T. Lakshmiammal and anr. Vs. M. Jothi Anandan - Court Judgment

Excerpt:
- orderabdul hadi, j.1. defendants 2 and 4, in o.s. no. 219 of 1989 on the file of sub court, udumalpet, has preferred this civil revision petition against the dismissal of their i.a. no.2241 of 1994 for excusing the delay of 415 days in filing the petition to set aside the ex parte decree dated 1.9.1993 in the said suit. the said suit is for recovery of a sum of rs. 1,15,141 as damages, with future interest at 12 per cent per annum from the date of suit till realisation. the plaintiff respondent is a tenant under the defendants, carrying on business in the suit premises. according to the respondent/plaintiff the suit is laid on the ground that the petitioners herein have cut-of water supply and electricity to the said premises and thereby he suffered business loss. this claim is denied in the written statement. however, we are not very much concerned with the rival contentions on the merits of the suit. originally there were two defendants in the suit. pending suit first defendant died in the year 1991 and defendants 3 and 4 were brought on record as his legal representatives. it appears that subsequently, the third defendant also died in the year 1993. at the time when the ex parte decree was passed on 1.9.1993, defendants 2 and 4 were alone the defendants and they have filed the abovesaid i.a. second defendant is the mother and fourth defendant is the son.2. one reason given in the affidavit of the fourth defendant son, filed in support of the i.a. is that between 1.8.1992 and 5.11.1993 the second defendant mother was suffering from tuberculosis and the fourth defendant had to look after her. another reason given in the said affidavit, is that the said fourth defendant himself was not well from 1.8.1993.3. the abovesaid i.a. was presented on 21.11.1994. the fourth defendant has also examined himself as p.w. 1 in the abovesaid i.a. and he has also filed two medical certificates regarding the abovesaid illness of the said two defendants. the first medical certificate in relation to fourth defendant states that the fourth defendant was under treatment for peptic ulcer from 1.8.1993 to 14.11.1994 and he was advised to have complete rest during the said period, the next medical certificate speaks about the second defendant's illness. it states that she was admitted in the hospital for pulmonary tuberculosis and she was in the hospital from 1.8.1992 to 5.11.1993. when p.w. 1 deposed about the abovesaid illness and the abovesaid certificates, there was no specific suggestion that the above said certificates were bogus or not genuine. however, there was an admission on the part of p.w. 11 in cross-examination. he admitted that from 1.8.1993 to 14.11.1993 he was doing business. the relevant portion of evidence of p.w. 1 runs as follows:4. the court below has dismissed the said i.a mainly on two grounds. one is doctors who gave the medical certificates have not been examined. the other reasons is that p.w. 1 has admitted in cross-examination that he has looking after his business between 1.8.1993 and 14.11.1993.5. with reference to these two reasonings, learned counsel for the petitioner submitted that, with reference to the first of the two reasons, even though the doctors have not been, examined, p.w. 1, the recipient of the certificates has been examined to prove the said certificates. secondly, regarding the other abovesaid reason, learned counsel submits that p.w. 1 himself has also deposed that he was looking after the business not directly. further, the said counsel also very such relief one decision of the supreme court in state of haryana v. chandra rani and ors. (1996) 2 l.w. 18.6. on the other hand, learned counsel for the respondent reiterates the reasonings of the court below and he also points out that even earlier the petitioners have allowed another suit filed by the plaintiff to be decreed ex parte. (that suit sought for a permanent injunction and mandatory injunction, in relation to the same premises.) learned counsel also relied on decision in sarada v. devaki : air1935mad659 and srinivasulu v. krishnammal 100 l.w. 566.7. while considering the rival submissions regarding the above said one reason given by the learned irial judge that the doctors who have given the abovesaid certificates have not been examined, i must say that even though they have not been examined, p.w. 1 the fourth defendant has entered into he witness box and spoken about his and his mother's illness and the medical certificate given to him in relation to his illness and relation to the illness, of his mother. admittedly, there is no cross-examination of p.w. 1 suggesting that those medical certificates are bogus and not genuine. in the circumstances, those certificates could be taken as proved and the decision reported in sarada v. devaki : air1935mad659 , cited supra, may not have strict application to the facts of the present case. relevant observation of the division bench on which emphasis was laid, runs as follows:there is nothing in the evidence act, or outside it, which makes a certificate given by amedk cal practitioner by itself evidence at all.but it does not appear that in the abovesaid decision any body entered the witness box to prove the medical certificate, but in the present case, as already mentioned, p.w. 1 has entered the witness box and proved those certificates. so the present case is not a case where a medical certificate alone is produced without any further proof. the following observation in srinivasulu v. krishnammal 100 l.w. 566, was also pressed into service.the present order allowing the petition for condonation of delay in filing the petition for setting aside the ex parte decree appears to be obviously the result of a very liberal attitude and casual manner in which ex parte decrees are being set aside.but every case turned on its facts and i do not think that the abovesaid general observation would go to advance the present contention of the learned counsel for the respondent.8. on the other hand, following observations of the supreme court are found in the decision reported in state of haryana v. chandra rani (1996) 2 l w. 18, cited supra, where there was a delay of 109 days:it is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. but the message does not appear to have percolated down to all the other courts in the hierarchy. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. a litigant does not stand to benefit by resorting to delay. in fact he runs a serious risk...making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.... 9. no doubt, learned trial judge relied on the above referred to deposition given by p.w. 1 in cross-examination. but there too, it must be noted that p.w. only admitted that he was looking after his business between 1.8.1993 and 14.11.1993 (and not 14.11.1994). in other words, it does not appear that he deposed that he was looking after the business between 1.8.1993 and 14.11.1994. whatever that may be, he has also added that he did not look after his business directly and he has also deposed that his business place is only his house. no doubt, in his affidavit filed in support of the i.a., he did not say that he or his mother was inpatient in any hospital. however, the medical certificates show about the nature of ill-ness in each of the two cases.10. taking all these into consideration, particularly the fact that the suit is for damages as stated above, and particularly in view of the above referred to observations of the supreme court, i feel that the court below has committed error of jurisdiction in not having allowed the above said la. accordingly, c.r.p. is allowed and i set aside the order of the court below passed in i.a. no.2241 of 1994 on 26.3.1996. however, in the circumstances of the case i also feel that it is necessary that the petitioners should be put on terms. accordingly, while setting aside the impugned order, i allow the abovesaid i.a. no.2241 of 1994 on condition that the petitioners pay the respondent a sum of rsv2,000 by way of costs, within four weeks from today. consequently, c.m.p. is dismissed.

Judgment:
ORDER

Abdul Hadi, J.

1. Defendants 2 and 4, in O.S. No. 219 of 1989 on the file of Sub Court, Udumalpet, has preferred this civil revision petition against the dismissal of their I.A. No.2241 of 1994 for excusing the delay of 415 days in filing the petition to set aside the ex parte decree dated 1.9.1993 in the said suit. The said suit is for recovery of a sum of Rs. 1,15,141 as damages, with future interest at 12 per cent per annum from the date of suit till realisation. The plaintiff respondent is a tenant under the defendants, carrying on business in the suit premises. According to the respondent/plaintiff the suit is laid on the ground that the petitioners herein have cut-of water supply and electricity to the said premises and thereby he suffered business loss. This claim is denied in the written statement. However, we are not very much concerned with the rival contentions on the merits of the suit. Originally there were two defendants in the suit. Pending suit first defendant died in the year 1991 and defendants 3 and 4 were brought on record as his legal representatives. It appears that subsequently, the third defendant also died in the year 1993. At the time when the ex parte decree was passed on 1.9.1993, defendants 2 and 4 were alone the defendants and they have filed the abovesaid I.A. second defendant is the mother and fourth defendant is the son.

2. One reason given in the affidavit of the fourth defendant son, filed in support of the I.A. is that between 1.8.1992 and 5.11.1993 the second defendant mother was suffering from tuberculosis and the fourth defendant had to look after her. Another reason given in the said affidavit, is that the said fourth defendant himself was not well from 1.8.1993.

3. The abovesaid I.A. was presented on 21.11.1994. The fourth defendant has also examined himself as P.W. 1 in the abovesaid I.A. and he has also filed two medical certificates regarding the abovesaid illness of the said two defendants. The first medical certificate in relation to fourth defendant states that the fourth defendant was under treatment for peptic Ulcer from 1.8.1993 to 14.11.1994 and he was advised to have complete rest during the said period, The next medical certificate speaks about the second defendant's illness. It states that she was admitted in the hospital for pulmonary Tuberculosis and she was in the hospital from 1.8.1992 to 5.11.1993. When P.W. 1 deposed about the abovesaid illness and the abovesaid certificates, there was no specific suggestion that the above said certificates were bogus or not genuine. However, there was an admission on the part of P.W. 11 in cross-examination. He admitted that from 1.8.1993 to 14.11.1993 he was doing business. The relevant portion of evidence of P.W. 1 runs as follows:

4. The court below has dismissed the said I.A mainly on two grounds. One is Doctors who gave the medical certificates have not been examined. The other reasons is that P.W. 1 has admitted in cross-examination that he has looking after his business between 1.8.1993 and 14.11.1993.

5. With reference to these two reasonings, learned Counsel for the petitioner submitted that, with reference to the first of the two reasons, even though the doctors have not been, examined, P.W. 1, the recipient of the certificates has been examined to prove the said certificates. Secondly, regarding the other abovesaid reason, learned Counsel submits that P.w. 1 himself has also deposed that he was looking after the business not directly. Further, the said counsel also very such relief one decision of the Supreme Court in State of Haryana v. Chandra Rani and Ors. (1996) 2 L.W. 18.

6. On the other hand, learned Counsel for the respondent reiterates the reasonings of the court below and he also points out that even earlier the petitioners have allowed another suit filed by the plaintiff to be decreed ex parte. (That suit sought for a permanent injunction and mandatory injunction, in relation to the same premises.) Learned Counsel also relied on decision in Sarada v. Devaki : AIR1935Mad659 and Srinivasulu v. Krishnammal 100 L.W. 566.

7. While considering the rival submissions regarding the above said one reason given by the learned irial Judge that the doctors who have given the abovesaid certificates have not been examined, I must say that even though they have not been examined, P.W. 1 the fourth defendant has entered into he witness box and spoken about his and his mother's illness and the medical certificate given to him in relation to his illness and relation to the illness, of his mother. Admittedly, there is no cross-examination of P.W. 1 suggesting that those medical certificates are bogus and not genuine. In the circumstances, those certificates could be taken as proved and the decision reported in Sarada v. Devaki : AIR1935Mad659 , cited supra, may not have strict application to the facts of the present case. Relevant observation of the Division Bench on which emphasis was laid, runs as follows:

There is nothing in the Evidence Act, or outside it, which makes a certificate given by amedk cal practitioner by itself evidence at all.

But it does not appear that in the abovesaid decision any body entered the witness box to prove the medical certificate, But in the present case, as already mentioned, P.W. 1 has entered the witness box and proved those certificates. So the present case is not a case where a medical certificate alone is produced without any further proof. The following observation in Srinivasulu v. Krishnammal 100 L.W. 566, was also pressed into service.

The present order allowing the petition for condonation of delay in filing the petition for setting aside the ex parte decree appears to be obviously the result of a very liberal attitude and casual manner in which ex parte decrees are being set aside.

But every case turned on its facts and I do not think that the abovesaid general observation would go to advance the present contention of the learned Counsel for the respondent.

8. On the other hand, following observations of the Supreme Court are found in the decision reported in State of Haryana v. Chandra Rani (1996) 2 L W. 18, cited supra, where there was a delay of 109 days:

It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk...making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal....

9. No doubt, learned Trial Judge relied on the above referred to deposition given by P.W. 1 in cross-examination. But there too, it must be noted that P.W. only admitted that he was looking after his business between 1.8.1993 and 14.11.1993 (and not 14.11.1994). In other words, it does not appear that he deposed that he was looking after the business between 1.8.1993 and 14.11.1994. Whatever that may be, he has also added that he did not look after his business directly and he has also deposed that his business place is only his house. No doubt, in his affidavit filed in support of the I.A., he did not say that he or his mother was inpatient in any hospital. However, the medical certificates show about the nature of ill-ness in each of the two cases.

10. Taking all these into consideration, particularly the fact that the suit is for damages as stated above, and particularly in view of the above referred to observations of the Supreme Court, I feel that the court below has committed error of jurisdiction in not having allowed the above said LA. Accordingly, C.R.P. is allowed and I set aside the order of the Court below passed in I.A. No.2241 of 1994 on 26.3.1996. However, in the circumstances of the case I also feel that it is necessary that the petitioners should be put on terms. Accordingly, while setting aside the impugned order, I allow the abovesaid I.A. No.2241 of 1994 on condition that the petitioners pay the respondent a sum of Rsv2,000 by way of costs, within four weeks from today. Consequently, C.M.P. is dismissed.