Surendra Shridhar Exhibitors vs Shroff Films

B. Veerappa, J—The petitioner who is the plaintiff, filed the above CRP against the order dated 24.9.12 on I.A. 1 made in Misc. No. 14/2006 on the file of the III Addl. Senior Civil Judge and MACT, Belgaum, allowing the application for condonation of delay of 265 days in filing the miscellaneous petition.

It is the case of the petitioner that the petitioner who is plaintiff in O.S. 350/2003 filed suit for recovery of Rs. 9,91,122.95 with future interest at 18% p.a. till the realization, contending that the petitioner is a partnership firm carrying on business of exhibition of motion pictures. It owns a cinema theater at Belgaum run under the name and style of "Hira Theater". The respondent is a proprietary concern which deals with the distribution of films. The respondent had screened some pictures in the petitioner theater. The respondent owed money to the petitioner and inspite of several requests and issuance of notice the respondent did not make any payment. Therefore, the petitioner was constrained to file suit in O.S. 350/03 for recovery of Rs. 9,91,122=95 with future interest.

The respondent-defendant appeared through his Counsel but he did not file written statement.

The petitioner examined one of its Partners as P.W. 1 and got marked documents from Ex. P. 1 to P. 9. The respondent did not cross-examine P.W. 1 and he did not lead any evidence. The learned trial court decreed the suit with costs directing to pay Rs. 9,91,122=95, by his judgment and decree dated 30.5.2005 with interest at 18% p.a. from the date of realization.

Aggrieved by the said judgment and decree, the respondent filed Misc. P. 14/2006 under Order 9 Rule 13 of Code of Civil Procedure praying to set aside judgment and decree dated 30.5.2005 made in O.S. No. 350/2003 stating that it is ex-parte decree and since there was delay in filing the Miscellaneous Petition, the respondent-defendant filed an application seeking for condonation of delay. The said application was resisted by the plaintiff by filing objections. After hearing both the learned Counsel for the parties, the III Addl. Senior Civil Judge and Addl. MACT, Belgaum, passed the order dated 22.01.2011 allowing the miscellaneous petition. The said order was challenged before this Court in CRP. No. 1038/2011 and this court by its order dated 29.11.2011 has allowed the said revision petition and remanded the matter to the Court below. After remand, the III Addl. Senior Civil Judge and Addl. MACT, Belgaum, by his impugned order dated 24.9.12 has allowed the I.A.I. thereby condoning the delay of 265 days in preferring the miscellaneous petition.

Against the said order the present revision petition is filed.

I have heard the learned Counsel for the parties to the lis.

Sri M.G. Naganuri, learned Counsel for the petitioner has contended that even though the respondent appeared through Counsel, he did not file any written statement and the trial court passed the ex-parte decree based on merits and there is no sufficient cause to condone the delay of 265 days in filing the miscellaneous petition. Therefore, the impugned order passed by the court below condoning the delay is erroneous and therefore sought to set aside the impugned order.

Per contra, Sri Hemalekha Kulkarni, learned Counsel for respondent sought to justify the impugned order.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is relevant to state at this stage, that during the pendency of the proceedings before this Court, it is stated by the learned Counsel for the respondent that the respondent has deposited a sum of Rs. 4,50,000/- to show his bona fides. It is an admitted fact that the petitioner herein filed suit for recovery of Rs. 9,91,122=95 with future interest against the respondent-defendant alleging that he respondent had screened some pictures in the petitioner''s theater and thereby the respondent owed money to the petitioners and inspite of notice he did not make payment. Therefore, the petitioner filed the suit for recovery of money. The defendant though appeared through Counsel, he did not file any written statement and no defence evidence was led and ultimately the suit came to be decreed on 30.5.2005. According to the learned Counsel for the petitioner though the defendant engaged a Counsel by name Sri S.M. Patil at the first instance and thereafter engaged another Counsel Sri B.M. Chougula, but though the written statement was prepared, but unfortunately the same was not filed within time, thereby they were deprived of the right to contest in the suit. Therefore, the respondent filed miscellaneous petition Misc. No. 14/2006 and there is a delay of 265 days in filing the said Miscellaneous Petition.

The respondent in order to prove his case has also produced Vakalathnama as per Ex. P. 1, written statement as per Ex. P. 2, Order Sheet in O.S. No. 350/2003 as per Ex. P. 3 and notice in E.P. No. 240/2005 as per Ex. P. 4. The court below has recorded a finding that on perusal of the cross-examination of P.W. 1 he has admitted that he has appeared through his counsel and O.S. 350/2003 and he has handed over the relevant case papers to Sri B.M. Chougala, advocate and has signed his vakalat and also signed written statement and the advocate has given him a copy of the written statement. Further he has stated that, he has not enquired about the next adjournments of his case from his Counsel and he had not appeared before Court after signing the written statement. It is also stated that till service of notice in E.P. 240/2005, he had not visited Belgaum to enquire about the case. He has further stated that he had enquired his counsel about the disposal of the case in O.S. No. 350/2003, but his counsel was saying that he will look after the matter. He has denied that relationship with B.M. Chougala, advocate, is in cordial terms and also denied that due to his fault, there is delay in filing the present petition and there is no fault on the part of the counsel. The trial court recorded a finding that, on perusal of the order sheet Ex. P. 3, it appears that no vakalatnama was filed by Sri B.M. Chougala, advocate, on behalf of the defendant and no written statement is filed before Court in O.S. 350/2003 and also the order sheet disclose that he was represented by Sri S.M. Patil, advocate. So when the defendant has got prepared written statement from his counsel and he has changed his advocate, it appears that he was interested in prosecuting the matter. The Trial Court considering the decision of this Court in the case of Sri. Lakshmana Dasappa Since lunatic represented by his Next friend G. Ganesh Vs. Sri. M. Manju, (2010) 2 KCCR 1114 , has held that liberal approach should be given in condoning the delay. Accordingly, considering the entire material on record, the trial court has condoned the delay of 265 days in filing.

The Hon''ble Supreme Court considering the provisions of Section 5 of the Limitation Act in the case of Dhiraj Sing vs. State of Haryana, reported in (2014) 14 SCC 127 , by following the earlier judgment of the Hon''ble supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 , has held as under:

"(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) ''Every day''s delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

Admittedly, in the present case the suit filed for recovery of Rs. 9,91,122.95 and the parties should be given full opportunity to substantiate their rights, since money transactions is involved in the present case. Ultimately the Court has to decide the case on merits based on the oral and documentary evidence on record. Mere condoning the delay does not amount to allowing the petition itself. Therefore, considering the facts and circumstances of the case, the impugned order passed by the Trial Court condoning the delay of 265 days in filing the miscellaneous petition is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order.

Accordingly, CRP is dismissed. The Trial Court is directed to dispose of the Misc. No. 14/2006 as expeditiously in accordance with law.