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SP.VALLIAMMAI versus RUKMANI GANESA

High Court of Madras

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SP.Valliammai v. Rukmani Ganesa - C.R.P.(NPD)(MD) No.221 of 2004 [2007] RD-TN 1562 (21 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 21/04/2007

Coram

The Hon'ble Mr.JUSTICE S.RAJESWARAN

C.R.P.(NPD)(MD) No.221 of 2004

SP.Valliammai .. Petitioner vs.

Rukmani Ganesan .. Respondent

Civil Revision petition filed under Sec.115 of C.P.C., against the order dated 30.7.2004 and made in I.A.No.13/2004 in O.S.No.140/1989 on the file of the District Judge, Sivaganga.

For Petitioner .. M/s.D.Rajendran, R.Devaraj.

For Respondent .. M/s.T.M.Hariharan, G.Sridharan.

:ORDER



This Civil Revision petition has been filed under Sec.115 of C.P.C., against the order dated 30.7.2004 and made in I.A.No.13/2004 in O.S.No.140/1989 on the file of the District Judge, Sivaganga.

2.The 2nd defendant in O.S.No.140/1989 on the file of the District Judge, Sivagangai is the revision petitioner.

3.The respondent herein filed O.S.No.140/1989 against the husband of the 1st defendant for recovery of a sum of Rs.5,25,698.50 and pending suit, the husband of the 1st defendant passed away. The 2nd defendant and her children were brought on record as Legal Representatives of the deceased husband. On 30.11.1996, an exparte decree was passed by the trial court in favour of the respondent. E.P.No.30/1999 was filed by the respondent and he sought to bring the 2nd defendant's property for sale. The petitioner herein (2nd defendant) participated in the execution proceedings without filing any application to set aside the exparte decree. Hence she filed an application to set aside the exparte decree dated 30.11.1996 in December 2003 along with a petition to condone the delay of 2546 days in filing the petition to set aside the exparte. The trial court by order dated 30.7.2004 dismissed the condone delay petition and aggrieved by the same, the above Civil Revision Petition has been filed under Sec.115 of the Code of Civil Procedure.

4.Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the documents filed and the judgments cited in support of their submissions.

5.Though a number of authorities were cited by both the learned counsel, I am not referring to them as the law is well settled with regard to a condone delay petition filed under Sec.5 of the Limitation Act.

6.In any petition filed to condone the delay, there is always bound to be some lapse on the part of a litigant and in the normal course, the courts will not interfere with the exercise and jurisdiction of the trial Judge in condoning the delay as the lis has to be decided on merits. Further, the length of the delay is not material and the acceptability of the reasons given by the petitioner is important. The words 'sufficient cause' under Sec.5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. At the same time, the court is expected to test the bona fide of the reasons given by the petitioner to avoid a party indulging in dilatory tactics. If the delay caused is due to a deliberate act of the party to gain time, then the court should lean against the acceptance of the reasons given by such party. Whether or not there is sufficient cause for condonation of delay is a question of fact which depends on the facts and circumstances of a particular case.

7.Now in the light of the above settled legal principles, let me consider whether sufficient cause has been shown by the revision petitioner to condone the delay of 2546 days.

8.It is not in dispute that the petitioner/2nd defendant was brought on record as a party to the suit along with the children after the demise of her husband against whom the suit was originally filed by the respondent herein. The 2nd defendant filed I.A.No.522/1990 questioning the jurisdiction of the trial court and the same was dismissed, against which the 2nd defendant filed C.R.P.No.3164/1991 and the said revision petition was also dismissed on 22.9.1995.

9.According to the revision petitioner, thereafter due to her illiteracy and ill-health, she could not contact her lawyer resulting in an exparte decree being passed by the trial court on 30.11.1996 and she came to know about the exparte decree only after receiving the notice in E.P.No.30/1999 filed by the respondent.

10.At this stage, if a petition had been filed by the second defendant to set aside the exparte decree along with the condone delay petition, the same could have been considered sympathetically in favour of the revision petitioner by taking a lenient view and condoning the lapse on her part.

11.But the revision petitioner participated in the E.P.,proceedings and opposed the same vigorously by filing one application after another and finally an application under Sec.47 of the C.P.C., was filed. In fact, in one of the orders passed by the execution court, she filed a revision petition in C.R.P.(NPD) No.355/2004 and the same was dismissed by this court on 9.7.2004, wherein this court observed that no appeal has been preferred by the revision petitioner so far. The application filed under Sec.47 C.p.C., was dismissed on 4.11.2003 and only thereafter she woke up from her slumber and suddenly realised that the exparte decree is not yet set aside and filed a petition under Order 9 Rule 13 CPC to set aside the exparte decree along with a petition to condone the delay of 2546 days under Sec.5 of the Limitation Act. The only reason given by the revision petitioner for not filing an application to set aside the exparte decree after receiving the notice in E.P.No.30/1999 is that she was advised that proper remedy was to contest the execution proceedings and not to file an application to set aside the exparte decree.

12.There is absolutely no bona fide on the part of the revision petitioner and I find it extremely difficult to accept the reasons given by the revision petitioner to condone the delay of 2546 days. The revision petitioner knew that there is an exparte decree after receiving the notice in E.P.No.30/1999 and after hotly contesting the execution proceedings and after her Sec.47 C.P.C., application was dismissed on 4.11.2003, she immediately filed the application to set aside the exparte decree along with the condone delay petition. The conduct of the petitioner by waiting for final orders to be passed in the execution proceedings and thereafter taking steps to set aside the exparte decree reveals that she is obviously indulging in dilatory tactics and the delay has been caused deliberately and wilfully. In such circumstances, this court is unable to accept the reasons given by her and the petition filed by her to condone the delay of 2546 days and consequently the petition deserves to be dismissed.

13.The trial court has correctly gone into the entire facts and rightly dismissed I.A.No.13/2004. Though some of the observations made by the trial court are unnecessary, like each and every day delay has to be explained etc., the trial court has come to the right conclusion that there is no bona fide on the part of the revision petitioner.

14.Therefore, I find no infirmity or illegality in the order passed by the trial court in dismissing I.A.No.13/2004 and I find no merits in this Civil Revision petition and it deserves to be dismissed.

15.In the result, the Civil Revision petition is dismissed. No costs. 


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