BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
29. 07.2015 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(NPD)(MD)No.1119 of 2015 and M.P.(MD)No.1 of 2015 S.Gajendran ...Petitioner Vs Natarajan ...Respondent Prayer Civil Revision Petition is filed under Section 115 of Code of Civil Procedure to set aside the order dated 10.03.2015 passed in I.A.No.651 of 2012 in O.S.No.352 of 2008 on the file of Principal District Munsif Court, Thoothukudi. !For Petitioner : Mr.G.Prabhu Rajadurai ^For Respondent : Mr.N.Subramanian :ORDER
This Civil Revision Petition is directed against the order dated 10 March, 2015 in I.A.No.651 of 2012, whereby and whereunder, the learned Principal District Munsif, Thoothukudi, dismissed the application filed by the petitioner to condone the delay in filing the application to set aside the exparte decree.
2. Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of respondent.
3. The respondent filed a suit against the petitioner and 13 others in O.S.No.352 of 2008 before the learned Principal District Munsif, Thoothukudi. It was a suit for declaration and consequential injunction. The petitioner failed to appear before the Trial Court and the same resulted in passing an exparte decree. The petitioner, thereafter, filed an application to condone the delay of 791 days in filing the petition to set aside the exparte decree. The learned Trial Judge dismissed the application primarily on the ground of failure on the part of the petitioner to explain each day's delay.
4. The documents available on record would show that the petitioner entered appearance in O.S.No.352 of 2008. Since he failed to file written statement, he was set exparte. In the meantime, he was transferred to Chennai. The petitioner has taken up a contention that the intimation sent by his advocate did not reach him and as such, he was not aware of the exparte decree passed by the Trial Court.
5. While dismissing the application filed by the petitioner in I.A.No.651 of 2012, the learned Trial Judge failed to consider the core issue raised by the petitioner that the decree in O.S.No.352 of 2008 was not on merits. It was a default decree, consequent to the non-appearance of petitioner.
6. The petitioner has taken up certain substantial contentions to invalidate the decree in O.S.No.352 of 2008. In case the application is dismissed and delay is not condoned, it would not be possible for the petitioner to plead and prove his version before the Trial Court.
7. The Supreme Court in M.K.Prasad v. P.Arumugam [2001(6) SCC176, while considering the question regarding delay in applying for setting aside the exparte decree, observed that the Court ought to keep in mind the judgment impugned in the matter, the extent of property involved and the stake of the parties, while deciding an application to set aside the exparte decree.
8. The Supreme Court in Ram Nath Sao v. Gobardhan Sao [2002(3) SCC195, explained the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963. The Supreme Court very clearly observed that explanation for the delay should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case. The Supreme Court said:
"2. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
9. In GMG Eng. Industries vs. ISSA Green Power Solution [2015(6) Scale 551]., the Supreme Court observed that the term "sufficient cause" must receive liberal construction. "8. It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the Appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence."
10. The Supreme Court in N.Balakrishnan v. M.Krishnamurthy [1998(7) SCC123, observed that the superior Court would be free to consider the cause shown for the delay afresh and to come to its own finding. "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court."
11. The learned Trial Judge, without giving valid reasons, simply stated that the reason given by the petitioner is false. In view of the fact that the decree was passed as a 'default decree' and there was no consideration of the merits of the matter and taking into account the fact that the petitioner was working at Chennai during the material time, I am of the view that the impugned order should be set aside.
12. While rendering justice by condoning the delay, Court should make an attempt to compensate the loss sustained by the other side. The suit is of the year 2008. Exparte decree was passed on 13 April, 2009. I am, therefore, of the view that the petitioner must pay substantial amount by way of cost to the respondent.
13. In the result, the order dated 10 March, 2015 is set aside. The application in I.A.No.651 of 2012 is allowed, subject to payment of a sum of Rs.15,000/- (Rupees Fifteen Thousand only) by way of cost. The cost should be paid to the respondent on or before 24 August, 2015, failing which, the application in I.A.No.651 of 2012 will be dismissed summarily without any further reference to this Court.
14. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petition is closed. To The Principal District Munsif Court, Thoothukudi..