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HIGH COURT OF JUDICATURE AT MADRAS
B. RAJENDRAN, J.
R. Manikandan & Others
Versus
B.N. Sridharamoorthy & Another
C.R.P. (NPD) No. 2975 of 2013 & M.P. No. 1 of 2013
Decided on: 25-11-2013
Delay Condonation - Specific Performance Suit - Limitation Act - [Section 5 of the Limitation Act] - [Vedabai vs. Shantaram Baburao Patil AIR 1998 SC 3222, Esha Bhattacharjee s. Mg. Committee of Raghunathpur Nafar) 2013 5 CTC 547, N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123, Shantilal Gulabchand Mutha vs. Tata Engineering and Locomotive Company Limited and others) 2013 4 SCC 396, Ram Nath Sao @ Ram Nath Sahu and others vs. Gobardhan Sao and others) 2002 3 SCC 195, Meenakshisundaram Textiles, rep. by its Managing Director vs. Valliammal Textiles Limited, Aandipalayam, Mangalam Road, Tirupur) 2011 3 CTC 168, Virgo Industries (Eng) Pvt Ltd., vs. Venturetech Solutions Pvt Ltd) 2012 5 CTC 339 - The court allowed the Civil Revision Petition, set aside the order dated 26.07.2013, and allowed I.A. No. 417 of 2013 in O.S. No. 13 of 2012 under Section 5 of the Limitation Act to condone the delay of 78 days in filing an application to set aside the exparte decree.
Fact of the Case:
The defendants filed a Civil Revision petition challenging the order dismissing their application to condone the delay in filing an application to set aside an exparte decree. The suit was filed for specific performance of an agreement, and the exparte decree was passed due to non-appearance of the defendants. The defendants argued that the delay was due to their advocate's failure to inform them about the case status and the necessity to file a counter and written statement.
Finding of the Court:
The court found that the delay in filing the application to set aside the exparte decree was not properly explained. The defendants engaged multiple advocates and failed to file a written statement in time. The court held that the reasons assigned for the delay were not sufficient and that the defendants had adopted delaying tactics to protract the proceedings.
Issues: The main issue was whether the delay in filing the application to set aside the exparte decree had been properly explained by the defendants.
Ratio Decidendi: The court emphasized the importance of a liberal, pragmatic, justice-oriented approach while dealing with applications for condonation of delay. It considered the conduct, behavior, and attitude of the party in determining whether the delay should be condoned. The court also highlighted the distinction between inordinate delay and a delay of short duration, stating that the consideration of prejudice to the other side would be relevant in the former case but not in the latter.
Final Decision: The Civil Revision Petition was allowed, the order dated 26.07.2013 was set aside, and I.A. No. 417 of 2013 in O.S. No. 13 of 2012 was allowed. The court's observations were meant only for the purpose of disposal of the Civil Revision Petition and need not be taken into account for the disposal of the suit.
1. The revision petitioners have come forward with this Civil Revision petition challenging the order dated 26.07.2013 passed by the court below, by which the application filed by them to condone the delay of 78 days in filing an application to set aside the exparte decree dated 10.01.2013, was dismissed.
2. The respondents herein, as plaintiffs, have filed the suit in O.S. No. 13 of 2012 on the file of the District Judge, Salem for specific performance of the agreement dated 09.01.2011 and for a consequential injunction restraining the defendants revision petitioners herein from alienating or encumbering the suit property to third parties. The suit was decreed exparte due to non-appearance of the defendants/revision petitioners herein. To set aside the exparte decree dated 10.01.2013, the defendants/revision petitioners herein have filed I.A. No. 417 of 2013 in O.S. No. 13 of 2012 under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the exparte decree dated 10.01.2013. The court below, on considering the submissions made by both sides dismissed the application and refused to condone the delay, which resulted in the filing of the present Civil Revision Petition by the defendants.
3. The learned Senior counsel appearing for the defendants/revision petitioners would contend that the suit was filed for specific performance of the agreement dated 09.01.2011. According to the learned senior counsel for the revision petitioners, the very agreement dated 09.01.2011 itself is a sham and nominal document created for the purpose of filing the suit and therefore it will not bind the revision petitioners in any manner. In fact, even prior to the filing of the suit, the defendants/revision petitioners herein have sent a notice through their lawyer on 09.03.2011, calling upon the plaintiffs/respondents herein to cancel the sale agreement dated 09.01.2011 for which the plaintiffs/ respondents herein have sent a reply notice dated 17.03.2011 stating that they are not willing to cancel the agreement of sale. Thereafter, the plaintiffs/respondents have filed the suit for specific performance of the agreement dated 09.01.2011. On receipt of summons in the suit, the defendants/revision petitioners have engaged an advocate and entered appearance, but did not file counter or written statement in time. With the result, the suit was posted for recording exparte evidence on 10.01.2013 and on the same day, the suit was decreed exparte. The learned senior counsel for the defendants/revision petitioners would mainly contend that the counsel engaged by the defendants/revision petitioners did not inform them about the status of the case or the necessity to file a counter and written statement. The defendants/revision petitioners came to know about the exparte decree only on receipt of notice in R.E.P. No. 95 of 2013 filed by the plaintiffs/ respondents herein. Immediately, the defendants/revision petitioners have contacted their counsel on record, his counsel got angry with them and handed over the case bundle on 03.04.2013. Subsequently, the defendants/revision petitioners have engaged another counsel, who, after verifying the court records, filed the present application for condonation of delay. Thus, according to the learned senior counsel for the defendants/revision petitioners, the delay of 78 days in filing the application to set aside the exparte decree dated 10.01.2013 is neither wilful nor wanton but for the reasons mentioned above. The defendants/revision petitioners must be given a chance for defending the suit on merits. Unless the defendants/revision petitioners are given an opportunity to defend the suit on merits, they will be highly prejudiced. The court below, without considering the reasons assigned for the delay has erroneously dismissed the application by simply referring to the fact that the defendants/ revision petitioners have engaged an advocate to defend the suit and therefore the
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