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2011 Supreme(Mad) 2298
High Court of Judicature at Madras
S. TAMILVANAN
Babulal Surana & Another
Versus
Varalakshmi
Civil Revision Petition (NPD) Nos.667 & 669 of 2010 & M.P.Nos. 1 and 1 of 2010
Decided On: 25-04-2011
For the Petitioners:S. Vijay Anand, Advocate.
For the Respondent:A. Sriram, Advocate.
The duty of the party to satisfactorily explain the delay and the concept of substantial justice are central legal principles established in the judgment.
Headnote:
Limitation Act - Civil Procedure - [Section 5 of Limitation Act] - [AIR 1987 SC 1353, 1998 (II) CTC 533, 1972 (1) SCC 366] - The court dismissed the civil revision petitions challenging the delay in restoring an exparte decree, emphasizing the duty of the party to satisfactorily explain the delay and the concept of substantial justice. The court held that a liberal approach in this case would lead to failure of substantial justice, preventing the abuse of process of law and meeting the ends of justice.
Fact of the Case:
The petitioners, defendants 9 and 10, filed civil revision petitions challenging the delay in restoring an exparte decree in a suit for partition of property. The suit was filed in 1994, and the exparte decree was passed in 2007. The petitioners claimed to have purchased the property after the suit was filed.
Finding of the Court:
The court found that the petitioners failed to satisfactorily explain the delay of 711 days in filing an application to restore the exparte decree. The court held that a liberal approach in this case would lead to failure of substantial justice, preventing the abuse of process of law and meeting the ends of justice.
Issues: Delay in restoring an exparte decree, application of Section 5 of Limitation Act, duty of the party to explain the delay, concept of substantial justice.
Ratio Decidendi: The court emphasized the duty of the party to satisfactorily explain the delay and the concept of substantial justice. It held that a liberal approach in this case would lead to failure of substantial justice, preventing the abuse of process of law and meeting the ends of justice.
Final Decision: The civil revision petitions were dismissed, preventing the abuse of process of law and meeting the ends of justice.
1. Heard both the learned counsel appearing for the petitioners as well as the respondent.
2. C.R.P.(NPD).No.667 of 2010 is preferred by the petitioners, who are the defendants 9 and 10 in the suit in O.S.No.2181 of 1996 on the file of the Court below. The revision has been filed, challenging the order, dated 10.09.2009 made in I.A.No.16 of 2009 in I.A.No.11 of 2007 in O.S.No.2181 of 1996 on the file of the Additional District Court / Fast Track Court No.I, Chennai. C.R.P (NPD).No.669 of 2010 is preferred by the petitioners, challenging the order, dated 10.09.2009 made in I.A.No.15 of 2009 in I.A.No.11 of 2007 in the aforesaid suit on the file of the Court below.
3. It is seen that the Interlocutory Application in I.A.No.15 of 2009 was filed under Section 5 of Limitation Act to condone the delay of 711 days to restore another Interlocutory Application in I.A.No.11 of 2007, that was dismissed for default on 16.07.2007 by the Court below. The Interlocutory Application in I.A.No.11 of 2007 was filed by the petitioners, originally on 24.03.2007 to set aside an exparte decree, dated 22.03.2007 passed in the suit in O.S.No.2181 of 1996 on the file of the Court below.
4. It is seen that the suit in O.S.No.2181 of 1996 was filed by the respondent herein as plaintiff in the suit against the petitioners herein and 8 other persons, seeking partition of 1/6th share in the plaint schedule mentioned property and other consequential reliefs.
5. Learned counsel appearing for the petitioners submitted that the petitioners herein who were arrayed as defendants 9 and 10 had purchased the property on 12.09.1996 from the defendants 1 to 7. However, it is brought to the notice of this Court that the suit was filed in the year 1994, therefore, it is made clear that the alleged sale transaction took place subsequent to the filing of the suit. Since all the defendants were set exparte, after service of summons, the Court below passed a preliminary decree of partition on 23.03.2007. It is seen that the respondent had examined herself as P.W.1, apart from marking Exs.P.1 to P.6 before the Court below to establish her claim of 1/6th share in the property.
6. Learned counsel appearing for the respondent submitted that the respondent is a senior citizen, aged about 72 years and that the petitioners alleged to be subsequent purchasers, cannot claim any right, more than the right that was available to their vendor. Even the defendants 1 to 7 said to have been executed the sale deed, remained absent before the Court below and they have not filed any petition to set aside the exparte decree, in spite of service of summons.
7. It is seen that the petitioners herein as D9 and D10 filed an application on 24.03.2007 under Order 9 Rule 9 CPC to set aside the exparte decree, dated 22.03.2007, however, that was dismissed for default. Subsequent to that the petitioners filed another Interlocutory Application in I.A.No.15 of 2009 under Section 5 of Limitation Act to condone the inordinate delay of 711 days, in filing an application to restore the Interlocutory Application in I.A.No.11 of 2007, that was dismissed for default on 16.07.2007.
8. Learned counsel appearing for the petitioners submitted that the Court has to have liberal approach in deciding a petition filed under Section 5 of Limitation Act. In support of his contention, the learned counsel relied on the following decision :
1. Collector, Land Acquisition, Anantnag vs. Katiji, AIR 1987 SC 1353
2. Balakrishnan, N vs. M.Krishnamurthy, 1998 (II) CTC 533
3. Ram Nath Sao @ Ram Nath Sahu vs. Gobardhan Sao, 2002 (1) CTC 769
4. State of Nagaland vs. Lipok AO, 2005 (3) SCC 752
5. Vijaya vs. M.Selvaraj, 2010-3-LW 658
6. P.Deivsaigamani vs. Asha Siraj, 2010-3-LW 643
9. In Collector, Land Acquisition, Anantnag vs. Katiji, reported in AIR 1987 SC 1353, the Hon'ble Supreme Court has held as follows :
"3. The legislature has conferred the power to condone delay by enacting S.5 of the Indian Limitation Act of 1963
