Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.01.2014 CORAM : THE HONOURABLE Mr.JUSTICE K.KALYANASUNDARAM C.R.P(NPD).No.1820 of 2010 and M.P.No.1 of 2010 R.Ratha ..Petitioner versus 1.A.Raju 2.Thangamani ..Respondents Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 09.12.2009 in I.A.No.1682 of 2006 in O.S.No.33 of 2002 on the file of the Sub-ordinate Judge, Namakkal, Namakkal District.
For Petitioner : Mr.M.S.Palaniswamy For Respondents : Mr.S.Mukunth for Sarvabhauman Associates ORDER
This Civil Revision Petition has been filed by the petitioner against the order dated 09.12.2009 in I.A.No.1682 of 2006 in O.S.No.33 of 2002 on the file of the Sub-Ordinate Judge, Namakkal, Namakkal District.
2.The Facts in Nutshell:- The petitioner is the plaintiff in the suit in O.S.No.33 of 2002 on the file of the Sub-Ordinate Court, Namakkal.
She filed the suit for specific performance on the basis of the agreement of sale dated 02.02.2000.
3.Though the respondents received summon in the suit, but they did not choose to file their written statement in time and hence, an ex-parte decree was passed against them, on 09.06.2004.
The petitioner filed an application in E.P.No.79 of 2006 for execution of sale deed.
The respondents received notice in the execution proceedings, but they did not contest the petition.
Hence, they were set ex-parte and a Sale deed was executed on 24.11.2006.
3.
Subsequently, the fiRs.respondent alone filed I.A.No.1682 of 2006 to condone the delay of 881 days in filing the application to set aside the ex-parte decree stating that he was engaged in vessel business and he used to go to North India and return after 5 or 6 months.
It is stated by the fiRs.respondent that in the month of March 2004, he left to North India and came back only in July 2004.
In the meanwhile, the letter sent by his counsel did not reach him, and only after contacting his counsel, he came to know about the ex-parte decree.
He has further stated that he was suffering from chicken guinea during the relevant time and was bedridden.
The petitioner filed his detailed counter and resisted the petition.
The learned Sub-Judge, Namakkal condoned the delay on payment of cost of Rs.2500/-.
Aggrieved by the said order, the present revision is filed.
4.Heard Mr.M.S.Palanisamy, learned counsel for the petitioner and Mr.S.Mukunth, learned counsel for the respondents.
5.The learned counsel for the petitioner submitted that there were two defendants in the suit and the petition to condone delay was filed only by the fiRs.defendant with bald and vogue allegations.
The period of ailment was not clearly stated in the affidavit.
He further submitted that with regard to the second defendant, he was very well available in the native place, but he did not come to defend the suit and there is no proper explanation for his non participation in the suit proceedings.
The learned Sub-ordinate Judge, without considering these aspects and in an arbitrary manner condoned the delay.
He relied on the judgment reported in Lanka Venkateswarlu (D) by LRs.versus State of A.P.and Others [2011 (5) MLJ167(SC)].wherein it has been held that the concept of 'liberal approach', 'justice oriented approach', 'substantial justice' cannot be employed in an arbitrary manner to condone the delay.
6.Per contra, the learned counsel for the respondents submitted that the learned Sub-Ordinate Judge, Namakkal has exercised his discretionary jurisdiction in favour of the respondents in condoning the delay and what weighed in the mind of the learned Sub-Ordinate Judge was to do substantial justice by giving opportunity to the parties to participate in the suit proceedings, that should not be interfered by this case.
7.The learned counsel further contended that the transaction between the petitioner and the respondents was a loan transaction and the respondents were taken to the office of the petitioner and under the guise of giving loan, the petitioner obtained signature in the sale agreement, that the suit properties are worth Rs.10 lakhs on the date of agreement, but the agreement was made as if they agreed to sell the property for Rs.2,10,000/-.
Hence, the Respondents should be given opportunity to defend their case.
The learned counsel relied upon the judgments reported in 1)2010 (5) CTC786[Subbulakshmi versus Punjab and Sind Bank rep.
by its Manager, No.165, Thambu Chetty Street, Chennai-600 002 and others].2)2011 (4) TLNJ223[Latha Sridharan versus Rajkumar and another].3)2011 (11) Supreme Court Cases 480 [Union of India versus Giani].4)1998 (II) CTC533[N.Balakrishnan versus M.Krishnamurthy].8.In 2011 (5) MLJ167(SC) [Lanka Venkateswarlu (D) by LRs.versus State of A.P.and others]., in that case an application was filed to condone the delay of 3703 days in filing the application to bring the legal representatives on record.
The High Court, though found that there was negligence and severe latches on the part of the appellants and their counsel, condoned the delay.
In such circumstances, the Hon'ble Supreme Court, while setting aside the order has held as follows: ".26.We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable.
The concepts such as ".liberal approach"., ".justice oriented approach"., ".substantial justice".
cannot be employed to jettison the substantial law of limitation.
Especially, in cases where the Court concludes that there is no justification for the delay.
In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties.
We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasMs.The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.
Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary poweRs.All discretionary poweRs.especially judicial poweRs.have to be exercised within reasonable bounds, known to the law.
The discretion has to be exercised in a systematic manner informed by reason.
Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary poweRs.27.The order of the High Court, in our opinion, is based purely on the personal perceptions and predilections of the Judges on the bench.
The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality.
In its desire to castigate the Government pleaders and the Court staff, the High Court has sacrificed the ".justice oriented approach"., the bedrock of which is fairness and impartiality.
Judges at all levels in this country subscribe to an oath when entering upon office of Judgeship, to do justice without fear or favour, ill-will or malice.
This commitment in form of a solemn oath is to ensure that Judges base their opinions on objectivity and impartiality.
The fiRs.casualty of prejudice is objectivity and impartiality.
It is also well known that anger deprives a human being of his ability to reason.
Judges being human are not immune to such disability.
It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice.
We may notice here the observations made by a Constitution Bench of this Court in the case of State of U.P.versus Mohammad Naim (1964) 2 SCR363 which are of some relevance in the present context.
In paragraph 11 of the judgment, it was observed as follows: ".If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this Court.
At the same time, it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint.
It is not infrequent that sweeping generalisations defeat the very purpose for which they are made.
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider a)whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; b)whether there is evidence on record bearing on that conduct, justifying the remarks; and c)whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.".
The facts in the case on hand is totally different, hence the above Judgment is not applicable to this case.
9.The Hon'ble Apex Court in AIR1998SC3222[N.Balakrishnan versus M.Krishnamurthy].has held as follows: ".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 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 per verse.
But it is a different matter when the fiRs.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 untramelled by the conclusion of the lower Court.
Rules of limitation are not meant to destroy the rights of parties.
They are meant to see that parties do not resort to dilatory tactis, but seek their remedy promptly.
The object of providing a legal remedy is to repair the damage caused by reason of legal injury.
The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered.
Time is precious and wasted time would never revisit.
During the efflux of time, newer cause would sprout up necessitating newer persons to seek legal remedy by approaching the Courts.
So, a lifespan must be fixed for each remedy.
Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy.
The law of limitation is thus founded on public policy.
It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).Rules of limitation are not meant to destroy the rights of the parties.
They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.
The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the door against him.
If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor.
But when there is reasonable ground to think that delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation.
While condoning the delay, the Court should not forget the opposite party altogether.
It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses.
It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss.".
the same view has been followed in 2010 (5) CTC786 2011 (11) SCC480and 2011 (4) TLNJ223 11.In the above Judgment, the Hon'ble Supreme Court held that while considering the delay petitions, once the trial 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 of arbitrary or perverse.
12.In this case, even though there are latches on the part of the respondents, the trial Court has condoned the delay, to provide opportunity to defend their case.
Further, in view of the defence taken by the respondents, their case cannot be thrown away, at the threshold.
In the light of the judgments of the Hon'ble Supreme Court, I do not find any illegality or perversity in the order passed by the trial Court but at the same time, cost imposed on the respondent is not sufficient and hence, a sum of Rs.10,000/- (Rupees Ten thousand only) is imposed, in addition to Rs.2,500/-(Rupees Two thousand and five hundred only) imposed by the trial Court.
The fiRs.respondent is directed to pay the additional costs of Rs.10,000/- (Rupees Ten thousand only)to the petitioner within a period of six weeks from today.
On such compliance, the learned Sub-Ordinate Judge, Namakkal, is directed to decide the suit on merits and dispose of the same within a period of three months thereafter.
13.In the result, the Civil Revision Petition is disposed of with the above modification.
Consequently, connected Miscellaneous Petition is also dismissed.
03.01.2014 Index :Yes Internet :Yes DP K.KALYANASUNDARAM, J.
DP To The Sub Court, Namakkal.
C.R.P(NPD).No.1820 of 2010 and M.P.No.1 of 2010 03.01.2014