Lena Finance vs R.M. Kandasamy

Aruna Jagadeesan, J.—This Civil Revision Petition is filed by the plaintiffs to set aside the order dated 24.9.2008 in IA. No. 333/2007 in OS. No. 242/2002 on the file of the I Additional Subordinate Judge, Madurai, condoning the delay of 306 days in filing the petition to set aside the exparte decree dated 8.3.2006.

Ms. AL. Ganthimathi, the learned Counsel for the petitioners would contend that no sufficient cause was shown by the respondent in condoning the delay and even assuming that the respondent was in abroad for his treatment from 2.8.2006 to 22.9.2006, there was no reason as to why he has not filed an application at least immediately thereafter to set aside the exparte decree and in the absence of any explanation, it could not be held that he was prevented by sufficient cause in prosecuting the suit.

The learned Counsel for the petitioners would place reliance on the decisions rendered in the cases of S. Panchatcharam v. S. Sambandha Mudhaliar and Anr. 2008 6 MLJ 534, Sivakumar and Anr. v. R. Sengodan 2007 4 CTC 506, State of Nagaland Vs. Lipok AO and Others, and Mannariah & Sons P. Ltd., Harbour Link Road, Tuticorin and two Ors. v. M.M. Sankaranarayanan 2006 2 LW 99 in support of her contention.

Per contra, Mr. R. Venkataraman, the learned Counsel for the respondent, while supporting the impugned order of the court below, would submit that sufficient cause had been shown for the absence of the respondent and there is no reasonable ground to think that the delay was caused by the respondent deliberately to gain time, which made the court below to accept the explanation and condoned the delay and he would rely on the decisions rendered in the cases of The State of Bihar and Ors. v. Arjun Prasad Rajak 2009 2 CCC 171 SC, Thangavel v. Subash 2008 1 TNCJ 740-Mad, Adhikesavan Vs. Kalavathi, and The Director of School Education, Government of Tamil Nadu, Chennai-6 v. Fathima Yakum 2009 2 CLT 320.

There is no dispute that the respondent is aged about 65 years and he has produced document before the court below to show that he has been taking treatment for ailments, such as blood pressure, diabetes and heart ailment and it is natural that he is prone to those diseases due to age factor. He has specifically stated that he has been taking treatment in America, where his son is residing, from 2.8.2006 to 22.9.2006. It is his case that he entrusted the case to his brother, who is one of the defendants in the suit to look after the case, but his brother has not taken any care, which has resulted in passing of the exparte decree.

The respondent has examined himself and explained the delay in filing the application to set aside the exparte decree. Even if the respondent appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. No doubt true, he ought to have been more vigilant, but his failure to adopt such extra vigilance cannot be a ground to oust him from the litigation with respect to the suit. It is no doubt true that proof by sufficient cause is a condition precedent for exercise of extraordinary restriction vested in the court. What accounts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion.

In the case of N. Balakrishnan Vs. M. Krishnamurthy, , it is held by the Honourable Supreme Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause, which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient.

What constitutes sufficient cause cannot be laid down by hard and fast rules. In the case of New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, , the Honourable Supreme Court has held that the discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. Like wise, in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , a Bench of Two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of the matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice. That being the life purpose for the existence of the institution of courts. It observed that it is common knowledge that Supreme court has been making justifiably liberal approach in matters instituted in the court, but the message does not appear to have percolated down to all the other courts in the hierarchy. Further it reiterated that the expression "every day''s delay must be explained" does not mean that a pedantic approach should be made and the doctrine must be applied in a rational common sense, pragmatic manner.

When the factual background of this case is considered in the light of the legal principles as noted above, the inevitable conclusion that could be arrived at is that the delay of 306 days deserves condonation. Even if the respondent was found to be negligent, the other side could be suitably compensated by awarding a reasonable cost and the ends of justice can be met only if the respondent is allowed opportunity to prove his case within a reasonable time. Therefore, I am of the considered view that the inconvenience caused to the petitioners for the delay on account of the respondent being absent from the court in this case can be compensated by awarding appropriate cost.

In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed. However, the respondent is directed to pay a cost of Rs. 4000/- in addition to the cost of Rs. 1000/- awarded by the court below, in all Rs. 5000/- to the opposite party within a period of 15 days from the date of receipt of a copy of this order.