| SooperKanoon Citation | sooperkanoon.com/1167384 |
| Court | Chennai High Court |
| Decided On | Jun-11-2013 |
| Judge | THE HONOURABLE Mr. JUSTICE M.VENUGOPAL |
| Appellant | Karuppusamy |
| Respondent | K.C.Palanisamy |
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2013 CORAM: THE HONOURABLE Mr.JUSTICE M.VENUGOPAL C.R.P.PD.No.1033 of 2011 and M.P.No.1 of 2011 1.Karuppusamy 2.K.Balakrishnan .Petitioners/Petitioners/Defendants versus K.C.Palanisamy .Respondent/Respondent/Plaintiff Prayer: Petitions filed under Article 227 of the Constitution of India, against the Fair and Decretal Order dated 21.09.2010 made in I.A.No.42 of 2010 in O.S.No.160 of 2005 on the file of the I Additional Subordinate Judge, Erode.
For Petitioners : Mr.T.Gowthaman For Respondent : Mr.C.S.Saravanan
ORDERThe Petitioners/Defendants have preferred the instant Civil Revision Petition as against the order dated 21.09.2010 in I.A.No.42 of 2010 in O.S.No.160 of 2005 passed by the Learned I Additional Subordinate Judge, Erode.
2.The Learned I Additional Subordinate Judge, Erode, while passing the order in I.A.No.42 of 2010 in O.S.No.160 of 2005 on 21.09.2010, has categorically, inter alia, observed that '..The date of the Exparte Decree is 2.6.2006.
The respondent has filed I.A.No.723/08 for final decree and in the application, this petitioners have entered appearance on 5.10.08 itself through their counsel.
But immediately the petition to set aside the Exparte Decree was not filed by this petitioners and this petition is dated 20.1.2010.
According to the fiRs.petitioner, he was employed in Coimbatore but this cannot be a reason for non-participation in the proceedings of the above suit.
Therefore as rightly contended there is no sufficient reason to condone the delay of 1323 days' etc., and consequently, dismissed the petition with costs.
3.Challenging the order of dismissal in I.A.No.42 of 2010 in O.S.No.160 of 2005 dated 21.09.2010 passed by the trial Court, the Learned Counsel for the Petitioners contends that the trial Court failed to appreciate that the 1st Revision Petitioner (1st Defendant) with whom the proceedings of the main suit were entrusted was bed-ridden and therefore, was not in a position to take part in the proceedings.
4.The Learned Counsel for the Petitioners/Defendants strenuously submits that the main suit O.S.No.160 of 2005 has been filed by the Respondent/Plaintiff on the file of trial Court seeking the relief of partition in respect of suit properties and in view of the fact that the rights of parties are very much involved in this regard and also bearing in mind a prime fact that final decree proceedings in I.A.No.723 of 2008 are very much pending as on date, no serious prejudice would be caused to the Respondent/Plaintiff, if I.A.No.42 of 2010 [petition to condone the delay of 1323 days in setting aside Exparte Decree dated 21.09.2010 filed by the Petitioners/Defendants].is allowed.
5.Lastly, it is the plea of the Petitioners/Defendants that the trial Court has erred in observing that the delay of 1323 days that has occurred in the matter in issue has not been explained.
6.A perusal of the contents of Affidavit in I.A.No.42 of 2010 in O.S.No.160 of 2005 [filed by the 2nd Revision Petitioners/2nd Defendant for himself and on behalf of the 1st Petitioner/1st Defendant].clearly point out that the 1st Revision Petitioner/1st Defendant was entrusted with the proceedings of the suit fell ill suddenly on account of the orthopedic pain and suffering in the legs below the knees and bed ridden.
Therefore, the Revision Petitioners were not able to participate in the conduct of trial and as such, the Exparte Decree dated 02.06.2006 came to be passed.
7.Continuing further, it is the stand of the Revision PetitioneRs.Defendants that they were neither negligent nor careless in defending the main suit O.S.No.160 of 2005 on the file of trial Court (filed for seeking the relief of partition) and the delay of 1323 days that had occasioned in filing the petition to set aside the Exparte Decree passed in the main suit dated 02.06.2006 may kindly be caused to be condoned in the interest of justice.
8.In the counter to I.A.No.42 of 2010 in O.S.No.160 of 2005 filed by the Respondent/Plaintiff, it is mentioned that the Exparte Decree in the main suit was passed on 02.06.2006 but I.A.No.42 of 2010 was filed by the Petitioners to set aside the preliminary decree only 20.01.2010.
Also, the Respondent/Plaintiff filed I.A.No.723 of 2008 in O.S.No.160 of 2005 praying for passing of a final decree and to appoint the Commission to divide the suit properties as per preliminary decree dated 02.06.2006.
As a matter of fact, the Petitioners/Defendants engaged their counsel during December, 2008.
9.According to the Respondent/Plaintiff, the Petitioners filed the counter to I.A.No.723 of 2008 (for passing of a final decree) only on 21.07.2009, when the final decree application was posted as last chance for filing of counter.
Moreover, the Petitioners/Defendants from December, 2008 were able to get as many adjournments as possible to file counter to I.A.No.723 of 2008 (filed for final decree).10.The Respondent/Plaintiff, in his counter to I.A.No.42 of 2010, had also stated that the Petitioners had not produced documents/ medical reports to prove the language of the 1st Revision Petitioner/1st Defendant.
As such, the plea taken on behalf of the Petitioners that the 1st Petitioner/1st Defendant was ill well could not be accepted.
11.On going through the order of dismissal passed by the trial Court in I.A.No.42 of 2010 in O.S.No.160 of 2005, it transpires that the trial Court placed reliance on the decision 2010 (4) M.L.J.561 and the decision Saravanan V.
Pirampavayal, 2009 (3) M.L.J.581 wherein it was observed that unexplained delay need not be condoned.
Besides this, the trial Court opined that there was no sufficient reason to condone the delay and ultimately dismissed I.A.No.42 of 2010 with costs.
12.In the main suit in O.S.No.160 of 2005, on behalf of the Revision Petitioners/Defendants 1 and 2, their Counsel C.Yoganathan filed vakalat on 24.06.2005 and that the matter was posted for filing of written statement on 27.07.2005.
From 27.07.2005 till 25.01.2006 time was extended for filing of written statement.
On 25.01.2006, the matter was adjourned to 27.02.2006 for filing of written statement and it was mentioned that no further adjournment would be given.
On 27.06.2006, the Learned Judge was on Casual Leave/O.D./R.H.and for filing written statement, the matter was adjourned to 16.03.2006.
On 16.03.2006 written statement was not filed and the matter was adjourned for evidence by 03.04.2006.
Obviously, in the Notes Paper, the trial Court Judge had not mentioned in express terms that the Revision Petitioners/Defendants 1 and 2 were Set Exparte on 16.03.2006.
13.To put it precisely, on 16.03.2006, the Notes paper endorsement in the main suit O.S.No.160 of 2005 on the file of trial Court runs as under: ".Wst not filed.
Defts CASE evidence by 3/4/206.".
From 03.04.2006 time was extended for Exparte Evidence by 19.04.2006.
On 19.04.2006 the Judge was on C.L./O.D./R.H.and as such, the suit was posted for Exparte Evidence to 02.06.2006.
On 02.06.2006, proof affidavit of P.W.1 was filed.
Exs.A.1 to A.8 were marked and an Exparte Decree was passed as prayed for, since the suit claim was proved.
Even though, in the suit O.S.No.160 of 2005 Notes Paper, on 16.03.2006, the words 'Defendants Set Exparte' were not employed/ used, yet, this Court is of the earnest opinion that restoration lies under Order 9 Rule 13 of Civil Procedure Code.
14.Ordinarily, a party should not be deprived of a hearing unless he had been under some misconduct or gross negligence, as per decision in R.A.Arunachala Iyer V.
C.Subbaramiah, AIR1923Madras 63.
Also that, even where defendant is found to be negligent, the other side may be compensated by costs and the decree set aside on appropriate terms and conditions, as per decision G.P.Srivastava V.
R.K.Raizada and otheRs.(2000) 3 Supreme Court Cases 54.
15.In law, till the passing of final decree in a partition suit, the said suit is considered to be pending, notwithstanding the passing of a preliminary decree by the trial Court concerned.
Furthermore, Order 9 Rule 7 of Civil Procedure Code visualises 'Good Cause' and not 'Sufficient Cause' enjoined under Order 9 Rule 13 of Civil Procedure Code.
16.It is to be borne in mind that Section 5 of the Limitation Act, 1963 under the Caption 'Extension of prescribed period in certain cases' is certainly a hard nut to crack.
Indeed, it is very difficult to define what exactly the term 'Sufficient Cause' signifies of course, to secure the ends of justice and to avoid hyper technicalities, in law, the words 'Sufficient Cause' occurring in Section 5 of the Limitation Act are to be interpreted leniently and liberally and in short, in a fair, just and equitable fashion.
Also that, the term, 'Sufficient Cause' is more than 'legally sufficient' as per rules prescribed under the Limitation Act.
17.It is well settled that the ingredients of Section 5 of the Limitation Act postulates that if the Act is not performed within the prescribed period of limitation, it shall be deemed as barred by limitation, unless the delay is convincingly and satisfactorily explained to a Court of Law.
As a matter of fact, a Court of Law ought to be subjectively satisfied as to the reasons ascribed for the delay in filing a condone delay application by traversing upon relevant/appropriate facts.
A litigant cannot be permitted to assume that a Court of Law will condone the delay without there being sufficient cause/good cause for it or to presume that there ought to have been some sufficient cause for the delay.
Indeed, no such presumption is permissible under Section 114 of the Indian Evidence Act, 1872.
18.It is to be noted that if a party projects an application in terms of Section 5 of the Limitation Act, 1963 and does not state facts to constitute 'sufficient cause', then, the application is liable to be rejected because of the simple reason, a Court of Law cannot draw an assumption or presumption that the delay should have accorded by means of undisclosed good cause/sufficient cause.
19.Ordinarily, an illness may be a good cause for delay in the presentation of an application/appeal.
A mere plea of sickness would not justify the Court of Law in exercising its discretion in condoning the delay as per Section 5 of the Limitation Act.
No wonder, it is for the Court to consider each case whether the effect of illness as proved is such that it provided sufficient cause for the failure to present an appeal as per decision in Abdul Kasim V.
Chatur Bhuj, AIR1922Pat 47 (49).20.Under Section 5 of the Limitation Act, it is only sufficiency of the cause that matters and not the length and breadth of the delay.
While dealing with the Section 5 Application [filed under Limitation Act, 1963]., the question of diligence or bona fides are to be considered.
The term 'Sufficient Cause' is not defined.
However, it means a cause which is beyond the control of a litigant in invoking the assistance of Section 5 of the Limitation Act.
21.In reality, any and every cause does not and will not fall within the meaning of 'sufficient cause' as mentioned in Section 5 of the Limitation Act.
Either a vague allegation or merely a bald averment that delay was not the deliberate/intentional that would not come and within the ambit of 'Sufficient Cause'.
At this stage, this Court worth recalls the Full Bench decision of this Court in Krishna V.
Chathappan, (1889)13 Madras 269 (271) (FB).wherein, it is laid down that 'The words ".sufficient cause".
should receive ".a liberal construction so as to advance substantial justice when no negligence, nor inaction, nor want of bona fides is imputable to the appellant"..' 22.Also, this Court aptly points out the decision in Kichilippa Naicker V.
Ramanujam Pillai, (1902) 25 Madras 166 (170, 171) (DB) whereby and whereunder, this Court has held as under: ".
'Sufficient cause' is evidently something more than ".legally sufficient".
or ".sufficient according to the rules laid down in the law of limitation".; for if any case fell within these rules it would be governed thereby, as in the case of suits, and there would be no scope for the application of section 5.
".Sufficient Cause".
seems to mean not only those circumstances (such as the Courts being closed, or time being spent in obtaining copies, or the party being a minor or insane) which the law expressly recognize as extending the time but also such circumstances as are not expressly recognized but which may appear to the Court to be reasonable, looking to all the facts of the case.".
23.There is no two opinion of the fact that the aspect of existence of 'sufficient cause' is purely a 'Question of Fact' and is to be decided on facts and circumstances of each case.
24.While dealing with the Application under Section 5 of the Limitation Act, 1963, the undermentioned factors/guidelines are to be taken into account by a Court of Law to find out whether any sufficient cause exists (i).party does not stand bona fide; (ii) refusal to condone delay may result in meritorious matters being thrown out; (iii) each day's delay a pedantic approach ought to be avoided; (iv) deliverance of substantial justice is to be preferred overriding technicalities of procedural laws; (v) there is no assumption or presumption that the delay that has occasioned is always willful/ intentional; (vi) injustice is to be wiped out.
25.By and large, the mere fact that the either side would not be prejudiced by the condonation of delay may not be a valid ground for excusing the delay.
To put it succinctly, in order to make out 'sufficient cause' within the purview of Section 5 of the Limitation of the circumstances should be only those which are primarily respects with a view to explain the delay caused by the party and not in any other circumstance which has no nexus or bearing or which would not have prevented him in seeking the remedy available to him.
Other than this, the absence of any negligence imputable to a party will have a vital bearing depending upon the facts and circumstances which float on the surface in a particular case.
26.At the same time, one cannot brush aside a candid fact that delay cannot be condoned by a Court of Law extending its arms of judicial generosity.
Where delay could have been avoided by means of due care and caution, then, a Court of Law, in such a situation, may not exercise the discretion to condone the delay in question.
27.It cannot be gainsaid that each case is to be decided on its merits and proper care ought to be shown to find out whether 'the sufficient case' and the bona fide grounds have been established by a litigant, seeking condonation of delay.
After all, the primordial guideline is that a Court of Law is to find out whether a party seeking its indulgence has been either diligently or by adopting bona fide care and caution is prosecuting his application.
A litigant owe a duty in prosecuting his legal proceedings/suit/appeal and he cannot shift the onus or blame on his counsel.
Based on the plea of doctrine of 'Equity' a person seeking a discretionary relief under Section 5 of the Limitation Act should act diligently.
28.The plea of limitation does give rise to an advantage in law is to the other side.
But the condonation of such delay under Section 5 of the Limitation Act confers enough discretion and wide powers to condone the delay in question based on facts and circumstances of given case and that to when sufficient explanation is offered, in that regard, in the considered of this Court.
29.Added further, the condonation of delay cannot be said to be an empty ritualistic formality inasmuch as it vests a right in the opposite party and attaches finality to the order/decree passed by the concerned Court.
In short, Section 5 of the Limitation Act enjoins a person claiming condonation of delay to make out a case for the said object.
30.At this stage, this Court cites the following decisions to prevent an aberration of Justice and to promote substantial cause of Justice: (a)In the decision Ayyaswami alias Ayyavoo Gounder V.
Venugopal alias Venugopal Gounder, 1997 (2) M.L.J.55, it is held as follows: ".The ruling relied upon by the learned counsel appearing for the revision petitioner the Special Tahsildar (L.A.) BHEL, Ranipet, v.
M.G.Sampathkumar, 1993 T.L.N.J.401, no doubt, provides that Sec.5 of the Limitation Act does not prohibit any appellant/applicant to file an application under Sec.
5 of the Limitation Act to condone the delay even if he has applied and obtained certified copy of the judgment and decree after the prescribed period of limitation.
In all cases, what is to be decided is whether sufficient cause has been shown or not.
This portion of the order of the Full Bench whether contemplated that what is to be decided is whether sufficient cause has been shown or not cannot be ignored.".
(b)In the decision Krishnamoorthy V.
Parasuraman and otheRs.(2007) 3 MLJ636 at page 638 & 639, in paragraph 12 and 13, this Court has held as follows: ".12.But, on the other hand, the Trial Court has dismissed the final decree application on 17.08.2000 itself on the basis that originally the above said revisions filed by defendants 1 to 3, were allowed in the absence of the respondents therein, which order was of couRs.subsequently set aside.
On this said facts and circumstances, it is only fair and natural that subsequently when this Court has dismissed the revisions on 13.11.2000 about which according to the plaintiff he came to know only on 18.12.2000 and immediately, thereafter he filed the petition, in my considered view, the reasoning given by the learned Trial Judge in stating as if 95 days delay has not been properly explained, is uncalled for.
After the admitted dismissal of the revisions on 13.11.2000, it was the duty of the Trial court to consider the date for the purpose of deciding the application to restore the final decree petition.
13.
Therefore, on the face of it, I do not think that the reasoning given by the learned Trial Judge in dismissing the application for restoration of final decree proceeding is proper.
It is in this regard as rightly pointed by the learned counsel for the petitioner necessary to consider the decision of the Hon'ble Apex Court in framing certain guidelines regarding the discretion to be exercised in the court in condoning the delay in N.Balakrishnan versus M.Krishnamurthy reported in 1998(7) SCC123holding that it is the primary function of the court to adjudicate the dispute between the parties to advance substantial justice and the rule of limitation are not meant to destroy the rights of parties, since the same is founded on the principles of public policy.
The relevant portion of the judgement of the Honble Apex Court in this regard: ".11.
Rules of limitation are not meant to destroy the rights of parties.
They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
The object of providing a legal remedy is to repair the damages 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 causes 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.".
(c)In the decision R.M.Arunachalam V.
PL.R.Arunachalam Chettiar and otheRs.(2001) 1 M.L.J.105 at page 106, in paragraph 7, it is laid down as follows: ".7.The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could only be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved.".
Also, in the aforesaid decision, it is held that 'Even if the delay is not properly explained, petitioner should not be punished with a denial of opportunity to prosecute his case and the Civil Revision Petition has been allowed on payment of cost of Rs.2,500'.
(d)In the decision Ramayee and 5 others V.
Palaniammal, (2008) 2 MLJ479& 480, this Court has held thus: ".The revision petition challenging the order allowing the application for condonation of delay is liable to be dismissed when no prejudice has been caused in allowing said application, since the Courts are there not to harp on technicalities but only to deliver substantial justice to the parties in dispusubservient to and is in aid of justice.".
(e) In the decision N.Balakrishnan V.
M.Krishnamurthy, AIR1998Supreme Court 3222 at special pages 3223 & 3224, in paragraphs 8 to 14, it is observed and laid down as follows: ".8.Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant.
What he did in defending the suit was not very much far from what a litigant would broadly do.
Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation.
But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
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 uncondonable 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 reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse.
But it is a different matter when the fiRs.cut refuses to condone the dela.
In such cases, the superior cut 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.
10.The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
11.Rules of limitation are not meant to destroy the right of parties.
They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
the object of providing a legal remedy is to repair the damage caused by reason of legal injury.
Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered.
Time is precious and the wasted time would never revisit.
During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts.
So a life span must be fixed for each remedy.
Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy.
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 right 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.
12.A court knows that refusal to condone delay would result 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 versus Kuntal Kumari [AIR1969SC575 and State of West Bengal versus The Administrator, Howrah Municipality [AIR1972SC749.
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 delay the Could should not forget the opposite party altogether.
It must be borne in mind that he is a looser and he too would have incurred quiet 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.
14.In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction.
Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs.Fifty thousand from the delinquent advocate through the Consumer Disputes Redressal Forum.
We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court) within one month from this date.".
31.One cannot brush aside a significant fact that the limitation for projecting an application under Order 9, Rule 7 of Civil Procedure Code is guided by the ingredients of Article 137 of the Limitation Act, 1963.
There is a subtle difference in respect of applications filed under Order 9, Rule 13 of Civil Procedure Code and those filed under Order 9, Rule 7 of Civil Procedure Code.
While the former seeks cancellation of decrees finally disposing of suits, the latter requires cancellation of only the order setting the applicant Exparte, thereby preventing him/her from taking part in further proceedings of the suit.
Unlike the applications under Order 9, Rule 13 of Civil Procedure Code, there is no article under the Limitation Act, 1963 specifying any specific period of limitation for an application under Order 9 Rule 7 of Civil Procedure Code.
As such, such an application is clearly governed by residuary Article 137 of the Limitation Act which prescribes three years period.
32.Apart from the above, from the date of presentation of Plaint during May, 2005/date of filing of the Plaint from 19.05.2005 [on the file of Learned Sub Judge, Erode].till date of Revision PetitioneRs.Defendants being set Exparte on 16.03.2006, Written Statements were not filed on their behalf.
Even though, the main suit was adjourned to 03.04.2006 for taking evidence [from 16.03.2006].only on 02.06.2006 Exparte Evidence was taken by the trial Court and a preliminary decree was passed on that date.
Therefore, it is patently and latently clear that for nearly 10 months [from the date of filing of the Plaint during May 2005].Written Statements were not filed on the side of Revision Petitioners/Defendants 1 and 2.
In I.A.No.723 of 2008 filed by the Respondent/Plaintiff for passing of a final decree by the trial Court, the Revision Petitioners/Defendants 1 and 2 entered appearance through their counsel on 05.10.2008.
However, only on 20.01.2010 the application was filed to set aside the exparte decree dated 02.06.2006, on the side of the Revision Petitioners/Defendants 1 and 2, who were also the PetitioneRs.were not quite diligent in prosecuting their remedies available to them.
The inaction on the part of Revision Petitioners/Defendants 1 and 2 in not filing their Written Statements for nearly 10 months [from the date of filing of the Plaint viz., 19.05.2005].shows their laizes - faire or lackadaisical attitude Exfacie.
33.Be that as it may, on a careful consideration of respective contentions and bearing in mind an important fact that the main suit O.S.No.160 of 2005 filed by the Respondent/Plaintiff against the Revision Petitioners/Defendants is one for partition where the rights of parties are to be adjudicated in a threadbare fashion and on merits.
As such, this Court opines that the Petitioners/Defendants 1 and 2 are to be provided with an opportunity to contest their case on merits and viewed in that perspective, this Court, by exercising its judicial discretion and adopting a lenient, liberal, realistic and common sense approach [instead of adopting a pedantic view]., condones the delay of 1323 days in filing I.A.No.42 of 2010 in O.S.No.160 of 2005 to set aside the Exparte Decree dated 02.06.2006 passed by the trial Court, because of the reason that deliverance of substantial Justice is preferred overriding procedural laws/technicalities, by directing the Petitioners to pay an exemplary cost of Rs.6,000/- (Rupees Six Thousand Only) [as PENALTY]., by means of depositing the same to the credit of I.A.No.42 of 2010 in O.S.No.160 of 2005, within a period of four weeks from the date of receipt of copy of this order.
On such deposit being made, it is open to the Respondent/Plaintiff to withdraw the said amount by filing necessary payment out Application as per Civil Rules of Practice.
34.As such, the contra view taken by the trial Court in I.A.No.42 of 2010 in O.S.No.160 of 2005 holding that 'there is no sufficient reason to condone the delay etc.and resultantly dismissing the same' is not correct, in the eye of law.
Therefore, this Court, in the interest of justice, interferes with the said order in I.A.No.42 of 2010 in O.S.No.160 of 2005 passed by the trial Court and sets aside the same, in furtherance of substantial cause of Justice.
Consequently, the Civil Revision Petition succeeds.
35.In the result, the Civil Revision Petition is allowed.
The order dated 21.09.2010 in I.A.No.42 of 2010 in O.S.No.160 of 2005 passed by the I Additional Subordinate Judge, Erode is set aside for the reasons assigned by this Court in this Revision.
No costs.
Consequently, connected Miscellaneous Petition is closed.
Sgl To The I Additional Subordinate Judge Erode