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Judgment
Honourable Mr. Justice G. Rajasuria
The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
The respondents herein/plaintiffs filed the suit for specific performance. It so happened that according to the plaintiffs, the suit summons could not be served in person through R.P.A.D. as the summons taken out to the address furnished in the caveat, returned as "left". Through Court also summons could not be served, as the summons was returned as the defendant was not available in the address. Whereupon, publication was effected in Dinamalar newspaper and thereafter, the defendant was set ex-parte and the judgment and decree was passed. Whereupon the E.P. was filed. Thereafter, with a delay of 547 days, the defendant filed the application u/s 5 of the Limitation Act to get the delay condoned in filing the application under Order 9 Rule 13 of CPC to get set aside the ex-parte decree. Counter was filed, whereupon, after hearing both the sides, the Lower Court dismissed the I.A. u/s 5 of the Limitation Act. Being aggrieved by and dissatisfied with the same, the present Civil Revision Petition is focussed on various grounds.
The learned counsel for the Revision Petitioner, placing reliance on the grounds of revision, would pyramid his arguments which could succinctly and precisely be set out thus:
The defendant is having properties including the suit property in Kovilpatti itself, so to say, within the jurisdiction of the Court concerned.
The revision petitioner is also owning his house there and his permanent address is at Kovilpatti only. No doubt, in the lapsed caveat petition, he furnished his Chennai address, so to say, his daughter''s address at Chennai. However, the caveat petition got lapsed and thereafter alone the suit was filed, but they have not even chosen to take summons to the permanent address of the defendant in Kovilpatti. Ex. P1 the Ration Card would refer to Ambattur address in Chennai. However, he temporarily stayed there, so to say, in his daughter''s house at Ambattur, therein. But the Lower Court simply placed reliance on the Ambattur address and assumed and presumed as though the defendant evaded service of summons. In the same Ex. P1, the changed address at Kovilpatti is also found specified, but the Lower Court Judge has not taken note of the same, but he commented upon the conduct of the defendant unjustifiably warranting interference in revision.
Per contra the learned counsel for the respondents/plaintiffs in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the defendant, would advance his arguments which could tersely and briefly be set out thus:
It is not as though the revision petitioner is a man who cannot see the wood for trees. In fact, the suit summons was served at his address in Periasamipuram Village and his contentions are fraught with falsity and mendacity and the Lower Court correctly relied upon Ex. P1 the Ration Card and having given such address in the caveat petition, he cannot now turn around and contend that he was not residing in that place. Absolutely there was no reason much less valid reason for condoning such huge delay. Hence, the Lower Court taking into account the pros and cons of the matter, correctly dismissed the application warranting no interference in revision. He would rely on the decision of the Hon''ble Supreme Court in the case of Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another,
The point for consideration is as to whether the Lower Court was not justified in dismissing the application u/s 5 of the Limitation Act for condoning the delay.
A mere perusal of the typed set of papers and the Lower Court records would reveal that in the plaint itself, the following two addresses are given:
a) 45, Main Road, Kamaraj Nagar, Avadi, Chennai-71.
b) Periasamipuram Village, Vilathikulam Taluk, Tuticorin District.
There is nothing on record to show that at the Periasamipuram address, the defendant was served with summons. The records would reveal that summonses sent to Chennai address alone were returned as "left", whereupon publication was effected at the request of the plaintiffs and thereafter the defendant was set ex-parte. At this juncture, I would like to point out that the Courts should not be justified in simply resorting to Order 5 Rule 20 of CPC mechanically. It has to be seen as to whether all possible efforts in serving in person the summons on the defendant, ended in a fiasco. If that is so, then only Order 5 Rule 20 of CPC should be resorted to, for effecting publication. But in this case, after initially taking steps to get the summons served in person on the defendant, and on seeing that the steps did not get fructify, simply the plaintiffs got an order from the Court for publication of summons for defendant in Dinamalar newspaper. Indisputably and indubitably, the defendant is owning the suit property as well as other properties and his house within the jurisdiction of the same Court and his permanent address is at Periasamipuram. In fact, in his petition also he would state that only on coming to know that at Periasamipuram, E.P. notice was sought to be served, he entered appearance. In such a case, I am at a loss to understand as to why at the suit stage itself, effective steps were not taken to get the suit summons served at his address at Periasamipuram. In my considered opinion, no man having head over the shoulder, after filing caveat in order to pre-empt the opponent from getting ex-parte order, would simply to his own detriment remain absent for such a long period. These preponderance of probabilities are also in favour of the revision petitioner/defendant. The suit itself is one for declaration and for consequential injunction relating to an immovable property.
The learned counsel for the respondents/plaintiffs would cite the decision of the Hon''ble Supreme Court in the case of Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, I would like to distinguish and differentiate on facts the said precedent from the case on hand. In Pundlik Jalam Patil''s case, there was a delay of 1724 days which remained unexplained and the matter was relating to land acquisition and the Court also highlighted that the time prescribed is not meant for being flouted.
However, I would like to refer to the decision of the Honourable Supreme Court in Balwant Singh (Dead) Vs. Jagdish Singh and Others, Certain excerpts from it, would run thus:
The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., this Court took the view : (AIR pp. 363-65, paras 7 & 12)
In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in 4 I.D (N.S.) 899
It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;
The expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)
A mere running of the eye over the above precedents would indicate and spotlight that in appropriate cases, the delay can be condoned. The discussions supra would exemplify and demonstrate that effective steps were not taken by the plaintiffs to get the suit summons served on the defendant even though the defendant''s permanent place of residence is in Kovilpatti itself and still he is residing there at Kovilpatti owning his house as well as his properties. The Lower Court was not justified in simply ignoring Ex. P1 wherein, at the back of the first sheet, the changed address of the defendant at Kovilpatti also is found mentioned. Hence, I am of the considered view that one more opportunity has to be given to the defendant to contest the matter. While holding so, I am making it clear that in this case, even before the service of summons, he was set ex-parte. The defendant is also enjoined to file one another application to get the delay condoned in filing the written statement along with the application under Order 9 Rule 13 of CPC. Presently, I am concerned only with the application u/s 5 of the Limitation Act for getting the delay condoned. I could see no reason not to accept the reasons as found set out in the affidavit and in the interest of audi alteram partem, I would like to condone the delay subject to the payment of a cost of Rs. 7,000/- (Rupees Seven Thousand Only) payable by the petitioner to the respondent within a period of one week from the date of receipt of a copy of this order. The Civil Revision Petition is disposed of accordingly. Consequently, the connected miscellaneous petition is closed. No costs.