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Rengasamy Vs. Syed Mustafa - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.R.P.PD (MD) No. 1785 of 2016 & C.M.P.No. 8597 of 2016
Judge
AppellantRengasamy
RespondentSyed Mustafa
Excerpt:
.....and exparte decree was passed on 25.10.2010. to set aside the said exparte decree, the petitioner filed application along with section 5 application in i.a.no.880 of 2014, to condone the delay of 1453 days in filing the application to set aside the exparte decree. 3. according to the petitioner, the petitioner was suffering from small vessel disease and hyper tension for the past 10 years and he was under treatment at p.s.g.hospital, coimbatore and hence, he was not in a position to appear before the court. it is true that there is delay of 1453 days in filing the application to set aside the exparte decree passed by the trial court. however, the trial court has not considered the case of the petitioner and erroneously dismissed the said application and hence, he prayed for allowing of.....
Judgment:

(Prayer: Civil Revision petition is filed under Section 115 of C.P.C., to set aside the order dated 13.04.2016 passed in I.A.No.880 of 2014 in O.S.No.220 of 2007 on the file of the Principal Subordinate Judge, Trichirappalli.)

1. The civil revision petition is filed against the order dated 13.04.2016 passed in I.A.No.880 of 2014 in O.S.No.220 of 2007 on the file of the Principal Subordinate Judge, Trichirappalli.

2. According to the learned counsel for the petitioner, the respondent has filed the suit in O.S.No.220 of 2007 before the learned Principal Subordinate Judge, Trichy for specific performance and in the said suit, the petitioner was set exparte and exparte decree was passed on 25.10.2010. To set aside the said exparte decree, the petitioner filed application along with section 5 application in I.A.No.880 of 2014, to condone the delay of 1453 days in filing the application to set aside the exparte decree.

3. According to the petitioner, the petitioner was suffering from small vessel disease and hyper tension for the past 10 years and he was under treatment at P.S.G.Hospital, Coimbatore and hence, he was not in a position to appear before the Court. It is true that there is delay of 1453 days in filing the application to set aside the exparte decree passed by the trial Court. However, the trial Court has not considered the case of the petitioner and erroneously dismissed the said application and hence, he prayed for allowing of the present revision.

4. Per contra, the learned counsel for the respondent would submit that there is inordinate delay in filing the application to set aside the exparte decree. The respondent being a plaintiff filed a suit for specific performance in the year 2007 and the exparte decree was passed on 25.10.2010 and after 5 years lapsed, the instant application has been filed. The application is nothing but to drag on the proceedings to get the fruitful of the decree passed by the trial Court. The petitioner has denied only the statement of the plaint and hence, on merits also, the trial Court has rightly dismissed the said application and hence, he prayed for dismissal of the application.

5. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the available materials.

6. The respondent herein filed a suit in O.S.No.220 of 2007 for specific performance against the petitioner herein. In the said suit, the petitioner was set exparte and exparte decree was passed by the trial Court on 25.10.2010. Thereafter, the instant application has been filed by the petitioner before the learned Principal Subordinate Judge, to condone the delay of 1453 days in filing the application to set aside the exparte decree. The trial Court has dismissed the same and hence, the present revision has been filed by the petitioner/defendant.

7. Perusal of the affidavit would show that the petitioner has not adduced any satisfactory explanation to condone the delay in filing the application to set aside the exparte decree.

8. 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.

23. 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.

9. Considering the above said decision along with the facts and circumstances of the case, I am of the view that the petitioners have not given sufficient cause for condonation of delay and the trial Court has rightly dismissed the application filed by the petitioner for the reason that the petitioiner has not shown any reason to condone the inrodinate in filing the application to set aside the exparte decree. Therefore, applying the maxim Vigilantibus non-dormientibus jura subveniunt (Law assists those who are vigilant and not those, who sleep over their rights), the petitioner is not entitled any relief and this civil revision fails and the same is hereby dismissed. No costs, Consequently, connected miscellaneous petition is also dismissed.


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