Judgment:
ORDER
S.R. Singharavelu, J.
1. Heard learned Counsel for both parties.
2. Plaintiff is the writ petitioner. Having lost his case with a prayer to condone the delay of two and half years in filing a petition under Order 9 Rule 9, CPC for restoration of the suit for eviction which he filed and which he left for dismissal for default. True it is, the opposite party-defendant was also recalcitrant inasmuch as he never appeared and filed a written statement on his behalf. It is equally true that between 24.2.1998 and 20.8.1998 the defendant was given an opportunity of filing a written statement which he had not availed. The case happened to get transferred on 4.9.2004 fixing the date for appearance and ex parte hearing on 18.11.2004. Since the writ petitioner-plaintiff was absent both on 18.11.2004 and subsequently adjourned date on 29.1.2005 and the case was dismissed for default he preferred an application under Order 9 Rule 9, CPC with an application Under Section 5 of the Limitation Act on 21.8.2007 stating that between 15.2.2005 and 20.8,2007 he was ill. He had also preferred to examine the Physician who treated him.
3. A careful perusal of the evidence of the Physician disclosed three points (i) no finding was given regarding the systolic and diastolic reading of the blood pressure alleged; (ii) prescriptions were not produced and said as lost; and (iii) how and in what condition the patient was and there is lack of evidence about the inability and immobility of the plaintiff.
4. From such evidence it is not made very much clear that the plaintiff was immobilized due to illness and therefore he committed default. Thus, justifiable reason is not very much on record. In this context, the learned Counsel for the writ petitioner-plaintiff relied upon the case law reported in : AIR 2000 S.C. 2306 (State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr.) where in paragraphs 11 and 12 it was observed that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. It was further observed that 'every day's delay must be explained' does not mean that a pedantic approach should be made. The further observation is that the expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient cause for explaining every day's delay.
5. By relying upon such observation of the Apex Court, the learned Counsel for the petitioner submitted that even though the writ petitioner-plaintiff was bound to explain each day's delay, in order to take a pragmatic approach which we have to see is as to whether he was at all ill and that illness prevented him from coming to Court. By taking a broad approach, we can believe the version of the Physician that the plaintiff was ill during the period prior to 21.8.2005. But at the same time how could all of a sudden he got relieved on 21.8.2005 and the question as to why the Physician should say that the advocate was behind the preparation of the medical certificate which he produced before the court. In this context, by accepting the case of the plaintiff that there was cause for absenteeism, we may also say in explaining the situation that the patient despite his inability might have preferred for sending words to his advocate. Anyway there is some inaction on the part of the plaintiff for which he is liable to pay cost.
6. At this juncture, the learned Counsel for the petitioner would object to payment of cost by contending that there was no laches at all on the part of the petitioner. In this connection, reliance was placed upon the case law reported in AIR 1988 S.C. 3222 (N. Balakrishnan v. M. Krishnamurty) wherein the following observation was made:
13. 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 the 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 a 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.
7. True it is that only when there is laches on the part of the concerned party he would be made liable for payment of cost. The learned Counsel for the petitioner pointed out that when the defendant had kept himself away from the Court and did not even care to file any written statement despite sufficient time was granted to him what injustice was caused In the absence of the plaintiff and what prejudice was caused to the defendant and therefore the learned Counsel for the petitioner submitted that there was no laches on the part of the plaintiff especially considering the total inaction on the part of the defendant who remained ex parte.
8. What I may like to say is that laches is a broad term and it is not only connected to the amount of prejudice that was caused to the other side. Even though there was no prejudice caused to the defendant on the ground that the latter kept himself away from the court, plaintiff owes a duty to the court and especially when defendant remains ex parte the plaintiff is expected to accelerate the proceeding of the case in order to get an ex parte decree by merely furnishing the oral and documentary evidence to be produced on his side. For getting such an ex parte decree plaintiff took time for two and a half years. That amounts to laches towards the Court and therefore he is liable for cost. Therefore, a cost of Rs. 2,500/- (Rupees two thousand and five hundred only) is imposed which the petitioner to pay to the other side because the other side is a poor widow. The cost is paid in Court.
9. The writ petition is accordingly showed.
10. The suit since is restored is directed to be disposed of at an early date preferably within a period of throe months from the date of receipt of records by the lower court.
11. Issue UCC as per rules.