It is

also not in dispute that the revision petitioner/defendant has filed two

applications, one in I.A.No.556 of 2011 under Section 5 of Limitation Act

to condone the delay of 74 days in filing the application for setting aside

the ex parte decree and another application in I.A.No.557 of 2011 for

setting aside the ex parte decree dated 11.08.2010 and that the said

applications came to be allowed. It is also not in dispute that when the suit

was pending for trial, the revision petitioner/defendant has again remained

ex parte and consequently ex parte judgment and decree came to be

passed on 12.08.2016. It is evident from the records that subsequent to the

passing of decree on 12.08.2016, the respondent/plaintiff has laid the

execution petition in E.P.No.66 of 2017 for execution of the sale deed, that

since the revision petitioner/defendant has not entered into appearance,

she was set ex parte and the respondent/plaintiff was directed to produce

draft sale deed and that thereafter, the revision petitioner/defendant has

filed the application for setting aside the ex parte order passed in E.P.No.

66 of 2017 and after allowing of the said application, E.P.No.66 of 2017 is

now pending.

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6. It is pertinent to note that the application under Section 5 of

Limitation Act came to be filed on 08.10.2021. As already pointed out, the

revision petitioner/defendant has entered into appearance in the execution

petition in the year 2017 itself, but she has not canvassed any other reason

or cause for not filing the present application under Section 5 of

Limitation Act immediately after entering into appearance in the execution

petition. As rightly contended by the learned counsel appearing for the

respondent, there is absolutely no explanation for the intervening 4 year

period from the execution proceedings till the filing of the present

application under Section 5 of Limitation Act. Though the revision

petitioner/defendant has alleged that she was suffering from diabetes,

blood pressure and asthma and she was taking treatment for the same, she

has not produced any iota of evidence to substantiate the same. The

revision petitioner/defendant, in the affidavit filed in support of the

present application, has nowhere whispered about the hospital where she

was given treatment and the medical officer, who has treated her and the

period of treatment. The revision petitioner/defendant has also not averred

as to when she has recovered from ill health and as to when she met her

counsel and came to know about the passing of ex parte decree.

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Admittedly, the revision petitioner/defendant has not produced any records

or materials to show that she was suffering from those aliments and was

taking treatment.

7. At this juncture, it is necessary to refer the decision of this Court

in the case of T.Natarajan Vs. Srivari Housing and Construction Ltd.

and others reported in 2020 SCC OnLine Mad 2355 and the relevant

passages are extracted hereunder;

“4.The law of limitation is substantive law.

Condonation of delay is an exception. The Courts are bound to exercise discretionary power judiciously and by recording reasons. The Courts are bound to follow the law of limitation in all circumstances and only on exceptional circumstances, wherever the reasons are found genuine, then only the Courts can condone the delay and not otherwise. Mechanical approach in condonation of huge delay is unacceptable. In such an event, the Courts are diluting the law of limitation, which is impermissible. The power of discretion is to be exercised by recording reasons and it is not as if the Courts can condone the huge delay without any genuine reasons.

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....

7. ....

16. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed in jettison the substantial law of limitation. The law of limitation is substantial and therefore the principles laid down is to be scrupulously followed while condoning the delay under the law of limitation. The limitation has got a specific purpose and object and more specifically to avoid prejudice to the respective parties. In the event of prolongation or protraction of the litigation, undoubtedly and for an unspecified period when the specific law of limitation has got a specific purpose and object, then the power of discretion is to be exercised cautiously. Power of discretion cannot be exercised in the absence of any valid reason. In other words, powers can be exercised for the purpose of passing orders only by recording reasons which must be candid and convincing and must be passed on certain sound legal principles. Therefore, recording of reasons for exercising discretionary powers is one of the elementary principles of law. In the event of exercising discretionary powers without recording reasons,

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undoubtedly the same would cause not only prejudice and will set a bad principle and therefore, the Courts must be cautious while exercising power of discretion more specifically in such matters where the law of Limitation is substantial.”

8. It is settled law that the word “sufficient cause” in Section 5 of

Limitation Act should receive liberal construction to do substantial justice.

It is also settled law that the length of delay is no matter, but acceptability

of the explanation is the only criterion. In the present case, as already

pointed out, the revision petitioner/defendant has not assigned any valid

reason or explanation for the delay. It is pertinent to mention that delay

condonation petition should not be dealt with in a routine manner and

mechanical approach in condonation of huge delay cannot be accepted.

9. Considering the above, the impugned order dismissing the

application filed under Section 5 of Limitation Act cannot be found fault

with. Hence, this Court concludes that the revision is devoid of merit and

the same is liable to be dismissed.