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2016 Supreme(Mad) 1899
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DURAISWAMY, J.
Mohanarangan – Petitioner
Vs.
Irshad Ali – Respondent
C.R.P. (NPD) Nos. 2108, 2109 of 2009 & M.P. No. 1 of 2009 & C.M.P. Nos. 10596 to 10598 of 2016
Decided On : 11-07-2016
For the Petitioner: Mr. Ravikumar Paul for M/s. Paul & Paul.
For the Respondent: Mr. A.R.L. Sundaresan Senior Counsel for Mr. K.S. Arumugam.
Sufficient cause must be shown for condonation of delay in setting aside ex-parte decrees
Headnote:
Delay Condonation - Civil Revision Petitions - O.S.No.180 of 2007, O.S.No.181 of 2007 - Section 5 of the Limitation Act
Fact of the Case:
Plaintiff filed suits for permanent injunction, defendant set ex-parte, filed applications to condone delay in setting aside ex-parte decrees, Trial Court condoned delay, plaintiff disputed defendant's reasons for delay, defendant failed to provide sufficient cause for delay, Trial Court's orders set aside
Finding of the Court:
Trial Court's orders condoning delay in setting aside ex-parte decrees set aside
Issues: Condonation of delay in setting aside ex-parte decrees, sufficiency of cause shown for delay
Ratio Decidendi: Unless a party seeking for condonation of delay shows sufficient cause for the delay, the delay should not be condoned
Final Decision: Fair and decreetal orders passed by the Trial Court set aside, Civil Revision Petitions allowed, no costs, connected miscellaneous petitions closed
1. Challenging the fair and final orders passed in I.A.No.354 of 2009 in O.S.No.180 of 2007 and I.A.No.355 of 2009 in O.S.No.181 of 2007 on the file of the District Munsif Court, Tamabaram, the plaintiff has filed the above Civil Revision Petitions.
2. Since the issues involved in both the Civil Revision Petitions are common, by consent of both the parties, both the Civil Revision Petitions are disposed of by this common order.
3. The plaintiff filed the suits in O.S. Nos. 180 and 181 of 2007 for permanent injunction,
4. The defendant failed to appear before the Trial Court. Hence, he was set ex-parte, pursuant to the paper publication ordered by the Trial Court and an ex-parte decree was passed on 13.09.2007.
5. Thereafter, the defendant filed applications in I.A.No.354 of 2009 in O.S.No.180 of 2007 and I.A.No.355 of 2009 in O.S.No.181 of 2007 to condone the delay of 413 days in filing the applications to set aside the ex-parte decrees.
6. In the affidavit filed in support of the applications, the defendant has stated that he came to know about the ex-parte decrees only when the plaintiff along with some henchmen tried to remove the fencing and trespassing into his property on 3.4.2007 and on verification, he came to know that ex-parte decrees were passed against him. Thereafter, the defendant filed applications to condone the delay of 413 days in filing the applications to set aside the ex-parte decrees.
7. The averments stated in the affidavit filed in support of the applications were disputed by the plaintiff.
8. The Trial Court, taking into consideration the case of both the parties, condoned the delay, finding that the defendant was set ex-parte and that no opportunity was given to him to participate in the trial. Further, the Trial Court, while condoning the delay held that to provide an opportunity to the defendant to participate in the trial proceedings and in the interest of justice, the applications to condone the delay of 413 days are allowed.
9. On a perusal of the affidavit filed in support of the applications, it could be seen that though according to the defendant he came to know about the ex-parte decree sometime in the year 2007 itself, he choose to remain silent till March 2009 for filing the applications to set aside the ex-parte decrees.
10. Mr.Ravikumar Paul, learned counsel appearing for the petitioner submitted that in the absence of sufficient cause shown by the party, the Trial Court should not have condoned the delay. In support of his contention, the learned counsel relied upon the following judgments:-
(i) Pundlik Jalam Patil (D) by LRs. v. Exe. Eng. Jalgaon Medium Project & Another wherein, the Hon'ble Supreme Court held that settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. The Hon'ble Supreme Court further held that the law of limitation
(ii) P.K. Ramachandan v. State of Kerala, wherein, the Hon'ble Supreme Court held that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. Further, the Hon'ble Supreme Court held that discretion excised by the High Court was, thus, neither proper nor judicious. In thee circumstances, the Hon'ble Supreme Court set aside the order passed by the High Court and dismissed the application for condonation of delay.
11. Countering the submissions made by the learned counsel appearing for the petitioner, Mr. A.R.L. Sundaresan, learned Senior Counsel, appearing for the respondent submitted that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit.
In support of his contention, the learned Senior Counsel relied upon a judgment reported in 1998 (7) SCC
