1998 Supreme(SC) 939

1998(7) Supreme 209
Supreme Court of India
(From Madras High Court)
S. Saghir Ahmad & K.T. Thomas, JJ.
N. Balakrishnan -Appellant
versus
M. Krishnamurthy -Respondent
Civil Appeal Nos. 4575-76 of 1998
(@ SLP (Civil) No. 8712-13 of 1998)
Decided on 3-9-1998
Counsel for the Parties :
For the Appellant : Krishnaswami, Advocate.
For the Respondent : Gaurav Jain and Ms. Abha Jain, Advocates.

Important Point
Once the trial Court accepts the expla­nation for the delay in filing petition to set aside exparte order as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of dis­cretion was on wholly untenable gro­unds or arbi­trary or perverse.

Headnote:Code of Civil Procedure, 1908 -Order 9 Rule 13-Limitation Act -Sec­tion 5-Exparte decree-Set­ting aside of-Condonation of delay -Appli­cation to set aside exparte decree dismissed for default-Peti­tion to set aside that order after a lapse of 883 days-Counsel did not purse petition allowed petition to be dismissed for default and appellant came to know on receipt of execution warrant-Counsel in fact left practice and joined service of a company-Appellant filed consumer complaint against counsel and secured compensation of Rs. 50,000 -Trial Court condoned delay accepting explanation for delay-High Court held that delay not properly explained on ground of absence of diligence on part of appellant and he should have been more vigilant by visiting advocate at short intervals-Whether correct-No-Appel­lants conduct did not warrant on the whole to casti­gate him as irresponsible litigant once trial Court accepts explana­tion as sufficient superior Court should not disturb such finding-Trial Court’s order restored-Respondent awarded Rs. 10,000/- as compensation.

       Held : Appellant’s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. (Para 6)

       It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the expla­nation as sufficient it is the result of positive exercise of discre­tion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discre­tion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. The reason for such a different stance is thus: The primary func­tion of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. (Paras 7 & 8)

       Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and conse­quential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result in fore­closing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. (Paras 9 & 10)

       Resultantly held : In this case explanation for the delay set up by the appellant was found satisfactory to the trial Court in the exercise of its discre­tion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delin­quent advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that appellant shall pay a sum of Rupees Ten thousand to the respondent (or deposit it in this court) within one month from this date. (Para 12)