This Criminal Revision Petition has been filed under Section 115 of the Code of Civil Procedure against the order in I.A.No.1119 of 2007 in O.S.No.816 of 2000 on the file of the Additional District Munsif, Vellore allowing the application for condoning the delay in seeking to set aside the exparte decree.
ORDER
1. The plaintiffs in O.S.No.816 of 2000 on the file of Additional District Munsif Court, Vellore are the revision petitioners. The above suit was filed for declaration of title and for permanent injunction and the suit was decreed exparte as prayed for on 01.08.2003.
2.Thereafter, the respondents herein filed I.A.No.1119 of 2007 in O.S.No.816 of 2000 under Section 5 of Limitation Act to condone the delay of 1435 days in filing the application to set aside the exparte decree and that application was allowed on payment of costs of Rs.1500/- and aggrieved by the same, this revision petition is filed by the revision petitioners.
3.Mr.P.Seshadri, learned counsel appearing for the revision petitioners submitted that the Court below without properly appreciating that no sufficient reason has been stated for the delay, allowed the application taking a liberal view and also on the basis of the admission of the first plaintiff that he has no objection for setting aside the exparte decree, allowed the application and the order of the Court below is against the Judgment of the Hon'ble Supreme Court reported in (2010) 8 SCC 685, Balwant Singh (dead) v. Jagdish Singh and others.
4.He further submitted that the parties are relatives and by swearing to false affidavit that the respondents have gone to New Delhi and therefore, they were not able to contact the advocate, they sought to set aside the exparte decree and they have not proved that they were not in the village and they have gone to New Delhi as alleged by them and the revision petitioners examined four witnesses apart from plaintiffs 1 and 2 and the independent witnesses have clearly deposed that the respondents were very much available in the village and without appreciating the same, the Court below has allowed the application and therefore, the order of the Court below is liable to be set aside.
5.On the other hand, the learned counsel for the respondents submitted that admittedly, the parties are relatives of the revision petitioners and the first respondent is the brother and the second respondent is the wife of the first respondent and the properties are joint family properties and they are not the exclusive properties of the revision petitioners and the revision petitioners are also aware that the respondents were not in station during the relevant period and the first plaintiff also had no objection for setting aside the exparte decree and considering all these aspects, the Court below has rightfully exercised the discretion in favour of the respondents to condone the delay and therefore the order need not be interfered with.
6.The learned counsel for the respondents further submits that in similar circumstances, this Court has condoned the delay when the other side has no objection for setting aside the exparte decree and relied upon the judgment reported in V.Amudha v.S.A.Arumugham and others [1999 (3) MLJ 261].
7.On the other hand, the learned counsel for the revision petitioners submitted that the judgment cannot be applicable to the facts of the case and in this case each plaintiff claims declaration in respect of each item of property and even though the first plaintiff has stated that he has no objection for setting aside the exparte decree, the second plaintiff has not agreed for that recourse and therefore on the basis of the evidence of first plaintiff the exparte decree cannot be set aside in sofar as the second plaintiff is concerned and he also relied upon the judgment reported in Lanka Venkateswarlu (dead) by LRS v. State of Andhra Pradesh and others [2011) 4 SCC 363].
8.Admittedly, the suit was decreed exparte on 01.08.2003. The respondents filed the application to set aside the exparte decree with delay of 1435 days and in the affidavit, it was stated that his son is in Military service at New Delhi and therefore they have gone to stay with their son and therefore, they are not aware of the progress of the case. Admittedly, no particulars were given in the affidavit about the date on which they left their village and when they came back to the village from Delhi.
9.On the other hand, the evidence adduced by the revision petitioners namely, RW 2,3,5 and 6 gave evidence that the respondents were very much available in the village during the relevant period and except the ipse dixit of PW1 namely, the first respondent herein, no proof was produced by the respondents in support of their allegation that they were not in the village for more than four years. The Hon'ble Supreme Court judgment reported in Balwant Singh (dead) v. Jagdish Singh and others,[(2010) 8 SCC 685] dealt with the phrase for sufficient cause for condoning the delay observed as follows:- 37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom. In this case, the Court, after discussing a number of Judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22 CPC along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In SCC para 13 of the Judgment, the court held as under :(SCC pp.329-30) (i)the words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. (ii)In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii)The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv)The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v)Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.
10.In the Judgment reported in lanka Venkateswarlu (dead) by LRS. v. State of Andhra Pradesh and others [2011 (4) SCC 363] after referring to various judgments in the Hon'ble Supreme Court has held as follows:-
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise (sic a lis). These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
11.Further, when the respondents came forward with the specific case that they were not in station during the relevant period, it is for them, to prove the same and no attempt was made by the respondents to prove that they were not in station for more than four years and without appreciating all these aspects in the Court below in a casual manner condoned the delay on payment of costs.
12.Normally, this court will not interfere with the discretion exercised by the Court below in condoning the delay. But, in this case, having regard to the facts of the case, the delay is 1435 days and no attempt was made by the respondents to prove the reason for their absence, the Court below ought not to have condoned the delay and the discretion has not been properly exercised by the Court below.
13.Hence, the order of the Court below is set aside and the revision petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.