Full Judgment
(Prayer: Prayer in CRP(NPD)(MD)No.727 of 2011:This revision is filed under Section 115of the Civil Procedure Code, against the order made in I.A.No.82 of 2009 in O.S.No.912 of 2002 on the file of the 2nd Additional Sub Judge, Trichirappalli, dated 13.12.2010.
Prayer in CRP(NPD)(MD)No.728 of 2011:This revision is filed under Section 115of the Civil Procedure Code, against the order made in I.A.No.84 of 2009 in O.S.No.909 of 2002 on the file of the 2nd Additional Sub Judge, Trichirappalli, dated 13.10.2010.)
Common Order
1. These revisions are directed against the order passed by the II Additional Subordinate Judge, Trichy and made in I.A.No.82 of 2009 in O.S.No.912 of 2002 and in I.A.No.84 of 2009 of O.S.No.909 of 2002, dated 13.10.2010 respectively.
2. The first respondent as plaintiff instituted the suit against the petitioner for specific performance of agreement, dated 27.03.2000. The petitioner filed his written statement, but subsequently due to his absence, an ex-parte decree was passed against him on 08.02.2013.
3. An application was taken out by the petitioner in I.A.No.912 of 2002 to condone the delay of 1427 days in filing the application to set aside the ex-parte decree contending that he shifted his residence. So, a letter addressed by his counsel did not reach him. Further, he was suffering from jaundice.
4. The application was resisted by the respondent by filing a counter. It is stated in the counter that the reasons assigned in the affidavit are mutual contradictory in nature and the reasons are false and unbelievable.
5. The petitioner gave evidence as PW1. In his evidence, PW1 has admitted that even before filing of the suit, he shifted his residence and new address was given to his the counsel, subsequently he did not contact his counsel, either in person or through phone for about four years and he came to know about the ex-parte decree only after receiving notice in the execution petition and the condone delay petition was filed after 40 to 50 days thereafter. The trial court dismissed the application.
6. Heard Mr.R.Sundar Srinivasan, learned counsel appearing for the petitioner and Mr.G.S.S.Ashok Adhithiyan appearing for the respondents 2 to 4 and perused the materials available on record.
7. The learned counsel for the petitioner would submit that the suit was filed for specific performance; that the plaintiff has not proved his readiness and willingness from the date of the execution of the agreement till the date of decree and that the petitioner has to be given an opportunity to contest the case, placing reliance on the following decisions in support of his contention:-
1. (2002)3 SCC 195 [Ram Nath Sao alias Ram Nath Sahu and others Vs. Gobardhan Sao and Others] ; and
2. Unreported judgment made in CRP(NPD)(MD)No.1263 of 2014, dated 15.07.2015 [M.Sakthivel and two others vs. Sankareswari].
8. In the 1st decision cited above, the Hon'ble Apex Court held the words 'sufficient cause' in Section 5 of the Limitation Act should receive liberal construction.
12.A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words 'sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V.Kuntal Kumari [AIR 1969 SC 575] and State of W.B. V. Administrator, Howrah Municipality [(1969) 1 SCR 1006.
9.In the unreported judgment of this court made in CRP(NPD)(MD)No.1263 of 2014, dated 15.07.2015, this court held that even in a suit filed for specific performance, the trial court has to frame issues and decide as to whether the plaintiff is entitled to get a decree for specific performance, even though the defendant remained ex-parte.
10. Learned counsel for the respondents made submissions in support of the view taken by the trial court.
11. It is settled law that the length of delay is immaterial and the acceptability of the explanation is the sole criteria.
12. It is appropriate to refer the decision reported in 2013(5) CTC 547 [Esha Bhattacharjee Vs. Managing Committee of Raghunathpur, Nafar Academy and others], wherein the Hon'ble Supreme Court has held as follows:-
15.From the aforesaid authorities the principles that can broadly be culled out are:-
(i)There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii)The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii)Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv)No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v)Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi)It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii)The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii)There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix)The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x)If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii)The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii)The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a)An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b)An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c)Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d)The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.
13. In a recent decision reported in 2015(5) CTC 534 [H.Dohil Constructions Co. Pvt. Ltd. vs. Nahar Exports Ltd.], the Hon'ble Supreme Court has held as follows:-
23.When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.
14. In the instant case, it is not the case of the petitioner that he has not received the summons in the suit. Indisputably, suit summon was served and the petitioner also filed a written statement through his counsel. However, due to the reasons best known to him, he consciously left the suit to be decreed for ex-parte on 08.12.2003 and she chose to file the application on 12.01.2008 with a delay of 1427 days. The reason assigned by the petitioner that since she shifted her residence, the communication sent by her counsel did not reach, was found to be false for the reason that she admitted in her evidence that her new address was furnished to the counsel and subsequently, she did not contact him. Her illness was not supported by any documentary evidence.
15. The trial court elaborately considered the reasons given by the petitioner and found that the petitioner has not shown sufficient cause for condoning the enormous delay. In my considered view, the decisions relied on by the counsel for the petitioner have no application to the case on hand and the reasons given by the petitioner is only a make believe story and lacks in bona fides. The parties, who failed to take part in the judicial proceedings and after a lapse of few years, approach the court complaining that the judgment is not in accordance with the provisions of Civil Procedure Code, does not deserve appreciation for the reason that the procedural laws are hand maids of justice and the court has primary duty to render justice to the parties. And on the ground of technicalities, the judgment cannot be set aside, unless the parties show sufficient cause for their non appearance before the trial court, establish patent illegality and prejudice caused to them.
16. In the cases ofEsha Bhattacharjee and H.Dohil Constructions Co. Pvt. Ltd, referred supra, it is observed that the court has to draw a distinction between inordinate delay and a delay of short duration and that first category warrants strict approach. Further, the conduct, behavior and attitude of a party relating to its inaction or negligence are relevance factors to be taken into consideration. Applying the principles to the instant case, I do not find any perversity or illegality in the orders impugned in the revisions. Further, no challenge is made questioning the judgment passed in the suit.
17. In view of my findings, both revisions fail and they are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.