MEGHRAJ Vs. JESRAJ KASTURJEE

JUDGEMENT

(1.) AN application under Order 9, Rule 9, C. P. C. was filed by the defendant in O.S. No. 330 of 1966 on the file of the City Civil Court, Madras, to set aside the ex parte decree passed in that suit on 29 -10 -1968 and to restore the suit on the file for being disposed of in accordance with law. This application was filed on 29 -11 -1968. When it came up for hearing before the II Assistant Judge. City Civil Court, Madras, the learned Judge after hearing both sides, accepted the contention of the respondent that the petition was barred by limitation and in view of the fact that no petition for excusing the delay under Section 5 of the Limitation Act was filed along with the petition to set aside the ex parte decree, he dismissed the application. C. M. A. 19 of 1970 was preferred to the Principal Judge, City Civil Court, Madras. The learned appellate Judge noted that there was a day's delay in the presentation of the application. But he was in accord with the learned Assistant Judge that as there was no application apparently a written application, under Section 5 of the Limitation Act, the main application was not maintainable. He relied upon an unreported decision of this court in C.R.P. No. 2312 of 1966 (Mad), Gety Bros, and Co. v. Agarali Adamji. He would not agree with the contention of the petitioner that the delay of a day was not wilful and that the reasons given in the affidavit in support of the main application for such a day's delay ought to be noticed before final orders are passed. On the only ground that there was no prayer to excuse the delay in the filing of the main application, the court declined to interfere and admit the application by excusing the day's delay. It is as against this, the present civil revision petition has been filed.

(2.) MR . P. V. Subramaniam, the learned counsel for the petitioner, contends that the court ought to have given him an opportunity to file an affidavit, or indeed a petition under Section 5 of the Limitation Act setting forth the circumstances under which the day's delay had occurred. In any event, he would state that an oral application was made before the courts below and that by itself was sufficient for the courts to go into the sufficiency of the cause of delay and find whether the application to set aside the ex parte decree could ultimately be entertained or not. Such an opportunity was denied to the petitioner both by the first court as well as the appellate court. As the orders of dismissal of both the courts below are founded purely on technical grounds, he prays for the restoration of the application or in the alternative for a remand of this subject to the first court for a reappraisal of the facts after giving an opportunity to both parties to state their respective contentions as regards the sufficiency or otherwise of the day's delay. Mr. Himmatlal Mardia, appearing for the first respondent, however, seriously contends that the laches on the part of the petitioner cannot be cured by an oral application and that it is not necessary in the eye of law to give the petitioner a second opportunity to state his reasons for the day's delay, as it would cause prejudice to the respondents. Of course, reliance is placed on the decision of our Court cited above.

(3.) IN Mt. Kulsoom -un -Nissa v. Noor Mohamed. AIR 1936 All 666 a Division Bench of that court presided over by Sulaiman, C. J. and Bennet, J. was dealing with a case where a memorandum of appeal was filed beyond time, but without a written application for excusing the delay under Section 5 of the Limitation Act, Considering this aspect Sulaiman, C. J. speaking for the Bench said -