(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, praying this Court to set aside the order made in I.a.No.381 of 2014 in I.A.No.416 of 2010 in O.S.No.283 of 2008, dated 17.3.2016, on the file of Sub-Court, Theni and to direct the Sub-Court, Theni to hear O.S.No.283 of 2008 on merits.)
1. This revision has been filed seeking for a direction to set aside the order made in I.a.No.381 of 2014 in I.A.No.416 of 2010 in O.S.No.283 of 2008, dated 17.3.2016, on the file of Sub-Court, Theni and to direct the Sub-Court, Theni to hear O.S.No.283 of 2008 on merits.
2. The facts of this case are:
The respondents herein filed a suit in O.S.No.283 of 2008 on the file of Sub-Court, Theni, for the relief of specific performance pursuant to the alleged agreement dated 29.11.2006..An exparte decree was passed in the suit on 5.11.2010 and the respondents herein filed I.A.No.416 of 2010 to set aside the exparte decree and after filing of the above said I.A., the Petitioner went to Kerala for taking treatment for jaundice. Therefore he could not contact his counsel and in the mean time, the said I.A was dismissed for default on 5.1.2011. After returning from Kerala, the Petitioner received notice in E.P.No.90 of 2013 and the respondent/plaintiff also obtained a draft sale deed. Thereafter, the Petitioner filed I.A.No.381 of 2014 to condone the delay of 1328 days to restore the I.A.No.416 of 2010 and the same was dismissed on 17.3.2016.
3. It is an admitted fact that the suit filed by the respondents in O.S.No.283 of 2008 before the Sub-Court, Theni is for the relief of specific performance. In the aforesaid suit, an exparte decree was passed. The revision petitioner filed an application in I.A.No.416 of 2010 to set aside the exparte decree passed against the petitioner in the suit and the same was dismissed on 25.8.2014.Thereafter the Petitioner has filed the present petition in I.A.No.381 of 2014 to condone the delay of 1328 days in filing the application to restore the dismissal order made in I.A.No.416 of 2014 and the same was dismissed on 17.3.2016.In the aforesaid application, the Petitioner has assigned reason that the Petitioner was suffering from illness and had taken treatment at Kerala and thereafter only he came to know about the fact that the present application has been dismissed. For the inordinate delay of 1328 days in filing the application to restore the dismissal order made in I.A.No.416 of 2010,the petitioner has to produce oral and documentary evidence. The suit has been filed for specific performance. Already more than 16 years have elapsed, if the Petitioner is vigilant to prosecute the case and if the inordinate delay is condoned without any proper reason, the respondent would naturally put to hardship for the delay of 1328 days to prosecute the case. The petitioner has not shown any bona-fide reasons in his affidavit supported by materials in the present application.
4. At this juncture, it is appropriate to consider the decision relied on by the learned counsel for the respondent reported in 2015(5) CTC 534 H.Dohil Constructions Co. Pvt. Ltd., V. Nahar Exports Ltd., wherein, in paras 20 to 23, it was held that total lack of bonafides and without assigning reason for filing application for condonation is not a ground for condoning the delay. It is appropriate to incorporate paras 22 and 23 of the said decision
22. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee (supra), where several principles were culled out to be kept in mind while dealing with such Applications for condonation of delay. Principle Nos.(iv), (v), (viii), (ix) and (x) of Paragraph 21 can be usefully referred to which read as under:
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x)If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
5.Therefore in the case on hand there is an inordinate delay in filing the application to set aside the dismissal order and no evidenciary documents have been produced by the revision petitioner to substantiate the case in prosecuting the application. Therefore this Court cannot interfere with the order of the Court below and thus the revision fails.
6. Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is dismissed. No costs.
- 1. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the Appeals and the enormous time taken in the re-filing can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for re-filing, the non-furnishing of satisfactory reasons for not re-filing of papers in time and the failure to pay the Court-fee at the time of the filing of Appeal papers on 6.9.2007, the reasons, which prevented the Respondents from not paying the Court-fee along with the Appeal papers and the failure to furnish the details as to who was their Counsel, who was previously entrusted with the filing of the Appeals cumulatively considered, disclose that there was total lack of bona fides in its approach. It also requires to be stated that in the case on hand, not re-filing the Appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to re-filing. The filing of an Application for condoning the delay of 1727 days in the matter of re-filing without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the Suit for Specific Performance and when the Trial Court found that the claim for Specific Performance based on the Agreement was correct but exercised its discretion not to grant the relief for Specific Performance but grant only a payment of damages and the Respondents were really keen to get the Decree for Specific Performance by filing the Appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its Appeals registered.