The Congregation of the Sister of St. Annes, Tiruchirappalli vs Chellaih

Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the fair and decretal order dated 05.07.2010 passed in I.A. No. 149 of 2010 in O.S. No. 61 of 1999 on the file of the learned Principal District Munsif cum Judicial Magistrate, Lalgudi. The germane facts which are absolutely necessary for the disposal of this Civil Revision Petition, would run thus:

(i) The respondent/plaintiff filed the suit in O.S. No. 61 of 1999 seeking the following reliefs:

(a) declare the easementary right of the Plaintiff in the B Schedule property for his ingress and eggress and to take his cattle, cart and vehicles to the A schedule property; and as a consequential relief prevent the Defendants, their men and agents by means of a Permanent injunction from in any way interfering with the Plaintiff''s above right;

(b) direct the Defendants to remove the foundation wall or any obstruction made in the B Schedule property by means of a mandatory injunction and if not order for the same removed by the process of this Honourable Court, at the costs of the Defendants;

(ii) The written statement was filed by the revision petitioner/first defendant. However, on three occasions, exparte decree was passed in favour of the plaintiff. On the earlier two occasions, the lower Court on the prayer of the first defendant, had set aside the exparte decree. However, when the application u/s 5 of the Limitation Act, was filed to get the delay of 210 days condoned in filing the third application under Order 9 Rule 13 of the CPC to get the exparte decree set aside, the said application, was dismissed.

Being aggrieved by and dissatisfied with the same, this Civil Revision Petition has been filed on various grounds.

The learned Counsel for the revision petitioner would put forth and set forth his arguments to the effect that the lower Court without considering the genuineness of the reasons found set out in the affidavit accompanying the petition, simply dismissed the petition for getting the delay of 210 days condoned.

According to the learned Counsel for the revision petitioner, there was some change in the internal administration of the first defendant and that alone resulted in not pursuing the Court proceedings.

Per contra, in a bid to torpedo and pulverise the arguments as put forth on the side of the revision petitioners, the learned Counsel for the respondent/plaintiff would pyramid his submissions, which could pithily and precisely be set out thus:

No valid reasons are found set out in the affidavit accompanying the petition. In fact, such sort of vague reasons should not be the basis for condoning the delay. Accordingly, he would pray for the dismissal of this Civil Revision Petition.

The point for consideration is as to whether there is any perversity in the order passed by the lower Court? The Point:

A mere running of the eye over the records would exemplify and demonstrate that the suit itself is for asserting the plaintiff''s right to pass and re-pass through the suit property concerned.

Whereas the learned Counsel for the revision petitioner/first defendant, would submit that the property over which the plaintiff is claiming right of ingress and egress, is the exclusive property of the revision petitioner/first defendant and only based on the Village Administrative Officer''s Certificate, the suit was sought to be filed, which was totally untenable.

De hors the merits involved in the matter, I would like to point out that since the revision petitioner/first defendant is a body namely, the Congregation of the Sister of St. Annes, Tiruchirappalli, and that too, there were changes in the internal administration which disabled them from following the litigation, I am of the view that one more opportunity could be given to them, however, subject to payment of heavy cost by them to the plaintiff.

My mind is redolent of the following decision of the Honourable Apex Court in Balwant Singh (Dead) Vs. Jagdish Singh and Others, . Certain excerpts from it would run thus:

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 party concerned. 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 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.

The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie 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 reflects 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 and Others Vs. Kameshwar Prasad Singh and Another, 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.

In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd.,

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 Krishna v. Chathappan, ILR (1890) 13 Mad 269:

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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;

In Union of India v. Tata Yodogawa Ltd., (1988) 38 ELT 739 (SC) this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the special leave petition, the application for condonation of delay was dismissed.

Similarly, in Collector of Central Excise, Madras Vs. A. Md. Bilal and Co., , the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22 Rule 9 CPC have been the subject-matter of judicial scrutiny for considerable time now. Sometimes the courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straitjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case.

It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.

Furthermore, it is also a well-settled canon of interpretative jurisprudence hat the Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the learned counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.

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 Edn., 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 Edn., 2005)

A mere running of the eye over the aforesaid precedent would demonstrate and display that in appropriate matters, the delay could be condoned in the interest of audi alteram partem. The point is answered accordingly.

On balance, I.A. No. 149 of 2010 in O.S. No. 61 of 1999 on the file of the learned Principal District Munsif cum Judicial Magistrate, Lalgudi, is allowed and the delay of 210 days in filing the application to set aside the exparte decree, is condoned, subject to the condition that the revision petitioner/first defendant shall pay a sum of Rs. 7,000/- (Rupees Seven Thousand only) to the respondent/plaintiff on or before 30.11.2012. Whereupon, the lower Court is expected to number the application filed under Order 9 Rule 13 of the CPC and deal with the same; in the event of the lower Court allowing the application filed under Order 9 Rule 13 of the CPC and setting aside the exparte decree, the lower Court shall dispose of the suit itself within a period of one month therefrom, as the learned Counsel for the revision petitioner/first defendant assured that his client would co-operate for the earlier disposal of the matter by the lower Court. In the result, this Civil Revision Petition is disposed of as above. Consequently, the connected Miscellaneous Petition is closed. No costs.