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2013 Supreme(Mad) 2629
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.RAVICHANDRABAABU, J.
Palanivel - Petitioner
vs
1. The Government of Tamilnadu
2. The Principal, Kolanchiappar Government Arts College
3. The Divisional Engineer, Public Works Department
4. The Executive Engineer, Public Works Department - Respondents
C.R.P. (NPD) No.2115 of 2012
Decided On : 26.07.2013
Advocate Appeared:
For Petitioner: Mr.P.Mani
For Respondents:Mr.S.Pattabiraman Government Advocate
The main legal point established in the judgment is that the power to condone delay under Section 5 of the Limitation Act is discretionary but must be exercised judicially, and sufficient cause must be shown for condoning the delay.
Headnote:
Delay Condonation - Civil Procedure - Limitation Act - [Section 5 of the Limitation Act] - [Summary of Acts and Sections: The court discussed the provisions of Section 5 of the Limitation Act and emphasized the requirement of showing sufficient cause for condoning the delay. The court also referred to legal principles established in the cases of AMALENDU KUMAR BERA AND OTHERS v. STATE OF WEST BENGAL and MANIBEN DEVRAJ SHAH v. MUNICIPAL CORPORATION OF BRIHAN, MUMBAI, highlighting that delay in cases involving the State and its agencies/instrumentalities cannot be mechanically condoned without sufficient cause.]
Fact of the Case:
The plaintiff filed a suit seeking declaration of easementary right and mandatory injunction. An exparte decree was passed, and the defendants filed a petition to set aside the exparte decree after a delay of 1329 days. The court below allowed the application, but the plaintiff filed a civil revision petition aggrieved by the order.
Finding of the Court:
The court found that the delay condonation by the lower court was not justified as the defendants had knowledge of the suit and its pendency. The court held that the reasons provided by the defendants for the delay were not sufficient and that the lower court erred in allowing the application solely to give the defendants an opportunity to contest the matter on merits.
Issues: The main issue was whether the delay of 1329 days in filing the petition to set aside the exparte decree should be condoned under Section 5 of the Limitation Act.
Ratio Decidendi: The court held that the power to condone delay is discretionary but must be exercised judicially by considering the facts and circumstances as well as the reasons for the delay. The court emphasized the requirement of showing sufficient cause for condoning the delay and referred to legal principles established in relevant case laws.
Final Decision: The court set aside the order of the lower court and allowed the civil revision petition filed by the plaintiff.
This civil revision petition is filed by the plaintiff in O.S.No.674 of 2004 on the file of the I Additional District Munsif, Virudhachalam. He is aggrieved against an order passed under section 5 of the Limitation Act in condoning the delay of 1329 days in filing petition to set aside the exparte decree. The respondents herein as the defendants filed the said application in I.A.No.47/2012. The court below allowed the application and thus, the present civil revision petition is filed by the petitioner/plaintiff.
2. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.
3. The petitioner filed the said suit seeking for declaration of his easementary right and also for mandatory injunction for removal of the wall put up in the suit property. In the said suit, an exparte decree came to be passed on 11.03.2008. Consequently, the petitioner filed an execution petition in E.P.No.130 of 2010 seeking to execute the said exparte decree. In the said E.P., notice was served on the defendants on 27.07.2010. The defendants entered their appearance in the execution proceedings. But, they have not filed any counter. On 29.10.2010, an exparte order came to be passed by the Executing Court. The defendants filed an application to set aside the exparte order and the same was allowed on 15.03.2011. Thereafter, the E.P. was ordered, after contest on 30.01.2012 . On the same day, the defendants filed I.A.No.47/2012 seeking to condone the delay of 1329 days in filing the petition to set aside the exparte decree passed on 11.03.2008. An affidavit was filed in support of the said application wherein it is stated that they were not informed about the exparte decree by their previous Government Advocate and they came to know about such exparte decree only later at the time of filing the said application and based on the advise of the present Government Pleader, they filed the said application under section 5 of the Limitation Act. The court below accepted the said contention and allowed the application subject to payment of cost of Rs.2,500/- to the petitioner herein.
4. Going by the facts and circumstances of the case as well as the dates and events which are not in dispute, I find that the order passed by the court below in condoning the delay of 1329 days is not just and proper and not based on any sufficient cause shown by the defendants.
5. The exparte decree came to be passed on 11.03.2008. It is not the case of the defendants that they were not served with any suit summons and on the other hand, they entered appearance and it is stated that they have also cross-examined in the plaintiff's witnesses. Thus, knowledge of filing of the suit and its pendency was very much available to the defendants. When an exparte decree came to be passed on 11.03.2008 and an execution petition was filed in the year 2010 wherein they have received a notice on 27.07.2010, the defendants have not taken any steps immediately to file set aside petition on the other hand, they had only entered appearance in the execution petition and not filed any counter. Thereafter, the execution petition itself came to be disposed of after nearly two years on 30.01.2012, that too, after contest. Even during these two years period, the defendants have not taken any steps to file a petition to set aside the exparte decree. On the other hand, on the date of disposal of E.P., they woke up and filed the petition under section 5 of the Limitation Act seeking to condone the delay of 1329 days by claiming as if they were not aware of the decree till it was informed by the present Government Pleader. I wonder as to how such contention of the defendants was accepted by the court below to condone the delay.
6. In fact, the court has found at paragraph No.7 of its order that the defendants were served with notice in the execution petition on 27.02.2010 itself. It has also observed that the defendants have to follow up the procee
