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2020 Supreme(Mad) 1274
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
Kotteeswari & Others
Versus
Devaki Amma
CRP NPD. No. 3643 of 2018 & CMP No. 20268 of 2018
Decided On : 11-12-2020
For the Petitioners:V. Lakshminarayanan, Advocate
For the Respondent:J.R.K. Bhavanantham, Advocate
The central legal point established in the judgment is the need for a liberal approach in condoning delay and the prioritization of substantial justice over technical defences.
Headnote:
Delay Condonation - Civil Revision - IA No.219 of 2013 in I.A.No.303 of 2011 in O.S.No.202 of 2006 - Section 148 of the Code of Civil Procedure, University of Delhi vs. Union of India (2019 SCC online 1634) - The court discussed the principles of condoning delay, the liberal approach required in matters of delay, and the technical defences that should not stand in the way of substantial justice.
Fact of the Case:
The petitioners sought to condone a delay of 162 days in filing an application to restore IA No.303 of 2011, which was dismissed for noncompliance with a condition. The Trial Court dismissed the application, citing a judgment that had been overruled.
Finding of the Court:
The Court found that the Trial Court erred in relying on an overruled judgment and in adopting a strict approach towards the delay. It emphasized the need for a liberal approach in condoning delay and held that technical defences should not stand in the way of substantial justice.
Issues: The issues involved the condonation of delay, the maintainability of the application for restoration, and the Trial Court's reliance on an overruled judgment.
Ratio Decidendi: The Court's decision was based on the principles of condoning delay, the liberal approach required in such matters, and the need to prioritize substantial justice over technical defences.
Final Decision: The Civil Revision Petition was allowed, the order of the Trial Court was set aside, and the application for extension of time was treated as allowed. The Court directed the restoration of IA No.303 of 2011 and the disposal of the suit within six months.
JUDGMENT :
(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order in I.A.No.219 of 2013 in I.A.No.303 of 2011 in O.S.No.202 of 2006, on the file of the Additional Sub Judge of Chengalpattu dated 11.07.2014.)
1. This matter is taken up for hearing through Video-Conferencing. This Civil Revision is against an order dismissing an application filed by the petitioners seeking condonation of delay of 162 days in filing an application to restore IA No.303 of 2011 which was dismissed for noncompliance with the condition on 27.11.2012.
2. A suit for partition was laid by the respondent herein seeking division and separate possession of her half share in the suit properties. The said suit came to be decreed exparte on 03.12.2010. An application in IA No.303 of 2011 was filed, within time, to have the exparte decree set aside. The said IA No.303 of 2011 was allowed on condition that the petitioners should pay costs of Rs.500/- on or before 27.11.2012, since the cost was not paid, the petition was dismissed on 27.11.2012. Thereafter, after delay of 162 days, the petitioners/defendants came up with the instant application in IA No.219 of 2013 seeking to condone the delay in seeking restoration of IA No.303 of 2011. This application was dismissed by the Trial Court on the ground that such an application is not maintainable, relying upon the judgment of this Court in Kandasami Gounder v. Muthusami Gounder and others, reported in 2005 (3) MLJ 333. It is against the said order the petitioners have come up on revision.
3. I have heard Mr.V.Lakshminarayanan, learned counsel appearing for the petitioners and Mr.J.R.K.Bhavanantham, learned counsel appearing for the sole respondent.
4. Mr.V.Lakshminarayanan, learned counsel appearing for the petitioners would submit that the judgment in 2005 (3) MLJ 333 was over ruled by a Division Bench of this Court in Gowri Ammal v. Murugan and Others, reported in 2006 (2) MLJ 729. In Gowri Ammal v. Murugan, the Division Bench of this Court had pointed out that in the light of the principle laid down by the Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (UOI), reported in 2005 (6) SCC 344, the judgment of the Single Judge reported in 2005 (3) MLJ 333 is no longer good law. Therefore, the learned Subordinate Judge was in error in following a Judgment which was over ruled.
5. Contending contra, Mr. J.R.K.Bhavanantham, learned counsel appearing for the respondent would submit that the petitioners have wantonly allowed the matter to deviate and have come up this application only to prevent execution of the decree. He would also point out that pursuant to the said exparte decree a final decree has also been passed. The learned counsel would also submit that an application for restoration of an application which was dismissed for not complying with the condition is not maintainable and the petitioners should have sought for extension of time under Section 148 of the Code of Civil Procedure. I have considered the rival submissions.
6. It is unfortunate that the learned Subordinate Judge should have relied upon a judgment which has been held to be not good law by a Division Bench of this Court. It is settled principle of law that the petition to extend the time granted can be filed even after the expiry of the time originally fixed. Therefore, the order of the learned Subordinate Judge rejecting the application on the ground that it was filed after the time granted had expired is erroneous. The learned Subordinate Judge has also concluded that the petitioners have not explained the delay properly. Considering the length of the delay and the fact that the suit is one for partition, the Trial Court, in my considered opinion, should not have adopted a strict approach.
7. The Hon’ble Supreme Court and this Court have been repeatedly pointing out that Courts must be liberal in condoning the delay. Usefull reference c
