LAKSHMINARAYANAN Vs. VAIGUNDANAMAMANI

JUDGEMENT

(1.) FIRST defendant in O.S. No. 59 of 1992 on the file of Additional Subordinate Judge Tenkasi dismissing his I.A. No. 174 of 1999 filed for condoning the delay of 581 days in representing the petition to set aside the ex parte decree has filed the present revision.

(2.) ACCORDING to the petitioner the respondents herein filed a suit in O.S. No. 59 of 1992 on the file of the Additional Sub Judge, Tenkasi against the petitioner for partition in the suit properties claiming 7"12rd shares in the first item and 2"3rd share in items 2 to 6. The petitioner has filed a written statement denying the claim on the ground that his mother, one brother and four sisters have released their respective shares in his favour and therefore, they are entitled to only 2/9th share. On 12.8.97 the petitioner was set ex parte and a preliminary decree was passed. As he was not well, he could not attend Court on 12.8.97; accordingly he filed a petition to set aside the decree under Order 9, Rule 13, C.P.C. within the time limit, subsequently during December, 1997, his advocate Mr. Kanagaraj Muthupandian died. Therefore the returned petition could not be represented in time. The present counsel Mr.Ramachandran who was appearing along with Mr. Kanagaraj Muthupandian assured him that he will find out the returned papers. He also shifted his office for 2 times and the papers were misplaced. Hence there is a delay of 581 days in representing the set aside petition, its counsel has sworn the affidavit for condoning the delay in representation. The said petition was resisted by the respondents by filing counter affidavit.

(3.) NO doubt, learned senior counsel for the respondents would point out that after passing a preliminary decree, the respondents-decree-holders filed application for appointment of a Commissioner to pass final decree and in such circumstance, any order permitting the petitioner to pursue his petition filed under Order 8, Rule 13 would cause inconvenience and loss to them. I am unable to accept the said contention. Even if it is so, as observed by this Court and the Apex Court in many decisions, the affected party can be compensated by awarding reasonable cost. In the case of N. Balakrishnan v. M.Krishnamurthy, 1998 (7) S.C C. 123, Their Lordships of the Supreme Court have 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 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 sufficients, 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. 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 necessiating 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. 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 suit or 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 vice Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575: 1969 (l) SCR 1006; and State of W.B v. Administrator Howrah Municipality, l972 (I ) SCC 366: 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 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. 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." In the light of the law laid down by the Apex Court in the above referred case and in view of the explanation offered by the counsel by way of an affidavit, 1 am inclined to accept the explanation of the counsel who has shown sufficient cause for the delay. It is worth-while to mention that her there is no delay in filing the petition to set aside the ex parte decree, the delay has occasioned only in representing the said petition and sufficient cause has been shown for the same. In similar circumstances a Division Bench of this Court in Y. Cusbar v. K.Subbarayan, 1994 M.L.J. (N.R.C.) 1 has held thus:- "... If there is any undue delay in representing the papers the delay can be compensated by awarding costs. Therefore, the court is of the view that when the appeal has been filed in time, but there is inordinate delay in representing the papers, returned for rectification of the defects, by the appellate court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs. " After holding so, Their Lordships condoned the delay in representing the papers and awarded costs of Rs. 1,000 to the other side.