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High Court of Judicature at Madras
The Honourable Mr. Justice S.S. Subramani
Arumuga Velar
Versus
Arulmigu Kuzhavar Street Mariamman Koil, through its Trustee Mariappan Velar and others
C.R.P.No.3645 of 1999 and C.M.P.No.20402 of 1999
Decided On : 17-12-1999
Restoration applications are governed by Section 5 of the Limitation Act. The court cited the Supreme Court's decision in N.Balakrishanan v. M. Krishnamurthy, which held that delay in filing a restoration application should be condoned unless there is evidence of mala fides or dilatory tactics. The court emphasized that the words 'sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice. The court also held that minor contradictions in the evidence should not be considered significant if the evidence was taken many years after the filing of the original application.
Fact of the Case:
First defendant in O.S.No.265 of 1977 filed a revision petition challenging the lower court's order allowing the restoration of the plaint. The plaintiff had filed a suit for declaration of ownership of a property belonging to a temple and for injunction. The suit was dismissed for default, but the plaintiff filed a restoration application. The trial court dismissed the restoration application, but the lower appellate court allowed it. The revision petitioner argued that the lower court's exercise of discretion was incorrect. The Supreme Court's decision in N.Balakrishanan v. M. Krishnamurthy was cited, which held that delay in filing a restoration application should be condoned unless there is evidence of mala fides or dilatory tactics. The lower appellate court found that sufficient cause was made out for restoration and the evidence of witnesses was believed. The revision petition was dismissed.
Finding of the Court:
The lower appellate court's exercise of discretion in allowing the restoration application was upheld by the revision court. The court considered the two inconsistent versions in the restoration applications and found that the lower court had considered both affidavits and made a correct decision. The court also cited the Supreme Court's decision in N.Balakrishanan v. M. Krishnamurthy, which emphasized that delay in filing a restoration application should be condoned unless there is evidence of mala fides or dilatory tactics. The court held that the lower appellate court was entitled to reconsider the question of restoration and found that sufficient cause was made out. The court also noted that there was no question of limitation as the restoration application was filed within one month.
Ratio Decidendi: The court held that delay in filing a restoration application should be condoned unless there is evidence of mala fides or dilatory tactics. The court emphasized that the words 'sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice. The court also held that minor contradictions in the evidence should not be considered significant if the evidence was taken many years after the filing of the original application.
Result: The revision petition was dismissed and the lower appellate court's order allowing the restoration of the plaint was upheld. No costs were awarded.
1. First defendant in O.S.No.265 of 1977 on the file of Principal District Munsif Court. Ambasamudram is the revision petitioner.
2. Plaintiff herein filed a suit for declaration that the scheduled property belongs to first plaintiff temple and for consequential injunction restraining defendant, and his agents from in any way interfering with his possession and for mandatory injunction.
3. Even though suit was filed in 1977, it came for trial only in the year 1984. On 21. 1984, the suit was dismissed for default on the ground that Plaintiffs’ counsel represented that he has no instructions. Within 30 days plaintiff filed I.A.No.771 of 1984 to have the same restored. The application was filed on 20.2.1984. For years together application was not taken up by court below even though an objection was filed by petitioner as early as on 27. 1985. Eleven years thereafter, since no action was taken on the restoration application, another restoration application was filed as I.A. No.482 of 1995 by plaintiffs. Subsequently, I.A.771 of 1984 filed earlier came to the notice of the Court. At that time petitioner’s counsel endorsed that in view of the pendency of earlier application, present application LA.No.482 of 1995 is not pressed and the same was dismissed in view of that endorsement.
4. Evidence was taken in I.A.No. 771 of 1984. After considering the same, trial court dismissed that application on the ground that no sufficient cause is made out. Plaintiff preferred C.M.A.No.7 of 1996 on the file of Subordinate Court. Ambasamudram, By the impugned order lower court allowed it and held that sufficient cause is made out for restoring the plaint. The same is challenged in this revision.
5. After hearing counsel for petitioner, I do not think that any ground is made out for interference in this revision under Section 115 of CPC.
6. Learned counsel for petitioner submitted that the reasons mentioned in I.A.771 of 1984 and I.A.No. 482 of 1995 which was dismissed as not pressed two inconsistent versions are made and consequently the discretion exercised by lower court is not correct. The restoration application ought to have been dismissed.
7. While exercising discretion if lower court expressed opinion on the same that also will have to be taken into consideration by this Court. Lower court has held that only because of fault of the court, earlier restoration application could not be posted and for more than 11 years plaintiffs were put to great agony. Only because of that agony, they have filed I.A.No.482 of 1995 and especially when the same has not been pressed, it follows that plaintiffs are not pursuing the same. In I.A.No.771 of 1984, the reason stated is - that the deponent a wife was laid up in the hospital between 20.1.1984 till 12. 1984 and he had to attend her. The case was posted on 21. 1984 and he could not attend the court on that date. But when I.A. 482 of 1995 was filed, the reason stated was entirely different. It is said that there is some inconsistency between two affidavits.
8. When lower court has considered both the affidavits and found that sufficient ground is made out for restoration, it cannot be said that the order was passed by lower appellate court without considering the materials.
9. In the recent decision of Honourable Supreme Court reported in N.Balakrishanan v. M. Krishnamurthy, 1998 AIR SCW 3139, their Lordships have considered now section 5 of the Limitation Act will have to be interpreted. In this case, respondents cannot be said as negligent. Restoration application was filed within 30 days. But the Court misplaced the papers and only after 11 years the same has been traced out. Thereafter, respondents had to file another application stating some reason for restoration. In fact that application itself was not necessary. Merely because some statement is made in that application that cannot be a ground to disbelieve the statement in the earlier affidavit. Merely because another state
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