S. Muniyandi vs Mumtaj and Others

P. Devadass, J.—This revision arises out of dismissal of I.A. No. 424 of 2014 in O.S. No. 306 of 2009 on the file of I Additional Sub Court, Madurai.

The plaintiff instituted the suit in O.S. No. 306 of 2009 in the Court of I Additional Sub Court for specific performance of sale agreement against the legal heirs of late Vellaya Rowther, with whom he had entered into a sale agreement. The suit was dismissed for default on 17.03.2011. After a delay of 1207 days, the said I.A. No. 424 of 2014 was filed by the plaintiff under Section 5 of the Limitation Act, 1963 to condone the delay. The Trial Court dealt with it under Section 3 of the Limitation Act and coming to the view that each day delay has not been explained, dismissed I.A. No. 424 of 2014.

The learned counsel for the revision petitioner/plaintiff would submit that the plaintiff was led to believe that there will be compromise. Efforts were undertaken after the demise of Vellaya Rowther and he was made to believe it and he is also in possession of the property. In such circumstances, he was not serious about the suit as he was hoping that the matter would be amicably settled. In the circumstances, in view of the absence of the plaintiff, the suit was dismissed as he has not taken steps to amend the plaint i.e. to include the L.Rs.

The learned counsel for the revision petitioner submitted that the Trial Court could have given an opportunity to adjudicate the matter. The learned counsel also cited N. Balakrishnan Vs. M. Krishnamurthy, .

On the other hand, the learned counsel for the respondents/defendants would submit that no proper reason has been given in the affidavit. There is no mention about when the plaintiff came to know about passing of ex-parte decree and Section 3 of the Limitation Act stands in his way. The very fact that the period of delay is counted from such date of knowledge it goes to the jurisdiction in this matter. In this connection he would cite: (i) Parimal Vs. Veena @ Bharti, and (ii) Mahabir Singh Vs. Subhash and Others, .

I have considered the rival submissions, perused the materials on record and the decisions cited.

Actually this is a delay condonation petition. Revision Petitioner projects Section 5 of the Limitation Act and respondent projects Section 3 of the Limitation Act. The matter has to be looked from a different angle. When a particular period has been fixed for adjudicating any matter, filing any petition thereafter with sufficient cause for the delay, the Court in its judicial discretion in fit and appropriate cases can condone the delay. This is the spirit behind Section 5 of the Limitation Act. (See also N. Balakrishnan Vs. M. Krishnamurthy, )

It is true that earlier each day of delay has to be explained. Even some Courts expected each minute of delay to be explained. Those things have gone. Those Judges, who viewed the matter tinged glass have gone. Now liberal approach is advocated. It is an area where march of law is vibrant. Merely because of delay a meritorious matter or a chance of adjudication cannot be denied further adjudication. But at the same time Court birds cannot be allowed to wander in Court by showing them indulgence. Even poverty is now considered a sufficient cause to condone the delay.

Now sufficient cause has been understood in different ways. It depends on facts and circumstances of each case. Now length of delay does not matters much but substance, a substantial cause for justice matters much.

Petitioner/plaintiff is in possession of the property. He was under the hope that the matter would be solved at the negotiation table and thus he was not serious about the amendment petition to change the name of L.R.. Under these circumstances, according to him, the suit came to be dismissed for default.

Of course there is a delay of 1207 days. But length of delay is not a criteria. Now, substance is the criteria. Here is the case where the plaintiff alleges that under the agreement he advanced a considerable amount as advance money and he is serious of execution of the sale agreement. The respondents says that some land dealing stated to have taken place between the plaintiff and late Vellaya Rowther, the respondents are nothing to do with the said agreement. Thus there is a ''lis'' between both. Who will win and who will loose will be known by giving an opportunity to both sides. But denying such an opportunity, particularly at the threshold is not proper and more particularly the plaintiff is not a Court bird or a busy body or is interested in embroiling others in litigations. So, looking from this angle and the trend of the law an opportunity for disposal on merit could be given to the plaintiff. Thus, indulgence can be shown to the plaintiff. Definitely this will not be to the liking of the respondents/defendants. They will be prejudiced. It can be compensated by ordering costs to the other side. We make it Rs. 1,200/-. The learned counsel for the respondent advocated contributing the same for some charity. It is a good gesture.

In view of the foregoings, this Civil Revision Petition will be allowed on deposit of Rs. 1,200/- to the High Court Legal Services Committee attached to this Bench on or before 14.10.2015.

For reporting compliance post on 15.10.2015.