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2008 Supreme(Mad) 295
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.J. MUKHOPADHAYA & THE HONOURABLE MR. JUSTICE M. VENUGOPAL
M/s. Indira Iron and Steel Works, Represented by its partners: Saraswathi Devi Gupta & Others
Versus
Age Impex International Inc., & Others
O.S.A.No.352 of 2001 and C.M.P.Nos.2188 and 1632 of 2007
Decided on : 29-01-2008
For the Appellants :S.V. Jayaraman Senior Counsel for K. Mani, Advocate.
For the Respondents:R4, V. Bhiman, R6, M/s. Sudarsana Sundar, Advocates, R1 to 3 and R5, 7 to 10, No appearance.
The main legal point established in the judgment is that a pragmatic approach should be adopted to deliver substantial justice, and technical considerations should not override the merits of a case.
Headnote:
Default - Restoration of Suit - Civil Procedure Code - O.9, R.3, O.6 R.1 and O.4, R.2 - Delhi High Court Rules and Orders Vol.I Chap.1(J) - [O.9, R.3, O.6 R.1, O.4, R.2] - The court discussed the provisions of Order 9, Rule 3 of the Civil Procedure Code and the Delhi High Court Rules and Orders Vol.I Chap.1(J) in the context of setting aside the dismissal of a suit for non-appearance. The court emphasized the need for a pragmatic approach to deliver substantial justice, overriding technical considerations, and held that a meritorious matter should not be thrown out at the threshold.
Fact of the Case:
The appellants filed a suit in 1986, which was dismissed for default. They subsequently filed an application to set aside the dismissal, citing reasons for their non-appearance. The Single Judge dismissed the application due to a delay of nearly 8 years without an application to condone the delay.
Finding of the Court:
The Court found that the appellants had sufficient cause for restoration of the suit, as they were not at fault for the delay and had taken steps promptly upon learning of the dismissal.
Issues: The main issue was whether the appellants had valid and sufficient cause to restore the suit, considering the delay in filing the application to set aside the dismissal.
Ratio Decidendi: The Court held that a pragmatic approach should be taken to deliver substantial justice, and technical considerations should not override the merits of the case. It emphasized the need to prevent injustice on technical grounds.
Final Decision: The Court set aside the order of the Single Judge and allowed the restoration of the suit in favor of the appellants.
M. Venugopal, J.
The O.S.A.No.352 of 2001 is filed by the appellants/plaintiffs/applicants as against the orders passed by the learned Single Judge on 30.06.2000 in dismissing the application No.2485 of 1998 in C.S.No.140 of 1986.
2.The appellants/plaintiffs/applicants filed C.S.No.140 of 1986 praying for a judgment and decree passed against all the defendants or such of the defendants as this Court finds liable to pay Rs.15,92,414.88 to the plaintiff with interest at 20% per annum from now till date of decree and thereafter at 6% from the date of decree till the date of realisation and for costs.
3.The suit in C.S.No.140 of 1986 filed by the appellants/plaintiffs/applicants was dismissed for default, on account of the appellants/plaintiffs not taking any steps.
4.The appellants/plaintiffs filed Application No.2485 of 1998 in C.S.No.140 of 1986 praying to set aside the order of dismissal of the C.S.No.140 of 1986 on 11. 1997 and the same was dismissed by this Court on 30.06.2000.
5.Aggrieved against the orders passed by the learned Single Judge in Application No.2485 of 1998 in C.S.No.140 of 1986 dated 30.06.2000, the appellants/plaintiffs/applicants have preferred the present OSA.
6.The learned counsel for the appellants submits that the learned Single Judge has failed to appreciate the peculiar facts and circumstances leading to the nonappearance of the counsel for the appellants/plaintiffs/ applicants and that their nonappearance was due to circumstances beyond control of the appellants and resultantly, no default can be attributed to the appellants/plaintiffs/applicants and that the appellants entrusted the matter to a competent counsel and that the change of counsel was necessitated due to the circumstance beyond the control of the appellants and this was not noticed by the learned Single Judge and the appellants because of the advise that change of counsel needed a NOC from previous counsels and the appellants/plaintiffs/ applicants were unaware of the procedural technicalities and formalities and these facts were not taken into consideration by the learned Single Judge and on coming to know on 28.06.1998 that the suit was dismissed, the appellants/plaintiffs/applicants took steps to file the application for setting aside the exparte order which was not noticed by the learned Single Judge and therefore, prays for allowing the appeal.
7.On going through the orders passed by the learned Single Judge in Application No.2485 of 1998 in C.S.No.140 of 1986 dated 30.06.2000, we find that the learned Single Judge has observed that the suit was pending since 1986 and even after 11 years steps were not taken by the appellants /plaintiffs/applicants in regard to D.1 to D.4 and therefore, there was callousness and negligence on the part of the appellants/plaintiffs in prosecuting the proceedings.
8.The main reason weighed with the learned Single Judge in dismissing the Application No.2485 of 1998 in C.S.No.140 of 1986 on 30.06.2000 is that the said application was filed with a delay of nearly 8 years without an application to condone the delay and that the question of knowledge was immaterial because the plaintiffs were already represented by a counsel and the case was pending for nearly 11 years and that the appellants/plaintiffs/applicants failed to establish any valid and sufficient cause to restore the suit and in the absence of any application to condone the delay, the present application is not maintainable under law.
9.The learned counsel for the appellants/plaintiffs/ applicants contends that if the mistake is not attributed to a litigant, the same can be condoned and in support of his contention placed reliance on AIR 1991 Allahabad 317 (U.P. State Road Transport Corporation V. Kedar Singh and others).
10.He also placed reliance on 1998 (II) CTC 533 (N.Balakrishnan V. M.Krishnamurthy) wherein it is observed by Honble Supreme Court that condonation of delay is matter of discretion of Court and the length of delay i
