Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
31. 07.2015 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)(MD)No.1357 of 2015 and M.P.(MD)No.1 of 2015 1.V.Chelliah 2.S.Murugan : Petitioners Vs. R.Thilagavathi : Respondent Prayer Civil Revision Petition is filed under Section 115 of Code of Civil Procedure to set aside the fair and decreetal order dated 27.09.2011 made in I.A.No.469 of 2011 in O.S.No.226 of 2008 on the file of District Munsif Court, Theni. !For Petitioners : Mr.K.Appadurai ^For Respondent : Mr.V.K.Saravanan :ORDER
The learned Trial Judge wanted the petitioners to explain each day's delay in filing the application to set aside the exparte decree. The application to condone the delay was dismissed solely on the said ground. Feeling aggrieved, the petitioners are before this Court.
2. The respondent filed a suit against the petitioners on the basis of a promissory note. The petitioners failed to appear before the Trial Court and the same resulted in passing an exparte decree on 25 June, 2009. The petitioners filed an application in I.A.No.469 of 2011 to condone the delay of 456 days in filing the application to set aside the exparte decree.
3. The petitioners, in the affidavit filed in support of the application, submitted that the first petitioner was conducting the litigation and he was laid up on account of jaundice. The learned Trial Judge dismissed the application solely on the ground that the petitioners failed to account for each day's delay satisfactorily.
4. Heard the learned counsel for petitioners and the learned counsel for respondent.
5. The application submitted by the petitioners to condone the delay in filing the application to set aside the exparte decree was dismissed solely on the ground of non-explanation with regard to each day's delay. The petitioners have pleaded that the first petitioner was laid up due to jaundice and that was the primary reason for the delay. The learned Trial Judge wanted explanation in detail. The question is as to whether the petitioners have shown sufficient cause in filing the application belatedly. Unfortunately, the learned Trial Judge has not taken any attempt to consider the reasons given by the petitioners. The Trial Court, by placing reliance on a decision of this Court, simply dismissed the application without considering the background facts.
6. While considering the application to condone the delay, the learned Trial Judge ought to have considered the fact that the exparte decree was not on merits. It was, in fact, a default decree consequent to the non-appearance of petitioners.
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 petitioners have given sufficient reasons to condone the delay. It is true that the petitioners failed to explain each day's delay. However, on an overall consideration of the matter, I am of the view that the petitioners are entitled to succeed.
12. In the result, the order dated 27 September, 2011, is set aside. The application in I.A.No.469 of 2011 is allowed.
13. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petition is closed. To The District Munsif Court, Theni..