- (1.) BY consent of both the counsel the C.R.P. itself is taken up for final disposal. The petitioner is the second defendant in O.S. No.36 of 1990 on the file of the First Additional District Munsif, Coimbatore. The respondent herein filed the said suit for partition and allotment of half share in the plaint schedule properties. In the said suit an ex parte preliminary decree was passed as early as 29.4.1992. The petitioner filed I.A. No.2420 of 1996 to condone the delay of 1590 days in filing the petition underO.9, Rule 13, C.P.C. and for setting aside the ex parte preliminary decree stating that her husband who was the first defendant in the suit died on 4.11.1992. He was looking after the case and further her counsel also died. Hence the petitioner was not aware about the ex parte decree and she came to know about the same on 24.8.1996 only when she received the notice in I.A. No.1901 of 1996 filed by the respondent for passing the final decree. Immediately on coming to know of the same, the petition has been filed for condoning the delay of 1590 days along with the petition for setting aside the ex parte preliminary decree. The said application was dismissed by the Court below. The present revision has been filed against the same.
(2.) IT is the contention of the learned counsel for the petitioner that the petitioner purchased the property under a registered sale deed from one Kondasamy Naidu on 9.8.1956. The respondent filed the suit on the basis of a Will dated 28.6.1956 executed by the said Kondasamy Naidu. The respondent did not produce the original Will before Court. The counsel for the petitioner who was looking after the case of the petitioner died without informing about the ex parte decree in the suit to the husband of the petitioner, the first defendant in the suit. Subsequently the first defendant, the husband of the petitioner also died within a short period and the petitioner was in dark about the litigation. She came to know about the ex parte decree only on receipt of the summons in the final decree proceeding. The petition has been filed immediately thereafter to condone the delay in filing the petition for setting aside the ex parte preliminary decree as well as to set aside the ex parte preliminary decree. The Court below had dismissed the petition only on the ground that the petitioner did not let in any evidence to establish the cause for the delay, which reason cannot be sustained. On the contrary, the learned counsel for the respondent contended that the delay is an inordinate one which has not been properly explained. The delay of every day has to be properly explained. In the absence of such explanation, it has to be construed that there is n sufficient cause for such delay and as such the order of the Court below do not suffer from any error of jurisdiction. Apart from that, it is further contended that there is no material to establish that the counsel did not inform the first defendant, the husband of the petitioner and the petitioner was not aware about the pendency of the litigation; especially when she being a party to the proceeding. When the Court below had considered the material available on record and exercised its discretion in a proper manner, it is not open to this Court to set aside the same while exercising the power under Sec.115, C.P.C. I carefully considered the above contentions of both the counsel. Admittedly the ex parte decree was passed on 29.4.1992. Immediately thereafter the counsel appearing for the petitioner died. The husband of the petitioner also died on 4.11.1992. The respondent and Kondasamy Naidu, the original owner of the property are the children of one Narasimmalu Naidu through his second wife Alamelu Naidu. The first defendant, the husband of the petitioner is the son of the said Narasimmalu Naidu through his first wife. The brother of the respondent executed the Will in favour of the respondent on 28.6.1956 and thereafter sold the property to the petitioner herein under the registered sale deed dated 9.8.1956 and he died on 12.8.1956. The suit for partition was filed by the respondent on 4.1.1990 and the same was decreed ex parte on 29.4.1992. The petitioner for condoning the delay in filing the petition for setting aside the ex parte decree and the petition for setting aside the ex parte decree were filed on 8.9.1996, as the petitioner came to know about the ex parte decree only on 29.4.1992 on receipt of summons in I.A. No.1901 of 1996. The question for consideration is whether the petitioner had explained the delay with sufficient cause. A perusal of the order of the Court below reveals that the lower Court has observed that the petitioner did not let in any oral evidence to establish the fact of the death of their counsel. Further the petitioner has not examined any other witness or produced any document to establish the sufficient cause for the delay. Further the lower Court has observed that the reasons given by the petitioner are not sufficient cause for condoning the inordinate delay. On these grounds the Court below held that the delay has not been properly explained.
(3.) BEFORE entering into the discussion on merits, it is worthwhile to refer the two recent judgments which lays down the principle for consideration of the petition under Sec.5 of the Limitation Act. A Division Bench of this Court in the case of Subramaniam v. Tamil Nadu Housing Board (2000)3 MLJ. 181 after considering several judgments of various High Courts as well as the Apex Court has held as follows: "To sum up the legal position, (1) the word" sufficient cause "should receive liberal construction to do substantial justice; (2) what is" sufficient cause "is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is in the discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion; (5) once the Court accepts of positive exercise of discretion and normally the superior Court should not disturb such finding unless the discretion was exercised on wholly untenable ground or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship,the discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor; (9) If the delay was occasioned by party deliberately to gain time, then the Court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether." In Balakrishnan v. M.Krishnamurthy Balakrishnan v. M.Krishnamurthy (1999)1 MLJ. (S.C.) 114): (1998)2 C.T.C. 533 the Supreme Court considered the scope of Sec.5 of the Limitation Act, 1963 as well as the powers of revision under Sec.115 of Code of Civil Procedure. In that case, the Apex Court pointed out that want of extra vigilance need not be sued as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. It is further pointed out that 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. I deem it necessary to quote paragraphs 12 to 14 from the said judgment in extenso, which read thus: "12. Rules of limitation are not meant to destroy the right of parties. They re meant to see that parties do not resort to dilatory tactics, back 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 never 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 upsit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every remedy must be kept alive for a legislatively fixed period of time. 13. 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 Sec.5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide: Shakuntala Devi Jain v. Kuntal Kumari vide: Shakuntala Devi Jain v. Kuntal Kumari A.I.R. 1969 S.C. 575 and State of West Bengal v. The Administrator, Howrah Municipality A.I.R. 1972 S.C. 749. 14. 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 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 Court 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 than when Courts condone the delay due to latches on the part of the applicant the Court shall compensate the opposite party of his loss." From the above principles laid down by the Division Bench of this Court as well as the Apex Court, it is clear the length of delay is no mater but acceptability of the explanation is the only criterion and the Rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly. Further if the explanation offered by the party does not smack of mala fide or it is put forth as part of the dilatory strategy, the Court must show utmost consideration to the suitor and the party show that he/she is put to manifest injustice or hardship if the delay is not condoned. Hence it is for the Court to consider whether the petitioner had deliberately to gain time allowed the suit to be decreed ex parte income forward with the petition to condone the delay and to set aside the ex parte preliminary decree. The further aspect to be considered by this Court is whether by condoning the delay, and setting aside the ex parte decree, the respondent will be put any hardship by exercise of the discretion vested with the Court. As state already, the preliminary decree was passed ex parte on 29.4.1992. There is no dispute that shortly thereafter the counsel for the petitioner also died. The husband of the petitioner who was incharge of the case also died in November, 1992. Though the petitioner may be a part to the proceeding, when her husband was alive and he was looking after the case there is no need for the petitioner to let in nay oral evidence or to examine independent witness as stated by the Court below to establish her cause that she was not aware about the ex parte decree Naturally the husband might be in charge of the case. Hence, the statement of the petitioner that she came to know about the ex parte decree only on 24.8.1986 when she received the summons in the final decree proceeding cannot be doubted very much. The respondent who filed the suit on the basis of the will did not produce the original will but only a certified copy has been produced. Whether on the basis of the certified copy of the will the respondent can establish her claim is also a question which goes to the root of the matter. ;