In an application to condone excessive delay in setting aside an order dismissing a suit for default, the single judge held that the plaintiff offered no reasonable explanation for the lapse. Quoting precedents on the doctrine of laches, the court dismissed the application, leaving the suit void against the specific defendant.
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 (ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 03rd DAY OF MARCH 2017 THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN A. No.1032 of 2017 IN C.S.NO.497 OF 2010
A.Pathima, W/o Hassan, No.8 A, South Kavarai Street, West Mambalam, Chennai 33 ... Plaintiff/Applicant Vs. 1.J.Devarajalu S/o D.Jayaram Naidu No.47, 3rd Cross, V.G.Layour, Palavakkam, Chennai 41
2.J.Vijayaraghavalu S/o D.Jayaram Naidu, 83 & 84, Moore Street, Chennai 1
3.J.Sathyanarayanana S/o D.Jayaram Naidu, H 110, G 1, 1st Seaward Road, Valmiki Nagar, Thiruvanmayur Chennai
4.J.Ananthakrishnan, S/o D.Jayaram Naidu, 28, 2nd Street, Bharathi Nagar, Maduravoyal, Chennai 102
5.Vedavalli D/o D.Jayaram Naidu, W/o Chandraprakasam 96/1, GST Road, Chengalpatti (Behind Reliance Show Room)
6.Pushpavalli W/o Shantha Kumar No.13/4A, Natha Muni Street, Near Panagal Park, T.Nagar, Chennai 17
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7.J.Ethirajulu S/o D.Jayaram Naidu, No.13/4A, Natha Muni Street, Near Panagal Park, T.Nagar, Chennai 17
8.Lakshmipathi Narayanan, S/o D.Jayaram Naidu, No.13/4A, Natha Muni Street, Near Panagal Park, T.Nagar, Chennai 17
9.J.Lakshmipathi, S/o D.Jayaram Naidu, No.13/4A, Natha Muni Street, Near Panagal Park, T.Nagar, Chennai 17 ... Defendants/Respondents
Application praying that this Hon'ble Court be pleased to condone the delay of 2013 days in setting aside the order dated 8.7.2011 passed in CS 497 of 2010.
This Application coming on this day before this court for hearing the court made the following order:
This is an application filed to condone the delay of 2,013 days in setting aside the order dated 08.07.2011 of the Master dismissing the suit against the 3 rd defendant.
2. The applicant is the plaintiff, who has filed the suit in C.S.No.497 of 2010 for a direction against defendants 1 to 5 and 9 th defendant to pay a sum of Rs.31,32,000/- [Rupees thirty one lakhs and thirty two thousand only] together with interest @ 24% per annum on
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Rs.18,00,000/- [Rupees eighteen lakhs only] and for a charge over the schedule mentioned property and for other reliefs.
3. There were totally 9 defendants in the suit. All the defendants are sons and daughters of Late D.Jayaram Naidu. It is the case of the applicant/plaintiff that the defendants had offered to sell the suit schedule property and an agreement of sale was entered into on 25.01.2007 and the applicant had also paid substantial advance amounts out of which, the defendants have repaid Rs.17,00,000/- [Rupees seventeen lakhs only]. It had been stated that the suit has been filed seeking repayment of the balance advance amount of Rs.18,00,000/- together with interest. In the said suit, on 08.07.2011, the Master had noted as follows:-
“No representation. There are nine defendants. Service except D1, D3, D8 and D9 got effected and D5 is still awaited. Suit against D1,D3,D8 and D9 stands dismissed for default. As D5 process is still awaited, for giving an opportunity, await by 05.08.2011”.
combination of both the notices reveal that the plaintiff had taken steps, however belatedly and the batta had been returned and the Master has dismissed the suit for not
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taking steps as against D1, D3, D8 and D9.
delay of 2,013 days in setting aside the order dated 08.07.2011 passed by the Master, as far as D3 alone is concerned.
application, it has been stated that summons had been served on the 3rd defendant and the same counsel who appears for D6 and D7 had also filed vakalat for D3. It had been stated that in the interest of justice, the delay should be condoned.
& 7 relied on Pundlik Jalam Patil (dead) by LRS. Vs Executive Engineer, Jalgaon Medium Project and another
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[(2008) 17 SCC 448] , wherein, the Hon'ble Supreme Court had
observed as follows:-
“17. The applicant having set the machinery in motion cannot abandon it to resume it after number of years because the authority with whom it had entered into correspondence did not heed to its request to file appeals. The question is: Can the respondent applicant in this case take advantage of its negligence, after a lapse of number of years, of the decision of the Government? It knew the exact grounds on which appeals could have been preferred. The law will presume that it knew of its right to file appeal against the award. Everybody is presumed to know law. It was its duty to prefer appeals before the court for consideration which it did not. There is no explanation forthcoming in this regard. The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and “do not slumber over their rights”.
relied on Sundar Gnanaolivu rep. by his Power of Attorney
Agent Mr.Rukmini Vs. Rajendran Gnanavolivu Rep. by its Power of Attorney Agent Veina Gnanavolivu [2003 (1) LW 585] wherein, a Division Bench of this Court had observed as follows:-
“Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.”
and also posed a rhetoric as under:
“Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging
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over his head indefinitely for a period to be determined at the whims and fancies of the opponent?”
seen that the learned Master had originally noted as follows:-
“120. No representation. Steps not taken as directed earlier. Hence, list it in the 'default list' by 08.07.2011.”
“The other side would have in all probability destroyed the records would not be relevant as there was no further proceeding in the matter.”
I hold that it will be extremely unfair to now call upon D3
to answer to the claim of the plaintiff in the suit. It is seen that the suit is of the year 2010 and nearly seven years have passed and the plaintiff has not taken effective steps to proceed with the suit.
03.03.2017
//Certified to be a true copy// Dated this the th day of 2017.
gm/22.03.2017 COURT OFFICER
From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.
3 issues framed by the court
Whether the delay of over 2000 days in setting aside the default dismissal of a suit should be condoned.
Whether the plaintiff filed any valid explanation for the belated filing of the application to set aside the impugned order.
Whether the court should condone the failure of the plaintiff to take effective steps to proceed with the suit for seven years.
Colour shows how this judgement treated each authority
Pundlik Jalam Patil (dead) by LRS. Vs Executive Engineer, Jalgaon Medium Project and anotherApplied¶34
Pundlik Jalam Patil (dead) by LRS. Vs Executive Engineer, Jalgaon Medium Project and another [(2008) 17 SCC 448] · Who else cites this
Sundar Gnanaolivu rep. by his Power of Attorney Agent Mr.Rukmini Vs. Rajendran Gnanavolivu Rep. by its Power of Attorney Agent Veina GnanavolivuReferred¶39
Sundar Gnanaolivu rep. by his Power of Attorney Agent Mr.Rukmini Vs. Rajendran Gnanavolivu Rep. by its Power of Attorney Agent Veina Gnanavolivu [2003 (1) LW 58
A.Pathima, W/o Hassan
J.Sathyanarayanana S/o D.Jayaram Naidu
C.V. Karthikeyan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
