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Bagiammal Vs. Subramaniam and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ253
AppellantBagiammal
RespondentSubramaniam and ors.
Excerpt:
- .....under section 5 subject to payment of costs to the plaintiff.2. in this revision the plaintiff's learned counsel is not minded to find fault with the court below for having accepted the factum of ill-health pleaded by the defendants. what learned counsel urges is that illness as such could not serve as sufficient cause.3. the argument addressed in such broad fashion does not seem to me to further purposeful discussion. for the inquiry under section 5 can be properly directed only if one asks the question whether given the kind of illness in the case it would not amount to sufficient cause. approaching the present matter in this way, can it be said that the court below was wrong in its determination? i think not. i do not mean to suggest that every time something delays an application.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. The question in this revision is whether the Court below acted right in allowing an application under Section 5 of the Limitation Act and excusing the delay, a matter of 79 days or so. The delay involved was in the filing of an application for setting aside an ex parte decree. The defendants who applied for this relief were a husband and wife. Their explanation for the delay was that the husband was ill with heart disease and also jaundice, and was taking treatment away from home Although the plaintiff opposed the application under Section 5, there was not a word of effective denial in his counter affidavit either of the illness alleged or its treatment. All that was urged by the plaintiff was that the allegations of illness were 'not proper' and were 'unbelievable' as though he was reviewing those allegations and not traversing them. In the event the learned Judge disposed of the matter thus:

The ill health pleaded in the petition seems to be not unbelievable.

I believe it and ignore the objection of the plaintiff

The learned judge accordingly allowed the application under Section 5 subject to payment of costs to the plaintiff.

2. In this revision the plaintiff's learned Counsel is not minded to find fault with the Court below for having accepted the factum of ill-health pleaded by the defendants. What learned Counsel urges is that illness as such could not serve as sufficient cause.

3. The argument addressed in such broad fashion does not seem to me to further purposeful discussion. For the inquiry under Section 5 can be properly directed only if one asks the question whether given the kind of illness in the case it would not amount to sufficient cause. Approaching the present matter in this way, can it be said that the Court below was wrong in its determination? I think not. I do not mean to suggest that every time something delays an application or other proceedings a mere allegation by him that he was ill must be accepted as a sufficient cause without proof. In the present case the Court below had proceeded to judge the situation on broad probabilities as to the nature and effect of the illness and this was entirely by the defendants and their consequential inability to pursue the proceedings in time. I think the Court was entitled to bring to bear a humanistic approach to its decision, once it was convinced that the illness alleged was real and not feigned. For here is a man past middle age who was affected by cardiac trouble and who was also down with jaundice to boot. What would be his position under such conditions the one affecting the heart and the other affecting the liver? Both ailments are notoriously serious, particularly at this time of a man's life even if one rules out further complications. Diseases of this kind have a tendency to debilitate even strong constitutions. Not only is recovery a slow process, but it would call for a period of nursing and prolonged rest in bed. It would not therefore be reasonable to regard the delay in this kind of case as inordinate once we grant as we must in this case that the prime cause for it was diseased heart and or jaundiced liver.

4. The plaintiff's learned Counsel then said that of the two defendants who had committed the delay, the excuse offered could operate in favour of one alone and not the other. Learned Counsel said it was the husband who was reported sick not the wife and that being so, the application under Section 5 must have been dismissed as against the latter at least in any case.

5. This argument again burks the realities. Any ordinary observer of the homes of cardiac patients would know that the reverberations the disease produces in the family circle are of a kind and intensity which no other disease produces except perhaps cancer. There is no suggestion in this case that the wife was living apart from her sick husband. One might therefore, accept the illness of the one as a determining factor for the enforced delay of the other as well.

6. The final criticism that the plaintiff's learned Counsel uttered was about the brevity of the order. The point really diverts the discussion from the merits of a Court determination to its composition, as judicial probe. I do not think myself that the length of a judge's decision can be the basis of an intelligent legal argument. Brevity is often a matter of style or shall I say, of the writer's upbringing What we must look for in a piece of legal writing is not whether it is short but whether it is to the point. Besides I am not sure that in these days of judicial prolixity economy in expression is not a forensic virtue to be fostered rather than discouraged at least in interlocutory proceedings.

7. The order under revision thus survives every one of the contentions urged on behalf of the plaintiff. The revision petition is accordingly dismissed. There will be however no order as to costs.


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