The High Court dismissed a civil revision petition challenging a trial court order that set aside an ex parte decree after condoning a delay of 550 days by the respondent in filing an application to set aside the decree.
Civil revision petition dismissed; suit to be disposed within four months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.11.2013
CORAM:
THE HON'BLE MR.JUSTICE T.MATHIVANAN
CRP.NPD.No.330 of 2010
G.Sritharan .... Petitioner
Vs.
1.The Commercial Tax Officer (Rural) Cuddalore – 1 Having Office at Commercial Tax Office Sub Jail Road, Manjakuppam, Cuddalore -1.
2.The State of Tamilnadu, Rep.by Collector, Cuddalore District, Having Office at Collectorate, Cuddalore – 1. .... Respondents
Prayer : This civil revision petition is filed under Section 115 of C.P.C., against the fair and decretal order dated 13.11.2009 and made in I.A.No.637 of 2009 in O.S.No.524 of 2006 on the file of the learned Additional District Munsif, Cuddalore.
For Petitioner : Mr.V.R.Shanmuganathan For Respondent : Mr.T.Jayaramaraj (GA)
O R D E R
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The matrix of the case.
have filed a suit in O.S.No.527 of 2006 as against the respondent herein being the Commercial Tax Officer, Cuddalore and another seeking the relief of declaration, declaring his title to the suit property free from any claim by the first respondent/first defendant and for the alleged arrears from Merabai Ammal and also for permanent injunction.
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Rule 13 of the C.P.C., to set aside the ex parte decree there was a delay 550 days and therefore, the respondent/defendant was constrained to file an application under Section 5 of Limitation Act, in I.A.No.637 of 2006, to condone the delay. The
revision petitioner being the plaintiff had also filed his counter, resisting the said application strongly. However, the learned trial judge had proceeded to allow the petition on 12.11.2009, after condoning the delay of 550 days and thereby the ex parte decree dated 15.02.2007 was set aside. Being
aggrieved by the impugned order, the revision petitioner being the plaintiff has approached this court with this memorandum of civil revision.
Mr.V.R.Shanmuganathan, learned counsel for the revision petitioner has advocated that the suit in O.S.No.527 of 2006 was filed on 09.12.2006 and that
the Government Pleader had filed a memo of appearance
on behalf of the respondent/defendant on 10.12.2006. The suit had been crossing so many hearings from
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12.10.2006 for filing the written statement on behalf
of the respondent/defendant. When the suit was called on 10.02.2007, the respondent/defendant had not evinced any interest to file his written statement on that date and therefore, the respondent/defendant was called absent and set ex parte for not filing the written statement in time and then the suit was posted on 15.02.2007, on which date the ex parte decree was passed.
that even in spite of sufficient chances were given, the respondent/defendant had not come forward to file his written statement in time and the ex parte decree was passed after passing of four months. He would
further contend that the ex parte decree dated 15.02.2007 ought to have been set aside within a
stipulated period of 30 days. But the
respondent/defendant had kept quite for a long period of 550 days and thereafter, they have conveniently filed the above application to condone the delay of 550 days in filing an application under Order 9 Rule 13 of CPC., without showing sufficient cause.
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therefore, the action and conduct of the
respondent/defendant was not justified in filing the above said petition after an abnormal delay of 550 days.
District Munsif has also miserably failed to consider that there was a vacuum in place of sufficient cause
which ought to have been shown by the respondent/defendant, satisfactorily. He has
submitted further that when there was no satisfactory explanation or sufficient cause for condoning the abnormal delay of 550 days the petition ought to have
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been dismissed. But without appreciating the facts of the petition in a proper perspective, the learned District Munsif had proceeded on the wrong direction to allow the petition after condoning the delay.
Ltd., & Another reported in 2012 (2) CTC 240. In this case the respondent Living Media India Ltd., is the publisher for magazines 'Reader's Digest' & 'India Today' had requested the appellant Postal Department for mailing a book-let containing an advertisement at concessional rate, which was rejected by the Postal-Department. That request was challenged in a writ petition by the Living Media India Ltd., and it was allowed. Thereafter an appeal was filed by the appellant Postal Department, challenging the order in writ petition and the writ appeal was also dismissed. Having been aggrieved by the order of dismissal of the writ appeal, the Chief Post Master General had approached the Hon'ble Supreme Court of India, with an SLP with a delay of 427 days.
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a) Whether the Office of the Chief Post Master General has shown sufficient cause for condoning the delay of 427 days in filing SLPs before this Court. Depending on the outcome of the above issue, other issues to be considered are:
b) Whether the impugned advertisement inserted in the Reader's Digest issue of December, 2005 is in conformity with the requirement of law.
c) Whether the Department has made out a
case for interference under Article 136 of
the Constitution of India to reopen concurrent findings of fact rendered by the High Court.
cause, the learned Additional Solicitor General,
while advancing his arguments, had placed reliance upon the decision in Collector, Land Acquisition,
Anantnag and Another v. Mst. Katiji and Others,
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reported in 1987 (2) SCC 107.
"1.Ordinarily a litigant does not stand to
benefit by lodging an appeal late.
a meritorious matter being thrown out at the
very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3."Every day's delay must be explained"
does not mean that a pedantic approach should
be made. Why not every hour's delay, every second's delay? The doctrine must be applied
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in a rational common sense pragmatic manner.
4.When substantial justice and technical
considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
"13. In our view, it is the right time
to inform all the government bodies, their
agencies and instrumentalities that unless
they have reasonable and acceptable
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explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments
are under a special obligation to ensure
that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for
the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay Accordingly the appeals are liable to be dismissed on the ground of delay."
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learned Government Advocate appearing for the respondent has submitted that when the suit was posted for hearing on 15.02.2007, the respondent was not able to attend the court on account of his administrative work and since the Pleader for the Government was engaged in other court he was also not able to attend the court and file a written statement and under the said circumstance the respondent was called absent and subsequently, an ex parte decree was passed. It may be relevant to note her that the application in I.A.No.637 of 2009 was filed to condone the delay of 550 days in filing an application to set aside the decree.
the respondent has argued that the principle of liberal approach could be applied in this case as there was administrative delay on the part of the respondent. He has also maintained that there was no oblique motive on the part of the
respondent/defendant to protract the proceedings and therefore, the length of delay is not the criteria, but the court has to find out as to whether there was
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any intention on the part of the respondent/defendant to prolong or protract the proceedings in keeping quite for such a long period of 550 days without taking any effort in filing an application to set aside the ex parte decree.
the revision petitioner/plaintiff has also adverted to that the respondent/defendant had not shown any sufficient cause to condone such a long delay and as
observed by the apex court in Office of the Chief Post Master General & Others vs. Living Media India
Ltd., & Another (cited supra) the delay cannot be condoned mechanically or merely because the Government or a wing of the Government is a party.
respondent/defendant was examined as PW 1 before the trial court, during the course of enquiry in the above said application. Admittedly, the
respondent/defendant had failed to give adequate explanation in non-filing of written statement for about four months and there is also no explanation for the delay of 550 days in filing the petition.
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respondent/defendant when he was examined as PW 1 in his application, the learned counsel for the revision petitioner/plaintiff has argued that the respondent/defendant (PW 1) was having knowledge of passing of the ex parte decree and that he had wantonly and deliberately not chosen to file an application to set aside the ex parte decree and with deep unresponsiveness, they kept quite and the they had also not come forward to show any sufficient cause to condone the delay of 550 days and therefore, he has urged to set aside the order of trial court dated 13.11.2009.
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18.11.2013
Index : Yes/No Internet : Yes/No prm
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T.MATHIVANAN, J. prm
To, The learned Additional District Munsif, Cuddalore.
CRP.NPD.No.330 of 2010
18.11.2013
2 issues framed by the court
Whether the trial court erred in condoning a delay of 550 days by the respondent in filing an application to set aside an ex parte decree.
Whether sufficient cause was shown for the abnormal delay in filing the petition under Order 9 Rule 13 CPC.
Colour shows how this judgement treated each authority
Office of the Chief Post Master General & Others vs. Living Media India Ltd., & AnotherReferred¶48
Office of the Chief Post Master General & Others vs. Living Media India Ltd., & Another reported in 2012 (2) CTC 240.
Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and OthersReferred¶59
Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, reported in 1987 (2) SCC 107. · Who else cites this
3 provisions across 2 enactments
G.Sritharan
The Commercial Tax Officer (Rural) Cuddalore
The State of Tamilnadu
T.MATHIVANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
