"8. ............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. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate -
G.Adilakshmi. Vs. S.Anbalagan
Court : Chennai
Judge : G.RAJASURIA, J.
Decided On : Jul-30-2012
These two civil revision petitions are preferred under Section 115 of the Code of Civil Procedure as against the fair and decreetal orders dated 02.04.2012 passed by the learned Subordinate Judge, Tirupattur, Vellore District in I.A.No.2 of 2012 in CMA No.3 of 2008 and 22.11.2007 passed by the learned District Munsif, Tirupattur in I.A.No.250 of 2007 in O.S.No.335 of 2004 respectively.
COMMON ORDER
1. These two civil revision petitions are focussed as against the fair and decreetal orders dated 02.04.2012 passed by the learned Subordinate Judge, Tirupattur, Vellore District in I.A.No.2 of 2012 in CMA No.3 of 2008 and the fair and decreetal orders dated 22.11.2007 passed by the learned District Munsif, Tirupattur in I.A.No.250 of 2007 in O.S.No.335 of 2004 respectively.
2. Heard both sides.
3. A summation and summarisation of the germane facts, absolutely necessary for the disposal of these two civil revision petitions would run thus:
a] The respondent in these revision petitions filed the suit in O.S.No.335 of 2004 seeking the following reliefs:
To pass a judgment and decree as follows:
a] to direct the defendant to execute the sale deed in favour of the plaintiff duly receiving the balance sale consideration and to deliver possession of the suit property within the time stipulated by this court;
b] in default, to execute the sale deed through court process;c] to direct the defendant to pay the costs of the suit to the plaintiff.
(extracted as such)
b] The revision petitioner/defendant after entering appearance, remained ex parte. It so happened as narrated by both sides that on point of jurisdiction, the suit, which was originally filed before the Sub Court, Tirupattur was transferred to District Munsif Court, Tirupattur.
4. At this juncture, I would like to observe that it is the duty of the transferee court to issue notice to both sides. However, the learned counsel for the plaintiff/respondent herein would submit that he received notice and entered appearance. But, the learned counsel for the defendant/revision petitioner herein would submit that no such notice was sent by the transferee court and the defendant was kept in the dark. Only on receipt of the E.P notice sent at the instance of the plaintiff, she came to know that an exparte decree was passed and whereupon, she approached her Advocate and filed an application under Order 9 Rule 13 of CPC to get set aside the exparte decree with an application to get the delay of 298 days condoned in filing the said application.
5. The court below numbered both the applications, which in my opinion, should not have been done. The normal practice is that at the first instance, the application under Section 5 of the Limitation Act alone should be numbered and dealt with and thereafter, if at all the delay is condoned, the question of numbering the other application, so to say, the application filed under Order 9 Rule 13 of CPC would arise.
6. In this case, unfortunately, the lower court numbered both the applications and dismissed both the applications. Whereupon, as against the dismissal of the application under Order 9 Rule 13 CPC, CMA was filed and it was dismissed for default and I.A.No.2 of 2012 was filed to restore the appeal; however the said application was dismissed; as against which, CRP NPD No.2778 of 2012 was filed and as against the dismissal of the application under Section 5 of the Limitation Act, one other revision petition in CRP NPD No.2811 of 2012 has been focussed.
7. The point for consideration is as to whether the delay of 298 days in filing the application under Order 9 Rule 13 of CPC could be condoned for the reasons found set out in the affidavit accompanying the application under Section 5 of the Limitation Act?
8. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:
(i) 2012(4) Scale 152 [S.Ganesharaju (d) their Lrs and another vs. Narasamma (d) through their Lrs and others] and certain excerpts from it would run thus:
"15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice.
16. Unless respondents are able to show malafide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.
17. Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.
18. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate.
19. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that appellants have shown sufficient cause seeking condonation of delay and same has been explained satisfactorily. "
(ii) 2010(2) Supreme 115 (Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another) and an excerpt from it would run thus:
"8. ............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. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst.Katiji, (1987) 2 SCC 107, N.Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106. ..........................."
(iii) AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and aothers v. Gobardhan Sao and others) and certain excerpts from it would run thus:
"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." (emphasis added)
A mere poring over and perusal of those precedents would highlight and spot light the fact that it is for the court to consider each and every case and decide the lis.
9. Normally, the transferee court should send notice to both sides for their appearance. Here it is not readily known from the order of the lower court whether such notice was sent by the Transferee court, viz., District Munsif Court, Tirupattur to the defendant/revision petitioner herein.
10. It is a trite proposition of law that the court, which has to pass an exparte decree should necessarily go into the merit of the matter and deal with it; but it appears, in this case, the learned District Munsif has not resorted to such a procedure also as it is ex facie and prima facie clear from the perusal of the records.
11. Accordingly, I am of considered opinion that the orders passed in both the applications should be set aside and the delay should be condoned. Consequently, the exparte decree also has be set aside.
12. Inasmuch as the suit is one for specific performance touching upon the immovable property and the delay has occurred only because the original suit was transferred from Sub Court, Tirupattur on the point of jurisdiction, I would like to condone the delay subject to payment of cost of a sum of Rs.2,000/- (Rupees two thousand only) cumulatively payable by the revision petitioner/defendant in favour of the respondent/plaintiff within a period of one week from the date of receipt of a copy of this order. On such compliance with the condition, so to say, the payment of cumulative cost as ordered by this court, the delay shall stand condoned and the orders passed in I.A.No.2 of 2012 and I.A.Nos.250 of 2007 as well as the exparte decree passed on 04.11.2011 shall stand set aside. The lower court shall do well to see that the matter is disposed of within a period of four months from the date of complying with this order as it is stated that the written statement was also filed by the defendant/revision petitioner.
13. With the above direction, both these civil revision petitions are disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
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