Padmavathi Kupparao vs R.B. Anandan

Mr. S.Rajeswaran, J.—This Civil Revision Petition has been filed under Section 115 CPC by the plaintiff in O.S.No.7703/1995 filed on the file of the First Assistant City Civil Court Judge, Chennai.

The brief facts of the case are as follows:

The revision petitioner/plaintiff filed O.S.No.7703/1995 against the respondent/defendant for a declaration, declaring that the revision petitioner/plaintiff is the absolute owner of the triangular passage on the northern side of his property bearing Door No.47, Arunachala Pandavan Street, Purasawalkam, Chennai-7 for mandatory injunction directing the respondent/defendant to remove the door at the entrance of the passage and the staircase abutting the petitioner/plaintiff''s passage and also for a permanent injunction restraining the respondent/defendant from proceeding with the illegal construction of the staircase at the petitioner/plaintiff''s passage. Written statement has been filed by the respondent/defendant opposing the reliefs sought for by the petitioner/plaintiff.

It appears that the suit was dismissed for default on 02.11.2001 and to restore the same the petitioner/plaintiff filed I.A.No.10799/2003 under Order 9 Rule 9 CPC, which was opposed by the respondent/defendant by filing a counter. The trial court by order dated 04.08.2004 dismissed the application filed in I.A.No.10799/2003 and aggrieved by the same, the petitioner/plaintiff filed C.M.A.No.83/2009 on the file of the Third Additional City Civil Judge, Chennai. By order dated 05.07.2010, C.M.A.No.83/2009 was dismissed upholding the order of the Trial Court and aggrieved by the order passed by the Third Additional City Civil Judge, in dismissing C.M.A.No.83/2009, the above Civil Revision Petition has been filed by the petitioner/plaintiff.

Heard the learned counsel appearing for the petitioner/plaintiff and the learned counsel appearing for the respondent/defendant. I have also gone through the documents available on record.

In I.A.No.10799/2003, under Order 9 Rule 9, to restore the suit filed in O.S.No.7703/1995, it is stated by the petitioner/plaintiff that an Advocate Commissioner was appointed in I.A.No.14533/1995 for inspecting the suit schedule property and the Commissioner had also received his fees. However, the Advocate Commissioner did not file his report eventhough the matter has been adjourned time and again. On 02.11.2001, the suit was called and even on that day, no report was filed by the Advocate Commissioner. However, as the petitioner/plaintiff''s counsel was engaged in another Court, there was no appearance on behalf of the petitioner/plaintiff and therefore, the suit was dismissed for default on 02.11.2001. Hence, he prayed for the setting aside of the order of dismissal and restoring the suit.

This petition was opposed by the respondent/defendant by stating that even after filing the written statement, the petitioner/plaintiff has unnecessarily dragged on the proceedings and finally the suit was posted in the special list on 11.04.1997. But, without adducing evidence, the petitioner/plaintiff moved an application for the appointment of Advocate Commissioner and accordingly, on 22.04.1997, an Advocate commissioner was appointed and thereafter the petitioner/plaintiff never appeared before this Court. It is further stated by the respondent/defendant that the matter was called on 02.11.2001 and admittedly the petitioner/plaintiff did not appear before Court, but, she is now putting the blame on her advocate by stating that her advocate could not appear as he was engaged in some other court. The past behaviour and conduct of the petitioner/plaintiff would also prove that she was not at all interested in proceeding with the matter and therefore, there was no merit in the application.

The Trial Judge found that after framing the issues in the suit, the suit was posted for hearing in the special list on 11.04.1997. At that time, an application was filed for appointing an Advocate Commissioner to inspect the suit property and to file his report. That application was dismissed for default for non-appearance of the petitioner/plaintiff on 25.01.2000. Then, another application was filed to restore the application dismissed for default and the same was allowed on 17.01.2001. Finally, once again that application was dismissed for not filing the Commissioner''s report on 26.04.2001. Then the suit was posted for plaintiff''s evidence for the hearing dates viz., 10.10.2001, 18.10.2001 and 02.11.2001. However, neither the petitioner/plaintiff nor her counsel appeared before the Court on the said dates. Hence, the suit was dismissed for default on 02.11.2001. Finding fault with the petitioner/plaintiff for stating that the plaintiff was under the impression that the Commissioner application was still pending on 02.11.2001 without knowing that it was already dismissed for default, the trial court held that the petitioner/plaintiff is not conducting the suit with due care and caution. Hence, after holding that the reasons given are not acceptable and sufficient to condone their absence, the trial court dismissed I.A.No.10799/2003.

The Lower Appellate Court also felt that the petitioner/plaintiff is not diligent and careful in conducting the proceedings. It also referred to the dismissal of the petition filed for appointment of Commissioner. It concurred with the findings of the trial court that no sufficient reasons have been put forward by the petitioner/plaintiff and therefore, the CMA was dismissed on 05.08.2010.

Now, the only question that arises for consideration in this revision petition is whether the revision petitioner/plaintiff could be permitted to reopen the suit and to proceed with the trial on merit or not?

Both the Courts below have held that the petitioner/plaintiff is not diligent in conducting the proceedings and the petitioner/plaintiff is always seeking adjournments after adjournments or not appearing before the Court even after the suit has been posted in the special list for trial.

The learned counsel for the respondent/defendant relying on the judgment reported in 2010 (8) SCC 685 (Balwant Singh (Dead) v. Jagdish Singh and others) submitted that when sufficient cause is not shown by the petitioner/plaintiff, then the liberal approach of the Court will not apply and in this case, no sufficient cause has been shown by the petitioner/plaintiff as correctly held by both the Courts below.

After hearing the arguments, after going through the entire records and also the judgment reported in 2010 (8) SCC 685 (cited supra), I am of the considered view that the revision petitioner/plaintiff is to be given one more chance to proceed with the suit and to contest the same on merits.

It is true that sufficient cause should be shown by the petitioner/plaintiff at the same time it is an admitted fact that in a petition of this nature there is always some default on the part of the petitioner/plaintiff and that it does not mean that the suit itself is to be thrown out at the threshold itself without deciding the questions involved.

In 2010 (8) SCC 685 (cited supra), the Hon''ble Supreme Court has held as follows:

"25. We may state that even if the term `sufficient cause'' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness'' as it is understood in its general connotation.

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, as 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.

The application filed by the applicants lack in details. Even the averments made are not correct and exfacie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.

In State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.

Liberal construction of the expression `sufficient cause'' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause'' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997]

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 Edition, 2005]"

It is true that in the above decision, the Hon''ble Supreme Court held that liberal concession cannot be concluded by doing injustice to the other side and the delay should be condoned to do substantial justice without resulting in injustice to other party. At the same time, in the very same judgment, the Hon''ble Supreme Court held that it is difficult to state any strait jacket law which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. In the above said judgment, there is a delay of 778 days in filing application and therefore, a petition has been filed under Section 5 of the Limitation Act. Only in that context, the judgment has been rendered, whereas in the present case there is no delay involved in filing the petition for restoration.

Further, the Courts should always endeavour to decide a case on merits rather than throwing it out on technicalities. At the same time, the other side should be equally compensated for the prejudice and agony caused to them.

In such circumstances, I am of the considered view that this Civil Revision Petition is to be allowed on condition that a sum of Rs.5,000/- should be paid by the Civil Revision Petitioner/plaintiff directly to the counsel appearing for the respondent/defendant in this Court within a period of three weeks from the date of receipt of a copy of this order. On such payment is made within the time stipulated above, then, the trial court is directed to restore the suit and conduct the proceedings preferably on a day-to-day basis and to dispose of the same within six months thereafter.

At the same time, it is made clear that if the cost of Rs.5,000/- is not paid within the time stipulated, then, this order gets recalled and withdrawn automatically without any reference to this Court.

In the result, the Civil Revision Petition is allowed in the above terms. No cost.