A Abitha Nachi and Others Vs K S Saroja and Others - Citation 1187713 - Court Judgment

Judgment:

(Prayer: Civil Revision Petition in C.R.P (NPD) No.541 of 2015 filed under Section 115 of the Civil Procedure Code against the order dated 16.09.2014 in I.A.No.18953 of 2013 in O.S.No.8957 of 2011 on the file of VII Additional City Civil Court, Chennai.)

Common Order

1. Challenging the fair and final order passed in I.A.No.18953 of 2013 in O.S.No.8957 of 2011 on the file of VII Additional Judge, City Civil Court, Chennai, the defendants 3 and 5 have filed Civil Revision Petition in CRP (NPD) No.541 of 2015.

2. Civil Revision Petition in CRP (NPD) No.4973 of 2014 has been filed by the defendants 1, 2 and 4, challenging the fair and final order passed in I.A.No.6698 of 2014 in O.S.No.8957 of 2011.

3. Since both the orders were passed in the same suit i.e, in O.S.No.8957 of 2011, both the Civil Revision Petitions are disposed of by this Common Order.

4. Heard Mr.AR.L. Sundaresan, learned Senior Counsel, appearing for the revision petitioners in both the Civil Revision Petitions and Mr.V. Lakshminarayanan, learned counsel, appearing for the first respondent in both the Civil Revision Petitions.

5. The plaintiff filed a suit in O.S.No.8957 of 2011 for Specific Performance and for Permanent Injunction. Since the defendants failed to appear before the trial Court, they were set ex-parte and an ex-parte decree was passed on 28.08.2012. Thereafter, the defendants 3 and 5, through their Power Agent D.C. Sekaran and M. Aydrouse filed an application in I.A.No.18953 of 2013 to condone the delay of 45 days in filing the application to set aside the ex-parte decree.

6. In the affidavit, filed by the Power Agents D.C. Sekaran and M. Aydrouse, it has been stated that the defendants 3 and 5 came to know about the ex-parte decree in the first week of October, 2013, when they met one of the friends of the 5th defendant and heard from him that a suit has been filed against them. Further, the Power Agents have stated that the defendants have not received summons in the suit.

7. Mr.V. Lakshminarayanan, learned counsel appearing for the first respondent/plaintiff, submitted that the Power Agents have filed an application in I.A.No.18953 of 2013, without obtaining any leave from the trial Court under Order 3 Rule 2 of the Civil Procedure Code. Therefore, the application should have been dismissed by the trial Court.

8. Mr.AR.L. Sundaresan, learned Senior Counsel, appearing for the revision petitioners, submitted that the Power Agents did not obtain leave from the trial Court for contesting the suit on behalf of the defendants 3 and 5. Since no leave has been obtained by the Power Agents to file the application on behalf of the defendants 3 and 5, the trial Court should not have entertained the application, filed by them. The Power Agents, who have filed the application in I.A.No.18953 of 2013 are strangers to the proceedings and they cannot be allowed to file the application on behalf of the defendants 3 and 5, without leave of the Court. On this sole ground, the application, filed by the Power Agents in I.A.No.18953 of 2013 in O.S.No.8957 of 2011 are liable to be set aside.

9. The application in I.A.No.6698 of 2014 has been filed by the defendants 1, 2 and 4 to condone the delay of 157 days in filing the petition to set aside the ex-parte decree dated 28.08.2012. Though this has been filed by the Power Agent M. Aydrouse, on behalf of the defendants 1, 2 and 4, the Power Agent had obtained leave from the trial Court for contesting the suit on behalf of the defendants 1, 2 and 4. In the affidavit, filed in support of the petition, the defendants have stated that when the 3rd and 5th defendants came to Chennai for health checkup, they met one of the friends of the 5th defendant and heard from him that a suit has been filed against the defendants and that, subsequently, they verified and came to know about the suit in O.S.No.8957 of 2011, filed by the plaintiff for Specific Performance and Permanent Injunction and also the decree passed on 28.08.2012.

10. In paragraph-5 of the affidavit, they have also stated that through enquiry, it was informed that summons were sent to wrong address, therefore, they have not received the summons and also unaware about the summons and proceedings. The averments stated in the affidavit were disputed by the plaintiff.

11. The trial Court, taking into consideration the case of both the parties, dismissed the petition. Aggrieved over the order passed by the trial Court, the defendants 1, 2 and 4 have filed the Civil Revision Petition in CRP (NPD) No.4973 of 2014.

12. Mr.AR.L. Sundaresan, learned Senior Counsel, appearing for the petitioners, submitted that since the delay is only 157 days, the trial Court should have condoned the delay in the interest of justice. Further, the learned Senior Counsel submitted that the defendants have a good case in the suit. Therefore, the trial Court should have condoned the delay of 157 days and given an opportunity to the defendants to contest the suit on merits. That apart, the learned Senior Counsel submitted that the judgment, passed by the trial Court, is not in accordance with the provisions of the Civil Procedure Code. Hence the judgment and decree of the trial court are liable to be set aside. In support of his contention, the learned Senior Counsel, relied upon the following judgments:

(i) 2013(4) SCC 396 (Shantilal Gulabchand Mutha vs Tata Engineering and Locomotive Company Limited and another), wherein the Hon'ble Supreme Court has held as follows:

9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the Court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant, and the Court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the Court must proceed, and under what reasoning the suit has been decreed.

10. The instant case is required to be examined in the light of the aforesaid settled legal propositions. It is evident from the plaint that eight bills of exchange, all dated 4-6-1982 for the respective amounts had been inclusive of interest and each one of the said bills were accepted by the appellant payable at Mercantile Bank Ltd., Bombay and the said Bills were discounted by the respondent-plaintiff with its bankers. It is further admitted in the plaint that the bank of the appellant paid the said amount to the respondent-plaintiff on the respective dates, as the five amounts have been mentioned in Para 5 of the Plaint. However, as the same did not satisfy the entire demand, the suit was filed with the following prayer:

That Defendant 1 and Defendant 2 may be ordered and decreed to pay to the plaintiff the sum of Rs.9,99,388.30p as mentioned in para 7 above together with interest on the sum of Rs.5,66,000 at the rate of 18.5% per annum from the date of the suit till payments.

(ii) 2002 (1) CTS 769 (Ram Nath Sao @ Ram Nath Sahu and Others vs Gobardhan Sao and Others), wherein, the Hon'ble Supreme Court has held as follows:

10. In the case of N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days in filing application for setting aside exparte decree for which application for condonation of delay was filed. The trial court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial court was not justified in condoning the delay resulting into reversal of its order whereupon this Court was successfully moved which was of the view that the High Court was not justified in interfering with order passed by trial court whereby delay in filing the application for setting aside exparte decree was condoned and accordingly order of the High Court was set aside. K.T.Thomas, J., speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10 :

"8. The 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 a want of acceptable explanation whereas in certain other cases, delay of a 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 revisional 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.

10. ....

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause." [ Emphasis added]

11. The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"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 damage 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.

(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 (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality(1972) 1 SCC 366.

(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 large litigation expenses. "

12. 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 bona 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 lis 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.

(iii) 1999(8) SCC 396 (Balraj Taneja and another vs Sunil Madan and another), wherein the Hon'ble Supreme Court has held as follows:

30. Applying these tests to the instant case, it will be noticed that in a suit for specific performance it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of the contract. The Court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to perform his part of the contract is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff.

(iv) (1998) 7 SCC 123 (N. Balakrishnan vs M. Krishnamurthy), wherein the Hon'ble Supreme Court has held as follows:

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 first 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. Rule 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 putt 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 Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

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. .

(v) (2009 (3) CTC 342 (The Motor and General Finance Limited vs S. Durailingam), wherein the Division Bench of this Court held that the defendant is entitled to file an application to set aside the ex-parte decree passed against him within 30 days from the date of knowledge of decree, when summons are not duly served on him. Further, the Division Bench held that Substituted service under Order 5 Rule 20 of the Civil Procedure Code is of no assistance to plaintiff, if defendant files an application to set aside ex-parte decree within 30 days from the date of knowledge.

(vi) (2008) 1 CTC 785 (Ravi Enterprises vs Indian Bank), wherein the Division Bench of this Court has held that the length of delay is immaterial and bona fides of party cannot be held against him merely because petition filed by him to set aside ex parte order was dismissed for default and application to restore the same was also dismissed.

(vii) 2007 (4) CTC 449 (Arun Alexander Lakshman vs A.P. Vedavalli),wherein the Division Bench of this Court has held as follows:

33. In our view, explanation for delay of 714 days in filing the application under Or.9 R.13 CPC is satisfactorily explained. While condoning the delay, the Court should strike a just balance between the right enured to the plaintiff on the expiry of the period of limitation and the inconvenience caused to the respondent/plaintiff. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellants' can be compensated by awarding appropriate and exemplary cost.

35. To avoid any further delay, we have also examined the merits of the main application under Or.9 R.13 CPC. In our opinion, sufficient grounds exist for setting aside the exparte Decree as well. Observing that discretionary jurisdiction has been conferred upon the Court that while setting aside the exparte Decree, the Court can put the Defendant on reasonable terms, in 2007(1)CTC 89, Tea Auction Ltd. Vs. Grace Hill Tea Industry and another, referring to various decisions, Supreme Court has held :

"10. We may at once notice that whereas Order IX Rule 7 postulates setting aside the orders passed by the Court upon such terms of costs or otherwise; Order IX Rule 13, inter alia, postulates "payment into Court".

11. What would be the meaning of "payment into Court" is the core question. .....

.....

16. Order IX Rule 13 of CPC did not undergo any amendment in the year 1976. The High Courts, for a long time, had been interpreting the said provision as conferring power upon the Courts to issue certain directions which need not be confined to costs or otherwise. A discretionary jurisdiction has been conferred upon the Court passing an order for setting aside an exparte Decree not only on the basis that the Defendant had been able to prove sufficient cause for his non-appearance even on the date when the Decree was passed, but also other attending facts and circumstances. It may also consider the question as to whether the Defendant should be put on terms. The Court, indisputably, however, is not denuded of its power to put the Defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the Appellate Court would have power to interfere therewith. .... What would be reasonable terms would depend upon facts and circumstances of each case".

In the interest of justice and in the facts and circumstances of the case, we set aside the order impugned and condone the delay in filing the application for setting aside the exparte Decree on payment of exemplary cost of Rs.50,000/-

(viii) 2015(1) CTC 811 (Ajay Kumar Gulecha vs J. Vijayakumar and another), wherein, this Court held as follows:

8. Heard Mr. R. Thiagarajan, learned Counsel for the Petitioner. No doubt, the delay of 1753 days is huge. Law of limitation has been enacted not for destroying the rights of the of the parties. In this case, the property involved is very valuable one measuring about 2.30 Acres along with a building. When rights on such a valuable property is involved in the Suit, the rights of the parties should be decided on merits.

14. The Hon'ble Supreme Court recently in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others, 2013 (5) CTC 547 (SC) : 2013 (5) LW 20 held that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an Application for condonation of delay. The Hon'ble Supreme Court referred to its earlier judgments in G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore, MANU/SC/0161/1988 : 1988 (2) SCC 142; O.P. Kathpallia v. Lakhmir Singh (dead) and others, MANU/SC/0322/1984 : 1984 (4) SCC 66; State of Nagaland v. Lipok AO and others, MANU/SC/0250/2005 : 2005 (1) MWN (Cr.) 166 (SC) : 2005 (3) SCC 752; New India Insurance Co. Ltd. v. Shanti Misra, MANU/SC/0547/1975 : 1975 (2) SCC 840; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, MANU/SC/0141/2010 : 2010 (5) SCC 459, which declared that the Court should be liberal in dealing with Condone Delay Petition. The principles are elucidated in the said judgment and Paragraphs 15 and 16 of the Judgment are usefully extracted 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 en capsule 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-challan manner requires to be curbed, of course, within legal parameters."

The Hon'ble Supreme Court also referred to some of its Judgments regarding Law of Limitation. Paragraphs 10, 11 and 12 are usefully extracted as follows:

"10. In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, MANU/SC/0141/2010 : 2010 (5) SCC 459, where a Two-Judge Bench of this Court has observed that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the Law of Limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate.

11. In Improvement Trust, Ludhiana v. Ujagar Singh and others, MANU/SC/0417/2010 : 2010 (6) SCC 786, it has been held that while considering an Application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves.

12. A reference to the principle stated in Balwant Singh (dead) v. Jagdish Singh and others, MANU/SC/0487/2010 : 2010 (8) SCC 685 would be quite fruitful. In the said case the Court referred to the pronouncements in Union of India v. Ram Charan, MANU/SC/0238/1963 : AIR 1964 SC 215; P.K. Ramachandran v. State of Kerala, MANU/SC/1296/1997 : 1997 (2) CTC 663 (SC) : 1997 (7) SCC 556; and Katari Suryanarayana v. Koppisetti Subba Rao, MANU/SC/0545/2009 : 2009 (4) CTC 286 (SC): 2009 (11) SCC 183 and stated thus:

25. We may state that even if the term sufficient cause has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness as it is understood in its general connotation.

26. The Law of Limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. 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."

(ix) 2013 (3) CTC 220 (N.P. Srinivasan vs S. Santhalakshmi) wherein this Court held that when the defendant was not served with any notice at any point of time and when the plaintiff had played fraud on the Court and also when long delay in filing the application was sufficiently explained by the defendant, the delay can be condoned.

(x) 2009 (4) CTC 722(S. Janaki vs M/s Swetha Associates rep by its Partner), wherein this Court held as follows:

(xi) 2007 (4) CTC 310 (T. Indira vs R. Deepa), wherein this Court has held that a Court must take liberal view while considering the application to condone the delay when summons were not directly served on the defendants and affixture was done at place where such persons never lived and publication was also effected in such place.

(xii) 2007 (1) LW 26 (Murali vs Wilkinson Sward (India) Ltd, wherein this Court held as follows:

19. Refusing to condone the delay would result in foreclosing the party from putting forth his defence. Normally, the Court should lean towards disposal of the cases on merits by affording a fair opportunity. An exparte Decree is not final, so long as the party had no knowledge of the Decree passed against him. While so, the Transferee Company - Gillette India Limited cannot be burdened with the liability without trial when no indifference could be attributed to Gillette India Limited. It is well settled that the words "Sufficient Cause" should receive liberal construction so as to advance substantial justice. When no negligence or inaction or want of bonafide is imputable to a party, the lower Court, after Enquiry has condoned the delay finding that there is "Sufficient Cause" and also setting aside the exparte order. When the Court below has exercised the discretion, exercising the Revisional Jurisdiction, the High Court would not interfere unless the Impugned Order is shown to be perverse or manifestly erroneous. There is nothing to suggest that the Impugned orders suffer from perversity or erroneous approach warranting interference. These Civil Revision Petitions are bereft of merits and are bound to fail.

13. Countering the submissions made by the learned Senior Counsel, appearing for the petitioner, Mr.V. Lakshminarayanan, learned counsel, appearing for the first respondent, submitted that the trial Court had rightly dismissed the application for the reason that the defendants have not explained the reasons for the delay in a proper manner. Further, the learned counsel submitted that the defendants have set up a false case in the affidavit, filed in support of the application, before the trial court. Hence, on that ground alone, the application is liable to be rejected. In support of his contention, the learned counsel relied upon the following judgments:

(i) 2015(1) SCC 680 H. Dohil Constructions Co Pvt Ltd vs Nahar Exports Ltd , wherein the Apex Court held as follows

20. In the case on hand, the delay in refiling was 1727 days. As rightly pointed out by the learned Senior Counsel for the Appellant(s), the Respondents paid the scrutiny charges on 11.04.2008 as disclosed in the Receipt No. 73 issued by the High Court of that date. When the appeal papers were filed on 06.09.2007 and the scrutiny charges were paid on 11.04.2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the Respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the Respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the Appellant(s), we find that there was no convincing explanation as to how the Respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The Respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the Appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a matter of fact the appeal papers were filed without payment of any Court fee. This only affirms the stand of the Appellant(s) that there was no bona fide in the Respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non-grant of relief of specific performance. We also fail to see as to how the Respondent No. 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow-up action to ensure that its appeals were duly registered in the High Court. In this context the maxim Vigilantibus Non Dormientibus Jura Subveniunt (Law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The Respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days delay involved in filing the appeals.

(ii) An unreported judgment of the Hon'ble Supreme Court of India dated 13.09.2013 made in Civil Appeals Nos.8183 and 8184 of 2013, wherein the Apex Court held as follows:

24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years.

(iii) 2008 (17) SCC 448 (Pundlik Jalam Patil (d) by Lrs vs Exe.Eng.Jalgaon Medium Project and another), wherein the Hon'ble Supreme Court held as follows:

19. In Ramlal and others vs. Rewa Coalfields Ltd. [ AIR 1962 SC 361], this court held that: "in construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. `It is further necessary to emphasis that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration." On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour.

(iv) 2008 (1) MLJ 1214 (SC) (Mahabir Singh vs Subhash and Others), wherein the Hon'ble Supreme Court held as follows:

8. Thus, even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order IX Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation.

(v) 2003 (1) L.W 585 (Sundar Gnanaolivu vs Rajendran Gnanavolivu), wherein the Division Bench of this Court held as follows:

15. On a conspecus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words, when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condoncation of delay can be favourably ordered.

(vi) An unreported judgment of this court dated 9.9.2016 in CRP (NPD) No.2828 of 2016, wherein this Court held as follows:

9. It is a settled position that a party, seeking condonation of delay, should give sufficient cause for the delay. In the case on hand, the inordinate delay of 610 days in representing the papers was not properly explained by the plaintiffs. The ratio laid down by the Hon'ble Supreme Court in the judgment reported in 2015 (1) SCC 680 (H. Dohil Constructions Company Private Limited vs Nahar Exports Limited and another) squarely applies to the facts and circumstances of the present case. Since the plaintiffs have not explained the reasons for the delay, the trial Court had rightly dismissed the application. In these circumstances, I do not find any reason to interfere with the order passed by the trial Court. Hence the Civil Revision Petition is devoid of merits and the same is dismissed. No costs. Consequently, connected CMP is closed.

(vii) 2013 6 CTC 143 (Padmavathy and others vs D. Mariappan), wherein this Court held as follows:

30. It is also brought to the notice of this Court that the petitioners had already sold the property in favour of one Ravikrishnan and he had filed a petition under Section 47 CPC, that was dismissed. The respondent purchased the property, pursuant to the exparte decree obtained through the Court below. It is not in dispute that the respondent filed E.P.No.21 of 2008, got sale deed through Court of law and the respondent has also filed the suit in O.S.No.65 of 2009 against the said Ravikrishnan, which is pending before Sub-Court, Ponneri. The said Ravikrishnan also filed suit in O.S.No.208 of 2010, seeking declaration of title and other consequential relief. The aforesaid factum was not disputed by the petitioners and the respondent. Having sold the property to another person, the petitioners have no subsisting right over the suit property to maintain this Revision. Hence, it is crystal clear that the revision preferred by the petitioners, under Article 227 of the Constitution of India has no merits for allowing the same and that there is no error or infirmity in the impugned order, so as to warrant any interference by this Court and accordingly, the revision is liable to be dismissed.

(viii) 2009 (5) CTC 48 (Shanmugam vs Chokkalingam), wherein this Court held as follows:

14. In this backdrop, when we approach the facts and circumstances of the case, I could see that the petitioner had applied for condonation of delay of 332 days to set aside the exparte decree on 9.6.2007 that was long after he had received notice in the EP and after taking time for filing counter in the said EP on 14.12.2006 and 25.1.2007. This would go to show that the petitioner was not diligent in filing the petition to set aside the exparte decree immediately after he received the notice in the execution proceedings. However, he had affirmed in his affidavit that he had filed the petition immediately after the receipt of the notice in the execution petition and that is found to be untrue. Admittedly, the petitioner is working in a Bank and the reason stated by him was that he was not granted leave on 12.6.2006, on which date the exparte decree was passed. He had also alleged that he was negligently silent and therefore, he could not take steps to set aside the exparte decree immediately. Nothing was available in the affidavit towards the reasons for such negligence. Therefore, it could be construed as an inaction coupled with negligence on the part of the petitioner. The attitude of the petitioner in not filing the petition to set aside the exparte decree immediately after the receipt of the notice in the EP would also make that inaction coupled with negligence as wilful and that would also go to show that the petitioner has not placed the truth before the Court. Apart from that, he had not explained the delay in taking steps to set aside the exparte decree from the date of receipt of the notice in the execution proceedings till he files the petition to set aside the exparte decree on 9.6.2007. That would show that the petitioner was not diligent in defending the case. According to the aforesaid judgments of this Court, the inaction even after taking notice from the EP Court would amount to wilful negligence on the part of the petitioner. Even if the Court wants to construe the reason assigned by the petitioner liberally in order to give him an opportunity to contest the suit, the laches on the part of the petitioner in not taking steps to file the petition to set aside the exparte decree immediately on knowing the passing of exparte decree against him would render no assistance from the Court. Even though the delay caused in filing the petition to set aside the exparte decree was 332 days, it was not explained by the petitioner with sufficient cause to condone the delay as contemplated in the judgment of our Honourable Apex Court. The petitioner is seriously lacking to apply the provision of Section 5 of Limitation Act, as the affidavit filed by the petitioner before the lower Court was also vague and bereft of particulars without any explanation for period commencing from the date of passing of the exparte decree i.e., on 12.6.2006 till the date of filing of the petition i.e, on 9.6.2007.

14. In the aforesaid circumstances, I could see that the lower Court had correctly exercised its jurisdiction to dismiss the application filed by the petitioner. Therefore, I find no reason to interfere with the order passed by the lower court.

(ix) 2003 (2) MLJ 837 (P. Perumal vs Minor Kumaresan), wherein this Court held as follows:

7. It is true that question of condonation of delay should be liberally considered to advance the cause of substantial justice. However, in the present case as apparent from the orders passed by the trial court that after passing the preliminary decree, notice had been issued in the final decree proceedings and thereafter notice was further issued in execution case, the petitioner had appeared and paid some amounts in instalments and long thereafter two petitions under Order 9 Rule 13 CPC had been filed. It is further noticed that after Mr. Ramanathan left practice, the case was called on several occasions and on behalf of the petitioner Mr.K.S. Suresh, Advocate had got the matter adjourned to 14.3.1999 to file vakalath for the petitioner. Thereafter the matter was again adjourned on several occasions and the final decree was passed long thereafter. From the aforesaid discussion made by the trial court, it is apparent that the plea of the petitioner that he was not aware of the subsequent proceedings, is not acceptable.

(x) 1996(1) CTC 717 (Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust vs R.M. Sevagan Chettiar), wherein this Court held as follows:

7. It has been repeatedly held by this Court that ex parte decrees cannot be set aside on vague allegations that the defendant was ill. It is for the defendant to prove that he was so ill on the particular day that he could not attend Court. Until then, it could not be said that there was sufficient cause for his non-appearance. Without proving the sufficient cause to the satisfaction of the Court, no person can claim to have the ex parte decree set aside. In this connection, the ruling of this Court in Arukkani Ammal v. Guruswamy, MANU/TN/0238/1986 : (1987)1MLJ32 can be looked into. The learned Chief Justice has laid down the proposition that ex parte decrees cannot be set aside on value allegations of illness.

8. In this case, the Rent Controller was not satisfied with the fact that the tenant was so ill as to disable him from attending Court on 14.12.1993. That conclusion is correctly taken, in view of the fact that there is absolutely no evidence on record to prove the alleged illness of the tenant. The Appellate Authority is, therefore, in error in reversing the conclusion of the trial court without properly appreciating the reasoning of the trial Court. The Appellate Authority has proceeded on a wrong impression that the trial court has dismissed the application only because it was a second application on the part of the tenant to set aside the ex parte decree. The Appellate Court has failed to note that the mere production of the certificate alleged to have been issued by a doctor, will not prove the illness of the party, unless the party himself gets into the witness box and speak about the same.

14. On a careful consideration of the materials available on record, the submissions made by the learned counsel on either side and the judgments, relied upon by the learned counsel on either side, it could be seen that the first respondent/plaintiff filed a suit in O.S.No.8957 of 2011 for Specific Performance and Permanent injunction. Since the defendants failed to appear before the trial Court, they were set ex-parte and an ex-parte decree was passed on 28.08.2012.

15. Pursuant to the decree passed in the suit in O.S.No.8957 of 2011, the plaintiff filed an Execution Petition in E.P.No.2155 of 2013 on 03.06.2013. It is not in dispute that the defendants 1, 2 and 4 entered appearance in the Execution Petition on 14.02.2014. Thereafter, on 04.04.2014, the defendants 1, 2 and 4 filed an application in I.A.No.6698 of 2014 to condone the delay of 157 days in filing the application to set side the ex-parte decree.

16. According to the defendants 1,2 and 4, they came to know about the ex-parte decree passed in the suit in O.S.No.8957 of 2011 in the first week of October 2013 through a friend of the 5th defendant. It is relevant to extract paragraph-5 of the affidavit, which reads as follows:

In the first week of October, when the 3rd and 5th defendants have come to Chennai for complete health checkup, had met one of the 5th defendant fried and heard from him that a suit has filed against the defendants. As soon as they have got the information, they have checked before this Court and came to the knowledge that O.S.No.8957 of 2011 has filed for specific performance and permanent injunction. Further, the suit has got exparte and a decree and judgment passed on 28.08.2012 and also against their brothers and sisters. We were shocked to hear this proceeding and trying to get information from defendant friend Mr.Khalid A.K. Buhari, who had purchased the suit property from the defendant and had the same before the Joint Sub Registrar, Central Chennai, Vide Document No.576 of 2008. We further state that Mr.Khalid A.K. Buhari, who the present owner is also not known about the said exparte decree and judgment. Being the owner of the property Mr.Khalid A.K. Buhari was not made party to the proceeding since he is being the necessary party. Through enquiry, it has informed that a summons was sent to wrong address. Therefore, we have not received the summons and also unaware about the summon and the proceeding.

17. It is relevant to note that the defendants have not mentioned the name of the friend of the 5th defendant in the affidavit. Since the defendants have calculated the delay from the date of their knowledge, the burden to prove that they had the knowledge of the ex-parte decree only at a later stage, is heavily on the defendants 1, 2 and 4. Though the defendants 3 and 5 filed the application in I.A. No.18953 of 2013 on 14.11.2013 itself to condone the delay of 45 days in filing the application to set aside the ex-parte decree, the defendants 1,2 and 4 who are none other than the brothers and sister of the defendants 3 and 5, have filed the application in I.A.No.6698 of 2015 only on 04.04.2014.

18. It is also pertinent to note that the defendants 1, 2 and 4 entered appearance in the Execution Petition in E.P No.2155 of 2013 as early as on 14.02.2014. Inspite of entering appearance on 14.02.2014, they filed the application to set aside the ex-parte decree only on 04.04.2014. When the defendants had the knowledge about the ex-parte decree passed in the suit in the first week of October 2013 itself, they should have filed the application to set aside the ex-parte decree immediately without any delay. Inspite of the fact that the ex-parte decree was passed on 28.08.2012, the present application has been filed only on 04.04.2014 stating that they had the knowledge only in the first week of October 2013. The reason for not filing the application immediately after the first week of October 2013 was not properly explained by the defendants 1,2 and 4.

19. It is a settled position that a party seeking condonation of delay should show sufficient cause for the condonation of the delay. It is also a settled position that number of days is immaterial for condonation of delay. If a party shows sufficient cause for condonation of delay, the delay can be condoned. But, if a party fails to show sufficient cause even for less number of days, the same cannot be condoned.

20. In the case on hand, though the petitioners/defendants 1, 2 and 4 have stated that they came to know about the ex-parte decree only through a friend of the 5th defendant, the defendants did not even bother to mention the name of the so called friend of the 5th defendant. When the burden of proof lies on the defendants to satisfy the Court with regard to the delay, they should have mentioned the friend's name in the affidavit and have proved that they had the knowledge only in the first week of October 2013 through the said friend. In the case of failure on the part of the defendants to prove the contention stated in the affidavit, filed in support of the petition, the delay cannot be condoned. Though the defendants 1, 2 and 4 have stated that summons were sent to wrong address, the learned counsel, appearing for the respondents, pointed out that the summons were sent to the correct address and that, now the defendants 1, 2 and 4 have given the address of their Power Agent and are making submission that the address, mentioned in the plaint, is wrong.

21. When there is absolutely no explanation on the part of the defendants 1, 2 and 4 with regard to the delay, that had occurred between first week of October 2013 and 04.04.2014, the trial Court had rightly dismissed the petition. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned Senior Counsel for the petitioners, since the petitioners/defendants 1, 2 and 4 have not explained the reasons in any manner whatsoever, the said judgments are not applicable to the present case. The judgments, relied upon by the learned counsel, appearing for the respondents, squarely applies to the facts and circumstances of the present case.

22. The defendants 1,2 and 4 having entered appearance in the Execution Petition on 14.02.2014, chose to file an application to set aside the ex-parte decree only on 04.04.2014. Since the delay that occurred between the first week of October 2013 and 04.04.2014 was not explained in any manner, whatsoever, the trial Court had rightly dismissed the application and declined to condone the delay.

23. In these circumstances, I do not find any error or irregularity in the order passed by the trial Court. Both the Civil Revision Petitions are liable to dismissed. Accordingly, the same are dismissed. No costs. Consequently, connected MPs are closed.

Court	Chennai High Court
Decided On	Oct-20-2016
Case Number	C.R.P.(NPD)Nos. 541 of 2015 & 4973 of 2014 & M.P.Nos. 1 of 2014 & 1 of 2015
Judge	M. Duraiswamy
Appellant	A. Abitha Nachi and Others
Respondent	K.S. Saroja and Others

A. Abitha Nachi and Others Vs. K.S. Saroja and Others - Court Judgment