Madras High Court

Mrs.N.Senthamarai vs Anbalagan on 6 March, 2025

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                        CRP No.3713 of 2023


                            IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                          DATED: 06-03-2025
                                              CORAM
                        THE HONOURABLE MR JUSTICE A.D.JAGADISH CHANDIRA

                                   CRP No.3713 of 2023 and CMP No.23215 of 2023


                 Mrs.N.Senthamarai                                                             ... Petitioner

                                                                  vs
                 1.Anbalagan
                 2.Mrs.Sundariammal
                 3.Chandran
                 4.Raja                                                                       ..Respondents

                           Civil Revision Petitions filed under Section 227 of Constitution of India
                 against the Fair Order and Decreetal Order passed in I.A.No.1 of 2021 in
                 O.S.No.105 of 2010 on the file of Principal Subordinate Court, Salem dated
                 16.06.2023.


                           For Petitioner:   Mr.L.C.Sahadevan
                           For Respondents: Mr.T.M.Ramalingam
                                            For R.1
                                            Ms.S.Ishaa
                                            Ms.V.Arathi
                                            Ms.S.Viswesh
                                            For R.4
                                            R.2 & R.3 – Left



                 1/12


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                                                                                         CRP No.3713 of 2023

                                                              ORDER

The Civil Revision Petition is filed against the Fair and Decreetal Order

dated 16.06.2023 passed in I.A.No.1 of 2021 in O.S.No.105 of 2010 on the file of

Principal Subordinate Court, Salem.

Brief Facts:

2. The revision petitioner is the fourth defendant in O.S.No.105 of 2010 on

the file of Principal Subordinate Court, Salem, the first respondent is the plaintiff

and respondents 2 to 4 are defendants 1 to 3 in the suit.

3. The first respondent/plaintiff has filed a suit in O.S.No.105 of 2010 for

Specific Performance against the petitioner/fourth defendant and the other three

respondents. The suit was dismissed for default on 20.11.2012. Thereafter, the

first respondent/plaintiff filed an application in I.A.No.1 of 2021 under Section 5

of the Limitation Act to condone the delay of 2952 days in filing the application

to restore the suit in O.S.No.105 of 2010.

4. The revision petitioner/fourth defendant had filed a counter and

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contested the application. He has also marked Ex.R.1. The trial Court, passed a

conditional order and condoned the delay. Challenging the same, the present

revision has been filed.

5. Learned counsel for the petitioner/fourth defendant would submit that

the trial Court had committed a grave error in condoning the huge delay of 2952

days without any sufficient cause. The petitioner/fourth defendant had marked

Ex.R.1 a sworn affidavit dated 14.12.2012 before the Court stating that the first

respondent/plaintiff had earlier filed an application to restore the suit on

14.12.2012 and thereafter, left it without pursuing the same and only

subsequently, when the petitioner/4th defendant had filed an application in ARD

No.42 of 2020 seeking return of documents filed in the suit and only after receipt

of Notice in ARD No.42/2020, they have come with the present application,

seeking to condone the delay of 2952 days .

6. He would further submit that the only reason stated by the first

respondent/plaintiff was that he was suffering from jaundice and no oral or

documentary evidence have been filed by him to prove that he was suffering from

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jaundice for 2952 days and that there has been a huge delay. Learned counsel

further submits that the Apex Court and Hon'ble High Courts on plethora of

decisions have held that the delay should not be excused as a matter of generosity

and rendering substantial justice should not cause prejudice to the opposite party.

7. In support of his contention, learned counsel for the petitioner/4th

defendant relied on the following decisions:-

(i) H.Guruswamy and Ors vs A.Krishnaiah Since deceased by Lrs (Civil Appeal No.317 of 2025) (Special Leave to Appeal (C) No.9719/2020 dated 08.01.2025.

(ii) Union of India and Another vs Jahangir Byramji Jeejeebhoy (d) through his LR reported in 2024 SCC Online 489 .

8. Learned counsel would further submit that the petitioner had earlier

filed revision petition before this Court in CRP No.2432 of 2012 seeking to

complete the trial in O.S.No.105 of 2010 and this Court, by Order dated

16.10.2012 had directed the Trial Court to complete the trial on or before

31.01.2013. The first respondent/plaintiff, who was aware of the order, has

wilfully not appeared before the Court and left the suit to be dismissed for

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default.

9. Per contra, learned counsel for the first respondent/plaintiff submits that

the plaintiff was suffering from jaundice and therefore, there has been a delay of

2952 days. Learned counsel further submits that the Courts have held that liberal

approach and justice oriented approach should be adopted in condoning the delay

and the Trial Court rightly finding that the petitioner was affected with jaundice,

condoned the delay and therefore, he seeks for dismissal of the Civil Revision

Petition.

10. Heard both sides and perused the materials available on record.

11. I.A.No.1 of 2021 was filed seeking to condone the delay of 2952 days

in filing the application to restore the suit in O.S.No.105 of 2010 which was

dismissed for default on 20.11.2012. The reasons stated by the first

respondent/plaintiff was that case was posted on 20.11.2012 for trial and he was

unable to appear before the Court due to jaundice and he was continuously taking

treatment and therefore, he was unable to inform his counsel to file an application

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to restore the suit and that he had recovered very recently and only after receiving

Court Notice in ADR No.42 of 2020, he came to know that the suit was dismissed

for default on 20.11.2012. Learned counsel further submits that the plaintiff's

absence was neither wilful nor wanton.

12. Heard both sides and perused the materials available on record. On the

side of the first respondent/plaintiff, neither oral evidence was adduced nor any

document was marked. However, the petitioner/fourth defendant has marked

Ex.R.1 which is a petition filed by the first respondent/plaintiff on 14.12.2012

seeking to restore the suit which was dismissed for default. It is clear that as per

Ex.R.1, the first respondent/plaintiff was aware of the dismissal of the suit even

on 14.12.2012. Subsequently, he has not taken any steps to pursue with the

application. Admittedly, only after receipt of notice in ARD No.42 of 2020 filed

by the petitioner/4th defendant seeking for return of documents filed in the suit,

the first respondent/plaintiff has opened up from the feigned slumber and filed a

fresh application to restore the suit.

13. The only reason stated by the petitioner/4th respondent is that he was

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suffering from jaundice and thereby there was a delay of 2952 days. In the case

of Union of India and Another vs Jahangir Byramji Jeejeebhoy (d) through his

LR reported in 2024 SCC Online 489 the Apex Court has held as follows:

“ 35. In a plethora of decisions of this Court, it has been said that delay should not be excused as a matter of generosity. Rendering substantial justice is not to cause prejudice to the opposite party. The appellants have failed to prove that they were reasonably diligent in prosecuting the matter and this vital test for condoning the delay is not satisfied in this case.”

14. In the case of H.Guruswamy and Ors vs A.Krishnaiah Since deceased

by Lrs (Civil Appeal No.317 of 2025) (Special Leave to Appeal (C)

No.9719/2020 dated 08.01.2025, the Apex Court has held as follows:

“ 13. ........ Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as “liberal approach”, “Justice oriented approach”, “substantial justice” should not be employed to frustrate or jettison the substantial law of limitation.

14. We are constrained to observe that the High Court has exhibited complete absence of judicial

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conscience and 9 restraints, which a judge is expected to maintain while adjudicating a lis between the parties.

15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation.

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, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of

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the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the 10 opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time.”.

16. Section 5 of Limitation Act is extracted for ready reference:-

5. Extension of prescribed period in certain cases.

5. Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not

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preferring the appeal or making the application within such period.

Explanation.-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

15. Section 5 of the Act is clear that only in the event of the petitioner

satisfying the Court that he had shown sufficient cause for not preferring the

appeal or making the application within such period, the Court shall admit the

petition.

16. In this case, the learned trial Judge, without there being any sufficient

cause shown by the first respondent/plaintiff, had condoned the inordinate delay

of 2952 days. This Court is of the opinion that the order passed by the trial Judge

is erroneous and not in accordance with the principles laid down by under law..

17. In the result, the order passed by Principal Subordinate Court, Salem

I.A.No.1 of 2021 in O.S.No.105 of 2010 dated 16.06.2023 is hereby set aside and

the Civil Revision Petition is allowed. No costs. Consequently, connected

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