Shanmugam Petitioner v. Chokkalingam

Prayer: This Revision has been preferred under Section 115 of CPC against the order, dated 19.02.2008, passed in I.A No. 1824 of 2007 in O.S No. 35 of 2006 on the file of the Principal District Munsif, Kallakurichi.

JUDGMENT

1. This Revision has been directed against the order passed by the lower Court in dismissing the Application seeking for condonation of delay of 332 days in filing the Application to set aside the ex parte decree passed in O.S No. 35 of 2006.

2. The revision petitioner is the defendant in the Suit. The respondent herein, as plaintiff, had filed the Suit in O.S No. 35 of 2006 before the lower Court on the basis of the promissory note executed by the respondent herein/defendant. Since the petitioner/defendant did not appear before the lower Court on 5.6.2006, he was set ex parte and an ex parte decree was passed on 12.06.2006 against the petitioner/defendant. There was a delay of 332 days caused in filing the Petition to set aside the ex parte decree of the lower Court. Hence, the petitioner/defendant filed I.A No. 1824 of 2007 seeking for condonation of delay of 332 days in filing an Application to set aside the ex parte decree. The lower Court has, after hearing both sides, dismissed the said Interlocutory Application, which necessitated the petitioner to file this Revision.

3. The brief facts in the application filed by the petitioner for condonation of delay would runs as follows:

The petitioner herein/defendant is working in a Bank. The respondent herein/plaintiff filed the suit in O.S No. 35 of 2006 on the basis of the promissory note executed by the respondent herein/defendant. The said Suit was posted on 5.6.2006 for the appearance of the defendant/petitioner herein. Since the defendant/petitioner herein did not appear before the Court, he was set ex parte and an ex parte decree was passed against the defendant/petitioner herein on 12.06.2006 by the lower Court. The petitioner/defendant would contend that he had applied for leave on the said date to his higher authority and since the leave was not granted to him, he could not be present before the Court. He did not know about the passing of ex parte decree and he kept quiet ignorantly. The petitioner/defendant could not subsequently meet his counsel and inform about his absence on that date. Thereafter, he approached his counsel and he could be aware of the passing of the ex parte decree only when the execution proceedings were launched against him and the notice was served upon him and immediately, he has filed the Application to set aside the ex parte decree and in the meanwhile, a delay of 332 days caused in filing the Application to set aside the ex parte decree and since it was not wilful and wanton the said delay of 332 days may be condoned.

4. The brief contentions of the plaintiff/respondent herein in his counter in the said application would run as follows:

The petitioner herein/defendant is working in a Bank. The suit in O.S No. 35 of 2006 was filed by the respondent herein/plaintiff against the petitioner herein/defendant on the basis of the promissory note executed by the petitioner herein/defendant in favour of the plaintiff. The petitioner herein knows about the Suit proceedings. The said Suit was decreed ex parte in favour of the respondent herein/plaintiff on 12.06.2008 The respondent herein/plaintiff has initiated execution proceedings in E.P No. 456 of 2006. The petitioner herein/plaintiff was served notice in the said EP. The said EP was posted on 19.4.2007 for filing objections of the petitioner herein/defendant. On the filing of the objections of the petitioner herein/defendant, the said EP was posted on 21.6.2007 for the appearance of the petitioner/defendant. In his objections, the petitioner/defendant did not give any particulars about the filing of an Application to set aside the ex parte decree. After participating in the execution proceedings, the petitioner herein/defendant filed I.A No. 1824 of 2007 seeking to condonation of delay in filing an Application to set aside ex parte decree. Therefore, it cannot be said the petitioner/defendant did not know about the ex parte decree passed in the Suit. Therefore, the Application has to be dismissed.

5. The Trial Court, after considering the entire matter, found that the petitioner had not substantiated his claim and that the explanation given by him is totally unacceptable.

6. Heard Ms. P.T Asha the learned counsel for the petitioner and Mr. P. Valliappan learned counsel for the respondent.

7. The learned counsel for the petitioner would submit in her argument that the petitioner was working in a Bank and the case filed by the respondent/plaintiff in O.S No. 35 of 2006 was posted to 5.6.2006 and subsequently, on 12.06.2006 an ex parte decree was passed against the petitioner/defendant and the petitioner/defendant had applied for leave at his Office for attending the Court, but he was not granted any leave and therefore, he could not appear before the Court on 12.06.2006, on which date the ex parte decree was passed against him. She would also submit that the petitioner could not subsequently meet his counsel and inform about his absence on that date and thereafter he could not approach his counsel and he became aware of the passing of the ex parte decree only when the execution proceedings were launched against him and the notice was served upon him and immediately, he has filed the Petition to set aside the ex parte decree and in the meanwhile, a delay of 332 days caused in filing the Petition to set aside the ex parte decree and since it was not wilful and wanton, the said delay of 332 days may be condoned. She would further submit that in considering the condonation of delay the Courts must be liberal as per the dictum laid down by our Honourable Apex Court reported in between State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749. She would also draw the attention of the Court to a judgment of this Court reported in between Periasamy and others v. Allimuthu and others, 2005 (3) MLJ 425, to the proposition that the omission to adopt such care to be taken in a case by the parties shall not be a ground in refusing condonation of delay. Yet another judgment of this Court reported in between Yanaimal Thottam Trust v. B. Lakshmanan, 2005 (3) CTC 638: 2005 (3) MLJ 439, to the proposition that when the Trial Court is satisfied with regard to the sufficient cause that would be enough to condone the delay under Section 5 of the Limitation Act. She would further submit that the lower Court had not followed this proposition of law, but had come to a conclusion that the petitioner was not entitled to the condonation of delay of 332 days in filing the Application to set aside the ex parte decree and therefore, the order of the lower Court may be interfered with and set aside and the Revision may be allowed.

8. The learned counsel for the respondent would submit in his argument that the petitioner was working in a Bank and he knows about the proceedings of the Court and he cannot plead ignorance regarding the ex parte decree passed against him on 12.06.2006, even though he had engaged his lawyer to contest the suit and he ought to have been diligent in following the case, especially when he was not granted leave by his superior authority on 12.06.2006, on which date the ex parte decree was passed. There was nothing to prevent him to know about the fate of the case immediately or on the next date or reasonably some time later. He would further submit that the petitioner himself had admitted in the affidavit that he was negligent in not noting the said result of the case on 12.6.2006 and therefore, there was no bona fide on the part of the petitioner to seek for condonation. Further, he would submit that the petitioner had not spoken about the participation in the execution proceedings, but only stated that he had received a notice in the execution proceedings and thereafter only he could learn about the passing of the ex parte decree against him. He would further submit that there was sheer negligence on the part of the petitioner in not defending the case properly, even though he knew about the proceedings of the case. He would further submit that the petitioner participated in the execution proceedings on 14.12.2006 & 25.01.2007 seeking for further time to file counter in the EP and thereafter only the Application to condone the delay was filed on 9.6.2007 and these factors have not been disclosed by the petitioner in his affidavit nor the period has been explained in his affidavit. He would, therefore, submit that the petitioner had no bona fide in his claim and he had suppressed the material facts and explanation offered by him in the affidavit will not constitute sufficient cause as per the dictum laid down by this Court as well as the Honourable Apex Court. He would also draw the attention of this Court that however longer or shorter the delay may be, the only thing to be seen is the sufficient cause as mentioned in Section 5 of the Limitation Act. For that, he had cited the judgment of our Honourable Apex Court report in between Balakrishnan v. Krishnamoorthy, 1998 (7) SCC 123. He would also draw the attention of the Court to the Judgment of this Court made in in between Sankaralingam v. V. Rahuraman, 2002 (3) CTC 13, for the proposition that the negligence and inaction and to failure to place any materials before the Court and the absence of arguable points in the case of the petitioner and the vagueness in the affidavit could lead to the presumption that there is no sufficient cause to the condone the delay. He would also draw the attention of this Court to the judgment reported in between Rathinathammal v. Muthusamy and others, 2004 (3) MLJ 36, for the principle of law that when the party aggrieved is not diligent in pursuing the matter, his prayer to condone the delay cannot be ordered. Therefore, he would request the Court that the lower Court had considered this aspect and had come to a conclusion of dismissing the Application filed by the petitioner for condonation of delay of 332 days and the said order is lawful and in accordance with law and therefore, the order of the lower Court may not be interfered with and the said order may be confirmed.

9. I have given anxious thoughts to the arguments advanced on either side. Before going into the merits of the case, it has become absolutely necessary for this Court to refer the Judgment of the Honourable Apex Court reported in between N. Balakrishnan v. M. Krishnamurthy., 1998 (7) SCC 123, which reads as under:

“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. 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. 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 meant 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.

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 case, delay of a very long range can be condoned as the explantion thereof is satisfactory. 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. 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. The words ‘sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”

10. Similarly, the judgment of this Court reported in between Sankaralingam v. V. Rahuraman, 2002 (3) CTC 13, would also enlighten this Court regarding the points to be pondered in a case of condonation of delay. The relevant portion would run as under:

“This Court is inclined to point out the following facts and circumstances which would speak volume against the petitioners (i.e)

(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances,

(b) Vagueness of the affidavit and contradiction between the affidavit and deposition before Court,

(c) Failure to place any materials before Court to substantiate the case, and

(d) Absence of arguable points and law in the defence.”

11. In another judgment of this Court reported between Yanaimal Thottam Trust v. B. Lakshmanan, 2005 (3) CTC 638: 2005 (3) MLJ 439, it has been held as follows:

“The power to be exercised under Section 5 of the Limitation Act is a discretionary exercise that is if the trial Court is satisfied that there is sufficient cause that is enough to condone the delay. That was the reason given by the Courts below that the party should be given an opportunity to meet the case on merits instead of denying the valuable right on technicalities. The trial Court has exercised the jurisdiction in favour of the respondent to meet the case on merits. It is very well settled that when technicalities and substantial justice are pitted against each other, law and Courts would always be in favour of the substantial justice rather than technicalities.”

In yet another judgment of our Honourable Apex Court reported in in between State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 it has been categorically laid down as follows:

“From the above observations it is clear that the words ‘sufficient cause’ should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.

The other judgment of this Court made in between Periasamy and others v. Allimuthu and others, 2005 (3) MLJ 425 would go to show as follows:

“Of course, it may be stated that the third respondent ought to have been more careful in filing the application. The omission to adopt such care need not be used as a ground in refusing to condone the delay. In every pending case, while impleading the legal representatives, in one way or other, there occurs some lapse on the part of the litigant concerned in filing the Application to implead the legal representatives. But that alone is not enough to turn down the plea to implead the legal representatives. When there is no inordinate delay, opportunity is to be afforded to bring on record the legal representatives.”

12. Similarly the judgment of this Court made in between Rathinathammal v. Muthusamy and others, 2004 (3) MLJ 36, would run as follows:

“Admittedly, the 11th defendant received notice in execution proceedings on 26.11.1996, but she filed the petition I.A No. 259 of 1998 to condone the delay of 545 days in filing the petition to set aside the ex parte decree only on 8.6.1998 stating that she was under the impression that her counsel could have taken steps to set aside the ex parte decree which is unbelievable as pointed out by the Trial Court that she had to wait for about two years after entrusting the matter to the counsel. Therefore, considering all these facts, the Trial Court has rightly dismissed the Petition that no sufficient reason was shown by the 11th defendant to condone the delay of 545 days in filing the Petition to set aside the ex parte decree.”

13. On a careful understanding of the aforesaid judgments of our Honourable Apex Court and this Court, I could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bona fide is imputable to a party claiming condonation.

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 ex parte 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 ex parte 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 ex parte decree was passed. He had also alleged that he was negligently silent and therefore, he could not take steps to set aside the ex parte 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 ex parte 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 ex parte decree from the date of receipt of the notice in the execution proceedings till he files the Petition to set aside the ex parte 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 ex parte decree immediately on knowing the passing of ex parte decree against him would render no assistance from the Court. Even though the delay caused in filing the Petition to set aside the ex parte 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 ex parte decree i.e, on 12.6.2006 till the date of filing of the Petition i.e, on 9.6.2007

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.

15. In the result, the Revision Petition is dismissed. Connected Miscellaneous Petition is also dismissed. No costs.