CRP PD/253/2002 of K.RAMARAJ Vs S.V.A.R.SU.SEVUGAN CHETTIAR on 10 December 2003

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The above Civil Revision Petition has been filed against the Fair andDecretal order dated 23.7.2001 made in I.A.No.330 of 19 94 in O.S.No.89 of1956 by the Court of II Additional Subordinate Judge, Madurai, therebyallowing the application filed by the respondents herein under Section 5 ofLimitation Act and Section 151 of C.P.C. praying to condone the delay of 2450days in filing the application to pass a final decree.2. Tracing the history of the case, what comes to be known is thatthe petitioner is the 12th defendant in the suit filed by the Respondents 1and 2 and their father late OVR.S.V.R.Arunachalam Chettiar for recovery of asum of Rs.40,000/- due from the defendants on registered hypothecation bonddated 21.5.1947 executed by one Balakrishna Naidu and the suit was pending for27 years; that finally the defendants submitted to decree and the suit wasdecreed on 23.4.1983 with costs and interest, further granting two months timefor the defendants to pay the decree amount and the defendants did not pay the same till date; that as per the statute, the time given for filing the finaldecree application being three years, the respondents 1 and 2 have filed thefinal decree application only on 4.1.1993 with an application to condone thedelay of 2450 days in filing the said application.

3. The learned II Additional Subordinate Judge, Madurai, in consideration of the facts pleaded by the parties and upon hearing the learnedcounsel for both, framing proper point for consideration would allow theapplication filed by the petitioners therein on condition to pay a sum ofRs.1000/- to the respondents 4 and 12 therein as cost. Aggrieved by the saidfair and decretal order, the petitioner who is the 12th respondent in theimpugned order has come forward to file the above Civil Revision Petition oncertain grounds put forth as the grounds of revision.

4. Heard the learned counsel for both.

5. During arguments, learned counsel for the petitioner would submit that the preliminary decree was passed on 23.4.1983 thereby granting twomonths time for the defendants to pay the decree amount of Rs.98 ,700/- i.e.on or before 23.6.1983 and as such the plaintiffs should have filed the finaldecree application within three years under Article 137 of the Limitation Acti.e. on or before 23.6.1986; that they filed the application in the year 1993along with the application under Section 5 of the Limitation Act to condonethe delay of 2450 days that has been condoned by the lower Court withoutapplying its mind as to whether those reasons are true and valid and withoutany material to substantiate the reasons for the delay and hence he would prayto set aside the order of the lower court.

6. At this juncture, the learned counsel for the petitioner would cite the following judgments:

1) (1962)2 SCR 762 (Ramlal, Motilal and Chhotelal Vs. Rewa CoalfieldsLtd.)

2) AIR 1971 Calcutta 204 (Bhaktipada Majhi Vs. Sub- Divisional Officer,Kalna and others)

3) AIR 1972 Rajasthan 161 (State of Rajasthan Vs. Ramnath and others)

7. In the first judgment cited above, the Hon'ble Apex Court in a case of delay in filing the appeals before it has held that "in showingsufficient cause for condoning the delay, the appellant has to explain thewhole of the delay covered by the period between the last date for filing theappeal and the date on which the appeal was actually filed."

8. In the second judgment cited above, the Hon'ble Judge of the

Calcutta High Court citing the Full Bench Judgement of the Madras High Courtreported in (1890) ILR 13 Madras 269 (FB) has quoted " the words sufficientcause should receive a liberal construction so as to advance substantialjustice where no negligence, nor inaction, nor want of bona fides is imputableto the appellant." and would continue that the said decision received approvalof the Supreme Court of India in Dinabandhu Sahu v. Jadumoni Mangaraj, AIR1954 SC 411 and (AIR 1962 SC 361) and Lonard Gram Panchayat v. Lramgiri, AIR

9. In the third judgment cited above, a Division Bench of the Rajasthan High Court has held that " test is whether it is bona fide cause , acause for delay which by due care and attention, the party could have avoidedcannot be a sufficient cause."

10. On the contrary, learned counsel for the respondents 1 and 2

would submit that they filed the suit for recovery of a sum of Rs.40,000 /-due from the petitioner and other defendants on registered hypothecation bonddated 21.5.1947 executed by one Balakrishna Naidu; that the suit was draggedon by the defendants and finally the defendants submitted to decree on23.4.1983 and the suit was decreed on the same day with costs and interestgranting two months time for the defendants to pay the decree amount, whichhad not been paid by them till date, which itself will clearly reveal theintention of the respondent herein and the other defendants in evading to paythe suit debt for 27 years; that since the respondents 1 and 2 were travellingin and outside India due to their business commitments, they were of thegenuine opinion that there is time for filing final decree petition and hencethey have contacted their advocate to file the final decree application; thatunfortunately they learnt that their Advocate who conducted the suit havingthe case bundles lying at his office had passed away sometime in 1986 and hisoffice having been shifted, there was difficulty in tracing the office and thecase bundle and hence there was a delay; that the learned Subordinate Judge,has rightly passed an order condoning the delay subject to the condition ofpaying the cost of a sum of Rs.1000/- to the petitioner herein; that there isno irregularity or infirmity in the order passed by the lower Court and hencehe would pray to dismiss the above Civil Revision Petition.

11. In consideration of the facts pleaded, having regard to thematerials placed on record and upon hearing the learned counsel for both whatcomes to be understood is that the petitioner had submitted to the decreeresulting in the suit coming to be decreed on 23.4.1983 with costs andinterest, with the grant of two months time for the defendants to pay thedecree amount and the defendants not only within the stipulated period of twomonths but even thereafter since did not pay the amount, the plaintiffs havingfiled the application under Section 5 of the Limitation Act seeking to condonethe delay of 2450 days and the lower Court having considered the reasonsassigned therein particularly that the plaintiffs have gone abroad and in themean time their senior counsel having passed away they were not able to pursuethe decree, ultimately resulting in the said delay to occur and this reasonhaving been positively considered, the lower Court ultimately has allowed theapplication for condonation of delay filed on the part of theplaintiffs/respondents herein, testifying the validity of which the 12thdefendant has come forward to file the above Civil Revision Petition seekingto set aside the fair and decretal order dated 23.7.2001 passed by the Courtof II Additional Special Judge, Madurai in I.A.No.330 of 1994 in O.S.No.89 of1956.

12. A careful perusal of the order passed by the lower Court wouldreveal that the court below has on a careful consideration of the facts andcircumstances encircling the whole affair connected to the delay of 2450 daysand for, the reasons assigned on the part of the petitioners/plaintiffs and infull consideration of the same on facts and the position of law on the subjectwould ultimately arrive at its conclusion to allow the application forcondoning the delay on a cost of Rs.1000/-.

13. All the judgements cited above would lay emphasis that there mustbe reasonable cause for condoning the delay right from the date of defaulttill the date of filing of the application under Section 5 of the LimitationAct seeking to condone the delay and therefore, the only question that has tobe decided in this case being whether the reasons offered for the condonationof the delay of 2450 days has been properly and reliably explained on the partof the plaintiffs and on facts whether the lower Court has properlyappreciated the explanation offered on the part of the petitioners/plaintiffsand on proper grounds has allowed the same and therefore this Court has reasonto arrive at the conclusion that it is not only the conclusions arrived at bythe lower Court in allowing the application for condonation of delay, but alsothe manner in which the said application has been allowed stand beyondquestion and hence, the interference of this Court sought to be made into thewell considered and merited order passed by the lower Court is neithernecessary, nor warranted in the circumstance of the case and hence thefollowing order:

In result,(i) there is no merit in the above Civil Revision Petition and thesame is dismissed;

(ii) the order dated 23.7.2001 made in I.A.No.330 of 1994 in O.S.No.89of 1956 by the Court of II Additional Subordinate Judge, Madurai therebyallowing the application filed by the respondents herein under Section 5 ofthe Limitation Act on costs is confirmed;

(iii) however, in the circumstances of the case, there will be noorder as to costs;

(iv) consequently, C.M.P.No.8563 of 2002 is also dismissed.

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