Yanaimal Thottam Trust vs B. Lakshmanan and B. Jayaraman

K. Raviraja Pandian, J.—In both these revisions, the petitioner questioned the correctness of the order passed by the lower appellate Judge

in C.R.P. No. 13 of 2005 and the trial Judge in C.R.P. No. 14 of 2005 condoning the delay of 165 days in former case and 972 days in the latter

case, in seeking to set aside the ex parte order. However, in C.R.P. No. 13 of 2005 the trial Judge, non-suited the respondent for condoning the

delay of 165 days on the ground that he was not satisfied with the reasons stated for condoning the delay to set aside the ex-parte decree.

However, the respondent herein took the matter on appeal in C.M.A. 1 of 2004 before the Subordinate Judge, who reversed the order on the

ground that the respondent herein has to be given an opportunity to contest the case on merits. That order is put in issue before this Court on the

ground that an appeal against the order dismissing the application to condone the delay is not maintainable before the Subordinate Judge, if at all

only a revision would lie before this Court. However, on merits also it was contended that the learned lower appellate Judge has misdirected

himself in accepting the reason for the delay.

In respect of C.R.P. No. 14 of 2005, learned counsel for the petitioner raised the second contention alone and the first contention is not raised

as there is no chance for raising the same as the I.A. itself was allowed in the first instance.

I heard Mr. Raghunathan, learned counsel appearing for the petitioner and Mr. V. Bharathidasan, learned counsel appearing for the

respondents.

Though the learned counsel appearing for the petitioner very strenuously contended that the affidavit filed in support of the application to

condone the delay is devoid of any merit as it does not contain any reason whatsoever, I have gone through the affidavit and counter affidavit.

The power to be exercised u/s 5 of the Limitation Act is a discretionary exercise that is if the trial Court is satisfied that there is sufficient cause

that is enough to condone the delay. That was the reason given by the courts below that the party should be given an opportunity to meet the case

on merits instead of denying the valuable right on technicalities. The trial Court has exercised the jurisdiction in favour of the respondent to meet the

case on merits. It is very well settled that when technicalities and substantial justice are pitted against each other, law and courts would always be in

favour of the substantial justice rather than technicalities. That was the right attitude taken by the trial Judge in this case. Hence I am not able to

countenance the argument of the learned counsel for the petitioner to allow the Civil Revision Petitions. But at the same time, the inconvenience

caused to the petitioner has to be compensated. In the former case the lower appellate Judge has ordered Rs. 500/- and in the latter case the trial

Judge has ordered a sum of Rs. 3000/- . That has been stated to have been paid. In order to give another chance to contest the case on merits, the

respondents are hereby directed to pay a sum of Rs. 1000/- each to the petitioner, which has to be paid before the trial Court within a period of

two weeks from the date of receipt of copy of this order.

With these observations, the Civil Revision Petitions are disposed of. Consequently, the connected C.M.Ps are closed. No costs.