Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 31.07.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No.4211 of 2009 M.P.Nos.1 of 2009 and 1 of 2010 K.M.Azmathullah Badsha ... Petitioner Vs 1. Santhi Swarup Patnaik 2. Rama Patnaik @ V.R.Patnaik (deceased) 3. Capt.V.Guruprasad (deceased) 4. Smt.Sudha Mohanthi (deceased) 5. A.S.Patnaik (deceased) 6. Satya Swarup Patnaik (deceased) .... Respondents Civil Revision Petition filed against the order dated 09.09.2009 made in I.A. No.3951 of 2009 in O.S.No.15364 of 1996 on file of the VII Asst. Judge, City Civil Court at Chennai. For Petitioner :- Mr.T.P.Sankaran For Respondents :- Mr.J.Rajakalifulla Senior Counsel for M/s.M.Thenmozhi (R1)
ORDERThe plaintiff in O.S.No.15364 of 1996 on the file of the 7th Assistant Judge, City Civil Court at Chennai is the petitioner. He is aggrieved against the order made in I.A.No.3951 of 2009 dated 9.9.2009 in allowing the application filed under Section 5 of the Limitation Act seeking to condone the delay of 1021 days in filing an application to set aside the exparte decree dated 17.4.2006.
2. The short facts that are necessary for considering this revision are as follows: The plaintiff/petitioner originally filed C.S.No.347 of 1983 on the file of this Court against one Mrs.Rama Patnaik alias V.R.Patnaik seeking for the relief of specific performance of an agreement of sale dated 7.7.1980 and for other reliefs. During the pendency of the suit, the sole defendant died and her legal heirs were brought on record as defendants 2 to 6. The said suit was subsequently transferred and taken on file as O.S.No.15364 of 1996 on the file of the 7th Assistant Judge, City Civil Court, Chennai in pursuant to the enhancement of pecuniary jurisdiction. The above suit came to be dismissed for default on 16.10.1997. An application in I.A.No.20187 of 1997 was filed by the plaintiff to restore the said suit. The said restoration application also came to be dismissed for default on 8.10.2002. Thereafter, I.A.Nos. 919 and 920 of 2004 were filed for restoring I.A.No.20187 of 1997 and for condoning the delay in filing such restoration application. On 22.8.2005, both the applications were allowed and fresh notice was ordered in I.A.No.20187 of 1997. The suit was subsequently restored on 25.1.2006. Thereafter, on 17.4.2006, an exparte decree came to be passed in the said suit. Consequent upon such exparte decree, the plaintiff filed E.P.No.2965 of 2006 to execute the said decree. The 5th defendant filed I.A.No.3951 of 2009 on 23.2.2009 under Section 5 of the Limitation Act, seeking to condone the delay of 1021 days in filing a petition to set aside the exparte decree. The said application was allowed by the Court below on 9.9.2009 on condition to pay a sum of Rs. 5, 000/- as costs . When the cost was refused to be received by the plaintiff, an application was filed before the Court seeking permission to deposit the same and the Court below ordered the said application and the cost was thus deposited into the Court. Challenging the said order dated 9.9.2009, the present Civil Revision Petition is filed by the plaintiff.
3. The contentions of the 5th defendant before the Court below are as follows:- The plaintiff filed the said suit against his mother Mrs. Rama Patnaik alias V.R.Patnaik seeking for the relief of specific performance. She died on 5.1.1984 leaving behind the defendants 2 to 6 as her legal heirs. After her death, each defendant inherited 1/5th undivided share in the suit property. The suit was dismissed for default on 16.10.1997 and consequently his counsel had returned the bundle to him. He was residing at Kottayam, Kerala since 1996 and he did not receive any notice from the Court in any of the proceedings initiated subsequent to the dismissal of the suit for default. Thereafter, he shifted his residence to Hyderabad during March 2005 and he is residing there all along. The 6th defendant died on 17.2.1997 at Kottayam, Kerala. The second defendant died on 17.8.1999 at Hyderabad. The third defendant died on 27.9.2001 at Goa. All the defendants thus had shifted their residence outside the State and out of whom the defendants 2 to 4 and 6 died already and the 5th defendant had no knowledge or notice about the filing of the restoration application and all other subsequent applications in the suit. Further, in pursuant to the dismissal of the suit, the legal heirs of the defendants 2 to 4 and 6 and the 5th defendant had conveyed the suit property to third parties for valuable sale consideration by sale deed dated 23.6.2005 and registered as Document No.680 of 2005. Only on 11.12.2008, the 5th defendant received a letter dated 7.12.2008 from one of the purchasers stating that the plaintiff herein had filed another suit in O.S.No.7229 of 2008 seeking for permanent injunction restraining those purchasers from putting up construction or from alienating the suit property and obtained an interim order of status quo. It was further stated in the said letter that the plaintiff had obtained an ex parte decree in O.S.No.15364 of 1996 and in pursuant to the same he filed E.P.No.2965 of 2006 wherein also an ex parte order came to be passed and consequent upon such exparte order, a sale deed was executed in his favour by the Court. The 5th defendant came to know about the said ex parte decree, only from the said letter sent by the purchasers. The suit is for seeking a joint and indivisible decree of specific performance against all defendants. When the 4th and 6th defendants died on 8.6.1996 and 17.2.1997 respectively , the suit got abated as no legal heirs of those defendants were brought on record before passing the decree. The suit itself was dismissed for default on 16.10.1997 after the death of the said defendants. Likewise when the I.A. for restoration of the suit was also dismissed for default on 8.10.2002, two more defendants viz., second and third defendants died in the meantime on 17.8.1999 and 27.9.2001 respectively. Thus, without bringing the legal heirs of those deceased defendants on record and without notice to the 5th defendant, the exparte decree passed in the suit as well as in the exparte order passed in the E.P. are totally nullity in the eye of law as they were passed against dead persons as well. Therefore, he filed the application as stated supra.
4. The plaintiff as the respondent in the above application filed a counter and contended as follows:- The plaintiff filed I.A.Nos. 919 and 920 of 2004 seeking to condone the delay in filing the application to restore I.A.No.20187 of 1997. In those applications, notice was ordered to all the defendants. When the notice was sought to be served on the counsel appearing for the defendants viz., Mr. T.C.A.Srinivasan, he declined to receive the notice stating that he had no instructions. Therefore, the Court was pleased to order notice to the defendants through Court and the said notices sent on several occasions to the available address of the defendants as appeared in the plaint, were returned unserved. Ultimately, the applications were allowed and the suit was restored to file. The 5th defendant has not assigned any reason as to why he has not enquired with his counsel about the suit proceedings subsequent to the dismissal of the same for default. Even notices in the restoration applications were sent to the defendants in the year 1998 itself to the same address. But they were returned as unserved. The defendants had not received the notice deliberately with a view to avoid the court proceedings and to drag on the same.
5. The 5th defendant ought to have verified about the pendency of the suit before selling the suit properties to third parties. The 5th defendant deliberately made a false statement as if he got knowledge about the said proceedings only on 11.12.2008 that too after receiving a letter from his purchasers. Even then, the affidavit filed in support of the application was signed by him only on 23.2.2009, much later. Only when the plaintiff is furnished with the details of death of the other defendants and the details about their respective legal heirs and their addresses, he would be in a position to implead the legal heirs of the deceased defendants. The 5th defendant deliberately suppressed those informations and failed to furnish the same. Hence he cannot contend that the suit had abated consequent to the death of the defendants 2 to 4 and 6. When the 5th defendant is alive the suit is not abated and consequently he is bound by the decree.
6. Mr.T.P.Sankaran, learned counsel for the petitioner submitted as follows:- The death of the defendants 2 to 4 and 6 were not brought to the knowledge of the Court at any point of time. The affidavit filed by the 5th defendant also did not contain any details of address of those defendants either at Kerala or at Hyderabad. However, the Court has accepted the reason stated in the affidavit. No death certificate was filed and no oral or documentary evidence was produced before the Court by the 5th defendant in support of his claim. When the notices sent to the 5th defendant by the Court were returned in the suit , the substituted service was ordered and thus paper publication was made in the locality of the 5th defendant's last known address. Such service was effected as per Order 5 Rule 20 CPC. Even in respect of other defendants, service of notice was effected through substituted service in the petition to restore. The plaintiff was not aware of the death of the defendants 2 to 4 and 6 at any point of time. Though the 5th defendant filed an application to condone the delay, none of the other defendants or their legal representatives came forward to file any application so far. The 5th defendant has not produced any evidence or examined himself to substantiate his plea. He should have made an enquiry about the status of the suit before effecting sale in favour of third parties during the month of June 2005. Order 22 Rule 10A procedure has not been complied with by not informing the death of other defendants to the plaintiff. The question of abatement or nullity of the decree cannot be gone into while considering the application to condone the delay. Since the sale deed has already been executed in pursuant to the ex-parte decree , nothing survives in the suit. The respondent having sold the property to third parties has no title with him and therefore no cause of action survives for continuing the proceedings. The third party purchasers have not come to the Court challenging the exparte decree.
7. In support of his submission, learned counsel for the petitioner relied on the following decisions.
1. AIR1962SC3611) (Ramlal and Others Vs. Rewa Coalfields Ltd.,) 2. 2005 (3) SCC752(State of Nagaland Vs. Lipok AO and Others Vs.) 3. AIR1917Privy Counsel 179 (Krishnasami Panikondar Vs. Ramasami Chettiar and Others ) 4. AIR1917Privy Counsel 179 (Krishnasami Panikondar Vs. Ramasami Chettiar and Others ) 5. AIR1977MADRAS252( R.M.T.S.S.Dhanasekaran Vs. State Bank of India ) 8. Per contra, the learned Senior Counsel Mr.Raja Kalifullah appearing for the respondents submitted as follows:- The plaintiff filed the suit originally against the mother of the defendants 2 to 6. After her death, the plaintiff filed LR petition and brought the defendants 2 to 6 on record. They were represented through their counsel. The suit came to be dismissed for default on 16.10.1997. Though a restoration petition was filed, no notice was served on the 5th defendant or any other defendants . No substituted service was effected in the application in I.A.No.20187 of 1997 seeking for restoration of the suit. On the other hand substituted service was effected only in the applications filed to restore the application in I.A.No.20187 of 1997 which also came to be dismissed for default. On 17.4.2006, when an exparte decree was passed, the four defendants were already dead and the suit had abated as against those four defendants. Only the 5th defendant was alive to whom also there was no notice. Based on substituted service by publication, the suit was decreed exparte on 17.4.2006. The plaintiff was fully aware of the death of the four defendants as he is living adjacent to the property being the subject matter of the suit . The property was sold in the year 2005 after giving public notice in the English daily inviting objections if any . Thereafter sale transactions were completed and the construction was also completed in 2008 and the same is assessed to property tax. The petitioner who is living adjacent to the suit property was fully aware of the sale and the construction put up in the suit property. Suppressing the said fact, the petitioner fraudulently obtained an exparte decree on 17.4.2006 and filed E.P. and got a sale deed executed through Court on 19.6.2008. After obtaining the sale deed on 19.6.2008 the petitioners filed a suit against the purchasers in O.S.No.7229 of 2008 on 13.10.2008. In the said suit a detailed counter was filed setting out the factum of death of the defendants 2 to 4 and 6. In the course of enquiry in the interim appellations filed in O.S.No.7229 of 2008, 12 documents were filed by the respondents including the the death certificates of the defendants 2 to 4 and 6. Therefore, the petitioner was aware of the death of those defendants. Under Order 22 Rule 4 CPC, a duty is cast upon the counsel to bring the LRs of the deceased defendants. Just because the counsel was not given notice about the death of the defendants, that would not make the decree passed against dead persons valid nor the same will bind the legal heirs of the deceased defendants. A decree passed against a dead person is a nullity. When it is a suit for specific performance and decree is also indivisible, the decree as against the 5th defendant is also not enforceable. The 5th defendant had given sufficient reason for condoning the delay. The reasonable cause shown by him was not specifically disputed by the petitioner. The court below has exercised its discretion and allowed the application by imposing cost. The balance of convenience is in favour of the 5th defendant. On the date of sale by the defendants, no suit was pending and the sale deed was valid and binding on the plaintiff. Unless the abatement is set aside, a suit cannot be said to be pending.
9. In support of his submission, learned counsel for the respondent relied on the following decisions.
1. 1998 (7) SCC123(N.Balakrishnan Vs. M.Krishnamurthy) 2. 2002 (3) SCC195(Ram Nath Sao @ Ram NathH Sahu and Others Vs. Gobardhan Sao and Others) 3. 1988 (1) L.W. 1 ( V.Padmanabhan Vs.R.R.Shah and Others) 4. 2011 (1) L.W. 53 (P.Subramanian (Died) and Others Vs. S.Viswasam 5. 2010 (5) L.W. 536 (N.Balasubramanian and Others Vs. K.Kamala) 6. 1997 (1) CTC580(Sundarammal Vs. Karuppannan and Another) 7. 2010 (3) LW. 261( Haji Mohammed Raffique Vs. B.Sivabakkiyam and others) 8. 1995 (2) CTC329( Union of India and Another Vs. K.Abborvam (Deceased) and 15 Others) 9. AIR1992Madras 159 (Elisa and Others Vs. A.Doss) 10. AIR1976Calcutta 337 (1) (Chhotalal Hariram and Another Vs. Dilip Kumar Chatterjee and Others) 10. From the perusal of pleadings of the respective parties and the arguments advanced by the respective counsels , the point that arise for consideration in this case is as to whether the first respondent\5th defendant had shown sufficient cause in seeking to condone the delay of 1021 in filing the set aside petition and as to whether the Court below is justified in accepting the reasons stated by the first respondent in support of such application.
11. For proper appreciation of the facts and circumstances of the case, the following dates and events are relevant to be noted. The petitioner herein filed the suit for specific performance before the High Court in C.S.No.347 of 1983 on 24.7.1983. The said suit was filed against one Mrs. Rama Patnaik alias V.R.Patnaik. The sole defendant died on 5.1.1984. Her legal heirs were brought on record as defendants 2 to 6. The suit was transferred to the file of the City Civil Court, Chennai during the year 1996 and renubmered as O.S.No.15364 of1996. The fourth defendant died on 8.6.1996. The 6th defendant died on 17.2.1997. The suit was dismissed for default on 16.10.1997. I.A.No.20187 of 1997 was filed by the plaintiff/ petitioner herein for restoration of the suit. The second defendant died on 17.8.1999.The third defendant died on 27.9.2001. I.A.No.20187 of 1997 was dismissed for default on 8.10.2002. I.A.Nos. 919 and 920 of 2004 were filed one for restoration of I.A.No.20187 of 1997 and the other containing the delay in filing such restoration application. In both the applications as well as in I.A.No.20187 of 1997 all the defendants were shown as party respondents. Publication of notice was ordered in I.A.Nos. 919 and 920 of 2004 during the month of August 2005. Publication was effected in Dhina Boomi, Tamil Daily. On 22.8.2005, I.A.Nos. 919 and 920 were allowed. On 25.1.2006, I.A.No.20187 of 1997 was allowed. On 17.4.2006, an exparte decree was passed. E.P.No.2965 of 2006 was filed for execution of the sale deed . Notice sent in E.P. Was returned unserved. Hence, publication was ordered. Thereafter an exparte order was passed on 19.6.2008. Consequently, sale deed was executed by the Court on 19.6.2008 in favour of the plaintiff on behalf of the respondents/defendants. I.A.No.3951 of 2009 was filed to condone the delay of 1021 days to set aside the exparte decree. On 9.9.2009 the said I.A. was allowed on payment of cost of Rs.5,000/-. The said cost was deposited in the court as the plaintiff refused to receive the same.
12. Going by these facts and circumstances with dates and events, it is clear that on 16.10.1997, when the suit was dismissed for default, the 4th and 6th defendants were not alive and they died on 8.6.1996 and 17.2.1997 respectively. It is also a fact that legal heirs of those deceased defendants 4 and 6 were not brought on record. When the plaintiff filed an application to restore the said suit, he had shown only the defendants including the deceased persons as respondents in the application. Pending the said application, the second and third defendants died on 17.8.1999 and 27.9.2001. Subsequently, the restoration application itself came to be dismissed for default on 8.10.2002. Thereafter, when the plaintiff filed two applications in I.A.Nos. 919 and 920 of 2004 seeking to restore I.A.No.20187 of 1997, he had arrayed only the original defendants in the suit as party respondents including the dead persons viz., the defendants 2,3,4 and 6. No doubt, a paper publication was ordered in the said I.A.Nos.919 and 920 of 2004 for effecting service on the defendants/respondents. Such paper publication was effected in Tamil Daily ".Dina Boomi".. Consequent upon such paper publication, those two applications were allowed on 22.8.2005. Thereafter, I.A.No.20187 of 1997 also came to be allowed on 25.1.2006 based on the effecting of paper publication. Thus, it could be seen that the paper publication effected in the interim applications were in respect of the defendants including the dead persons viz., the defendants 2,3 4 and 6. Based on the said substituted service, the trial Court passed an exparte decree on 17.4.2006.
13. Insofar as the first respondent herein, who is the petitioner before the Court below, is concerned, it is his case that he has shifted his residence to Kottayam in Kerala State during the year 1996 and thereafter shifted to Hyderabad in the month of March 2005 and he is residing in the said place all along. It is his further case that after the dismissal of the suit for default on 16.10.1997, his counsel had returned the bundle to him and thereafter he did not receive any notice from the Court in respect of any proceedings.
14. Thus, it has to be seen as to whether any notice was served on the first respondent/ 5th defendant in any proceedings after the dismissal of the suit for default on 16.10.1997 and as to whether effecting of paper publication in ".Dina Boomi ". a Tamil Daily, during the month of August 2005 could be considered as an effective service on the first respondent/ 5th defendant, when he is claiming that on the date of such publication he was residing at Hyderabad outside this State.
15. Insofar as the first respondent/5h defendant is concerned, no doubt the paper publication was effected as contemplated under Order 5 Rule 20 CPC, wherein under sub-clause (1A) such publication shall be effected in a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
16. No doubt, effecting of paper publication in a daily newspaper as contemplated under sub-rule (1A) has to be considered as an effective service of notice as contemplated under Order 5 Rule 20(2). However, if it is pleaded and proved that such defendant was not at all residing or carrying on business or personally working for gain in the said address and was residing elsewhere outside the locality where the newspaper was in circulation, then certainly it is for the Court to consider such claim to find out as to whether such publication is sufficient to hold that there was an effective service of notice on such person.
17. In this case, the claim of the fifth defendant that he was residing outside the State of Tamil Nadu from 1996 and more particularly during the year 2005, he was residing at Hyderabad, has not been disputed or disproved by the plaintiff. To the said averment made at paragraph 4 of the affidavit of the 5th defendant, the plaintiff filed a counter by only denying such allegation without furnishing any other facts to show and establish that the 5th defendant was actually residing within the State of Tamil Nadu during that time. In fact, the plaintiff had stated that it is the duty of the 5th defendant to follow up the case through his Advocate or otherwise. Therefore, when the fifth defendant was not actually residing within the locality covering the circulation of the newspaper, then such publication made cannot be construed as an effective service on the fifth defendant. Even though the said publication was made in respect of the last known address of the fifth defendant, when a person comes and pleads before the Court that he was residing elsewhere and when such pleading was not disproved by the other side, certainly, the Court will have to hold that there was no service of notice effectively made on the said person, more particularly while considering an application seeking to condone the delay for filing a set aside petition. The cause thus shown by the fifth defendant is undoubtedly a sufficient cause within the meaning of Section 5 of the Limitation Act .
18. Further, it is seen that in I.A.No.20187 of 1997 paper publications were effected also in Indian Express, Karnataka , apart from effecting in Dina Boomi of Chennai and Puducherry edition. When the first respondent is residing at Hyderabad, during the relevant point of time, effecting paper publication in Indian Express of Karnataka Edition, would again show that there was no effective service of notice on the first respondent, as admittedly no such paper publication was effected in any newspaper having circulation in Hyderabad or for that matter in Andhra Pradesh State. Therefore, I am of the view that insofar as the first respondent/ 5th defendant is concerned, there was no service of notice in any of the proceedings that had been initiated subsequent to the dismissal of the suit for default on 16.10.1997.
19. Learned counsel for the petitioner argued that it is for the first respondent to check up with his counsel to find out the status of the suit , even though he is residing outside the State. I am unable to appreciate such contention. When a suit was dismissed for default and the counsel had also returned the bundle, there was no necessity or occasion for a person to meet his counsel to check out the stage of the suit even before receiving any notice from the Court. Therefore, the fifth defendant cannot be expected to track the stage of the suit after its dismissal for default.
20. The suit is one for specific performance originally filed against the mother of the defendants 2 to 6. After her death, they were brought on record as legal heirs of the sole defendant. When the relief sought for is for execution of the sale deed, such relief is certainly indivisible relief and all the defendants have to jointly execute the sale deed. When that being the position, the first respondent is entitled to maintain the application seeking to set aside the exparte decree even though the legal heirs of the other defendants have not chosen to file any such application . In my considered view, when the legal heirs were not brought on record the paper publications were effected on dead persons and when the decree itself came to be passed against the dead persons as well, they can simply ignore the said decree as nullity.
21. Learned counsel for the petitioner would submit that it is the duty of the defendants' counsel to inform the death of the defendants so as to enable the plaintiff to bring the legal heirs on record. In support of such submission, the learned counsel relied on Order 22 Rule 10A of CPC. A perusal of the said provision only shows that a pleader is duty bound to communicate to the Court with regard to the death of a party when he comes to know of the death of that party. Here it is not pleaded or proved that the counsel of the defendants knew about the death of the defendants 2 to 4 and 6 and in spite of such knowledge he did not inform the court and give notice to the other side. Therefore, the said submission of the learned counsel cannot be accepted. Since on the date of the exparte decree, the defendants 2 to 4 and 6 were not alive and died much prior to such decree, the execution of the sale deed by the Court on behalf of the such dead persons also cannot with stand the scrutiny of law. Therefore, the petitioner /plaintiff cannot take advantage of the execution of the sale deed in his favour for rejecting the application to condone the delay.
22. A perusal of the order passed by the Court below would show that it has taken into consideration of non-service of notice on the first respondent and the death of other defendants, even before passing of the exparte decree. Consequently, it has come to the conclusion that the delay has been explained with sufficient cause. Recently, I have considered similar issue in a decision reported in 2013 (3) CTC220( N.P.Srinivasan Vs.S.Santhanalakshmi) wherien it is held at paragraph 13 as follows:- ".13. No doubt the delay of 1828 days is enormous and the respondent is bound to satisfy the Court with sufficient cause for condoning the said delay. Going by the pleadings of the respective parties before the Court below as well as specific finding rendered by the learned Judge, satisfying with the reasons adduced by the respondent, more particularly on the ground of non-service of summons, in my considered view, it is to be held that the respondent had discharged her burden of proving sufficient cause , even though the delay was for a long period. ".
23. It has been repeatedly held that in so far as the application under Section 5 of the Limitation Act is concerned, a discretion is vested on the Court and by exercising such discretion, if the Court comes to the conclusion that the delay has to be condoned, then such order need not be interfered with casually unless such order appears to be perverse.
24. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court reported in 1998 (7) SCC123(N.Balakrishnan Vs. M.Krishnamurthy), wherein it is observed at paragraph 9 as follows: ".9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation 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 uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a 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 revisional 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 untramme lled by the conclusion of the lower court.".
25. The said decision was considered in a recent decision of the Apex court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai (2012 (5) SCC157, wherein it is observed at paragraph 24 as follows:- ".24. What colour the expression ".sufficient cause". would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.".
26. Following are the decisions relied on by the learned counsel for the petitioner and the relevant paragraphs are extracted hereunder:- 1. AIR1962SC3611) (Ramlal and Ot hers Vs. Rewa Coalfields Ltd.,) 12. It is however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done ; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it.
2. 2005 (3) SCC752(State of Nagaland Vs. Lipok AO and Others Vs.) The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N.Balakrishnan Vs. M.Krishnamurthy (1997 (7) SCC123 it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. 9.What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co., Ltd., Vs.Shanti Misra (1975 (2) SCC840 this Court held that discretion given by Section 5 should not be defined or cyrstalised so as to convert a discretionary matter into a rigid rule of law. The expression ".sufficient cause". should receive a liberal construction. In Brij Indar Singh Vs. Kanshi Ram (AIR1917PC156 it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant aced with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR1969SC575, a Bench of three Judges had held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out of any delay cannot be refused to be condoned. ".
3. AIR1917Privy Counsel 179 (Krishnasami Panikondar Vs. Ramasami Chettiar and Others ) ".It is the duty of a litigant to know the last day on which he can present his appeal, and if through delay on his part it becomes necessary for him to ask the Court to exercise in his favour the power contained in Section 5 of the Indian Limitation Act, the burden rests on him of adducing distinct proof of the sufficient cause on which he relies. ".
4. AIR2009Madras 114 ( P.Baskaran Vs V.Ayyakannu Chettiar and others) 26. In this connection, this Court intends to gather the intention of the legislature while deriving its central idea, in embodying two provisions in Rules 19 and 20 in Order 5. Under Order 19, the Court is expected to declare that the summons have been duly served after fulfilling the legal formalities as contained in Rule 19, whereas the Court is anticipated to get satisfaction that there is reason to believe that the defendant is keeping out of the way of avoiding the service, in Rule 20. 28. While the intention of the legislature is gathered in such a way, it has to be inevitably held that no duty is cast upon the Court under Rule 20 to explicitly express its satisfaction by recording the reasons and same ought to be inferred from other circumstances, namely, the earlier hearings where service of summons was either defeated on behalf of the defendant or made impossible by any other means. (emphasis supplied) 29. In such view of this matter, the contention that the Court has to furnish reasons for its satisfaction under Rule 20 has to be discountenanced. Following the principle laid down by the Supreme Court, it is observed that the Court is not bound to record reasons for satisfaction. It is also regarded that Rule 20 has not been drafted in such a way, making it obligatory or mandatory on the part of the Court to perform such function. It is not a statutory duty cast on the Court.
5. AIR1977MADRAS252( R.M.T.S.S.Dhanasekaran Vs. State Bank of India ) Where in a mortgage suit the defendant had been served by substituted service by publication in a newspaper and at the stage of final decree proceedings he had been served by affixture and both the services were treated by the Court as sufficient service it should be taken that the defendant was duly served as per the provision of O.5 R.20 read with O.9 R.13 CPC AIR1927Madras 507".
27. From the perusal of the above decisions of the Hon'ble Supreme Court and this Court it is clear that if sufficient cause is shown, the Court by exercising its discretion may condone the delay. Likewise, sufficient cause shown would naturally be limited only to such facts as the Court may regard as relevant. Not the length of the delay but it is only the sufficiency of the cause counts. The burden is on the person to prove that the cause shown is sufficient to condone the delay. It is also true that notice by affixture as well as publication in newspaper were treated by the Courts as sufficient service. No doubt, all these principles have to be applied based on the facts and circumstances of each case. On the other hand, if it is proved that there was no sufficient and effective service of notice at all, then in the absence of such service of notice, the Court by exercising its discretion can allow the application seeking to condone the delay as has been rightly done in this case. Thus, I am of the view that all these decisions relied on by the learned counsel for the petitioner do not help the petitioner in any manner as the facts and circumstances of those cases are totally different and distinguishable.
28. Following are some of the decisions relied on by the learned counsel for the first respondent. I am not referring the other decisions cited by him as I found that they are not applicable to the facts of the present case.
1. 1998 (7) SCC123(N.Balakrishnan Vs. M.Krishnamurthy): ".9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation 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 uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a 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 revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.".
2. 2002 (3) SCC195(Ram Nath Sao @ Ram NathH Sahu and Others Vs. Gobardhan Sao and Others) ".12. 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 bona fide can be imputed to the defaulting party.".
3. 1988 (1) L.W. 1 ( V.Padmanabhan Vs.R.R.Shah and Others)(DB). ".3. The learned counsel for the respondents referred to O. 5, R. 20 (2), C.P.C., and contended that substituted service by an order of the Court shall be as effective as if summons had been duly served on the defendant and therefore, the service effected in this case shall be deemed to have been served on the defendant personally. We are unable to agree with this on the facts and circumstances of this case. As we have already stated, the normal procedure has not been followed in this case after the first summon was returned unserved, and the second summon was not sent to the defendant. Apart from that, we have also stated that the plaintiffs were aware that the defendant was not residing in that address, and therefore, sending a summon to wrong address and thereafter saying that the defendant is not residing there cannot be a ground for ordering substituted sevice.
4. We are satisfied that this is a just case where the exparte decree will have to be set aside for more than one reason,- apart from the doubt as to the correctenss of the procedure adopted and the non-service of the summons and the defendant admittedly residing in a different place subsequent to 1.12.1980 subsequent to which date alone summons in the suit were sent. The interests of a number of other parties are also involved in this case. As already stated, the defendant has sold the property on the basis that the agreement between him and the 1st plaintiff stands cancelled, and the third party's interest has come in, and they have been disputed and the number of proceedings are pending in regard to the same. In the interests of justice, we are of the view, that the suit will have to be decided on merits.".
4. 2011 (1) L.W. 53 (P.Subramanian (Died) and Others Vs. S.Viswasam ".22. The trial Court, after setting the defendants exparte, posted the matter for evidence and after recording the evidence on the adjourned day, decreed the suit very mechanically. The prayer in the suit was for a decree of specific performance. Even though it was purely a discretionary remedy, there was no attempt made by the trial Court to consider the issue as to whether the respondent has made out a case for grant of such equitable remedy. The decree was granted in a very casual manner as if the Court was bound to grant a decree,in case the defendants were set exparte. The judgment and decree in O.S.No.109 of 1999 contains no reasons much less minimum reasons for granting a decree of specific performance. ......... ........ ......
24. It is trite that sufficiency of the explanation alone is the relevant criteria and not the number of days. Similarly, there is no presumption of any kind that the delay in approaching the Court is deliberate in nature and as such, Section 5 of the Limitation Act should not be exercised in case of unreasonable delay.
28. The mere fact that the sale deed was executed in favour of the respondent alone cannot be a reason to reject the application filed by the petitioners to condone the delay. Admittedly, the property is in the possession of the petitioners. The judgment in O.S.No.109 of 1999 was also not on merits. It was purely an exparte decree without considering the merits of the matter. There was nothing in the judgment and decree to show that the Court has considered the principles governing the grant of discretionary remedies before decreeing the suit. Absolutely, there were no reasons shown in support of the judgment.".
5. 2010 (3) L.W. 261 ( Haji Mohammed Raffique Vs. B.Sivabakkiyam and others) ".16.It cannot be denied that Section 51 of the Limitation Act enjoins the Courts to deliver substantial justice disposing of the matters on merits. As a matter of fact, the term 'sufficient cause' is elastic enough to apply the law in a meaningful manner to subserve the ends of justice. By and large, a party does not stand to benefit by projecting an application late. Refusing the condone the delay may result in a good case being thrown out at the threshold and cause of justice being defeated. As against this when the delay is condoned, the maximum that can happened is that a cause will be decided on merits, by a Court of Law, of course, after hearing the litigants. There is no presumption that the delay has occasioned wantonly or on account of malafides. By resorting to the delay, a party does not gain by himself instead of he runs a grave risk. Also when substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred for the other side cannot claim to have any vested right in injustice being done because of a non-deliberate delay. It must be noted that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.".
29. All the above decisions relied on by the learned counsel for the respondents would show that once the Court accepts the explanation as sufficient, it has to exercise its discretion positively and against such decisions normally the superior Courts should not interfere with muchless under the revisional jurisdiction, unless such exercise of discretion is proved to be arbitrary or perverse. Thus, I find that the Court below has rightly exercised its discretion and allowed the application to condone the delay, with which I see no perversity or illegality. Thus, I hold that the order passed by the Court below does not warrant any interference under this Revisional jurisdiction.
30. Learned Senior Counsel appearing for the first respondent also submitted that the first respondent is prepared to reimburse the expenses incurred by the petitioner in getting the sale deed executed apart from the cost of Rs.5,000/- imposed by the Court below. He also submitted that the said cost of Rs. 5,000/- has already been paid by the first respondent. In support of his submission, he also relied on the decision reported in 1997 (1) CTC580(Sundarammal Vs. Karuppannan and Another), wherein this Court directed the petitioner therein to incur the expenses towards the execution of the sale deed. The relevant paragraph No.9 of the said order is extracted hereunder:- ".9. It is represented that the sale deed itself has been executed, in view of the order passed in E.P.No.149 of 1994. So whatever expenses are incurred by the respondents towards the execution of the sale deed, the petitioner has to pay the said amount to the respondents. The respondents are directed to furnish those particulars of expenses regarding the execution of the sale deed, within two weeks from this date to the counsel for the petitioner and the petitioner is directed to pay that amount, within two weeks from the date of the receipt of the details of such expenses to the respondents, failing which , the order dated 14.6.1996 passed in I.A.No.79 of 1996 will stand restored. Subject to the above observations, this revision petition is allowed. There will be no order as to costs. Consequently C.M.P.No.14428 of 1996 is dismissed. ".
31. Thus, by considering the said submission made by the learned Senior Counsel and by considering the bonafide of the respondent in coming forward to incur such expenses, while confirming the order passed by the Court below, I further direct the first respondent herein to incur the expenses met out by the petitioner herein towards the execution of the sale deed and pay the same directly to the petitioner. For such purpose, the petitioner is directed to furnish those particulars of expenses regarding the execution of the sale deed, within two weeks from the date of receipt of copy of this order and on receipt of such particulars, the first respondent is directed to pay the said amount within two weeks thereafter and subject to the above condition, the order of the Court below is confirmed. Consequently, the Civil Revision Petition deserves no merits and accordingly the same is dismissed. The connected M.Ps are closed. No costs. 31.07.2013 Index:Yes/No Internet:Yes/No krr/ To The Registrar, City Civil Court, Chennai. K.RAVICHANDRABAABU,J.
Krr/ Pre-Delivery Order in C.R.P.(NPD) No.4211 of 2009 Dated:- 31-07-2013