Madras High Court
Madras High Court
S. Mahalingam And Ors. vs Nedungadi Bank Limited, ... on 28 December, 1995
Equivalent citations: (1996) 2 MLJ 158
Author: Thanikkachalam
ORDER
Thanikkachalam, J.
1. This civil revision is directed against the order passed in I.A. No. 199 of 1987 in an unnumbered plaint, by the Principal Subordinate Judge, Madurai. Defendants 3 to 6 in the un-numbered plaint are the petitioners herein. The plaintiff filed a suit against the defendants to recover a sum of Rs. 47,493.65 with interest at the rate of 20 per cent per annum. The plaintiff is Nedungadi Bank Limited, Madurai. The plaint was returned due to certain defects as pointed out by the office of the court of the Principal Sub Judge, Madurai. The plaint could not be re-presented within the time stipulated. There was a delay of 633 days in re-presenting the plaint.The matter came up by way of check slip before the Principal Sub Judge, Madurai. The advocate appearing for the plaintiff filed an affidavit stating that the plaint was returned and return was taken. In his office the plaint and other connected papers got mixed up with other papers. When the papers relating to one Periyathambi Velar were returned to him, the plaint in the present case as well as the connected papers were also inadvertently returned along with the papers belonging to the said Periyathambi Velar. A day prior to the filing of the petition for condonation of delay, the said Periyathambi Velar brought back the plaint in the present case and other papers and handed over the same to the counsel for the plaintiff by stating that the plaint and other papers belonging to the Nedungadi Bank were given along with his papers and he was able to find out the same only now and therefore he is returning the papers relating to the Nedungadi Bank to the counsel for the plaintiff. The said Periyathambi Velar also filed an affidavit to the abovesaid effect. The lower court issued notice to the defendants in the plaint.
5. The point for consideration is:
Whether the defendants in an un-numbered plaint can question the power of the court to condone the delay in re-presenting the un-numbered plaint?
6. A Division Bench of this Court in Y. Kusbar v. Subbarayan 1993 T.L.N.J. 375, while considering a case of similar nature held as under:
This is not a case where the appeal has been filed out of time. This is a case in which the appeal is filed in time. Therefore it cannot be said that the decree under appeal has assumed finality and the right has been accrued to the respondents. The delay in re-presentation of the papers in the instant case cannot be put to the account of the party. Several times it happens due to the mistake on the part of the advocate's clerk or the advocates in presenting the appeal. Therefore the court has to take care to see that the justice does not suffer in such cases. If there is any undue delay in re-presentation of the papers it can be compensated by awarding costs. Therefore we are of the view that when the appeal has been filed in time, but there is delay in re-presentation of the papers returned for rectification of the defects by the appellate court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs.
7. A similar question came up for consideration before this Court in General Manager, H.V.F., Avadi v.
Shadrak 1978 T.L.N.J. 332, wherein this Court held as under:
There is a clear distinction between the delay in re-presentation of a proceeding and the delay in
re-presentation of the papers with reference thereto. In view of the basic difference between the two, the consideration relevant to the former will not apply to the latter and an application for excusing the delay in re-presenting the papers, if any, proceeding whether it be a suit a civil revision petition, first appeal or a second appeal in any court, notice to the respondent in the main case is not necessary and even if such notice is given to the respondent and he is heard and over ruling his objection, the delay is condoned, he cannot be said to have been aggrieved in the sense that there being a judicial determination against him so as to entitle him to approach the High Court under Section 115, C.P.C.
In the abovesaid decision, it was further held" that in this context the difference between the condonation of delay in the proper presentation of a particular proceedings pursuant, to Section 5 of the Limitation Act and the condonation of delay in representation of a particular proceeding obviously under Section 151, C.P.C. has to be noticed. In the former case there is a specific provision in the statute viz., the Limitation Act, which imposes an obligation on the court itself suo motu, to reject proceeding if it is barred by limitation. The decision is not available or applicable to a case of delay in the re-presentation of the papers in question.
Consequently, the provision and consideration applicable to excusing the delay under Section 5 of the
Limitation Act will not apply to the question of excusing the delay in representing the papers.
8. So also in Khallur Rahman v. Rajagopal Gounder 1983 T.L.N.J. 37, this Court, while considering the delay in re-presentation of the plaint held as under:
There was a delay on the part of the plaintiffs to re-present the plaint, which was returned by the court for some compliance. When re-presenting the plaint after delay, the plaintiffs filed an affidavit explaining the reasons therefor. The court was satisfied with the plaintiffs' explanation and accepted the plaint on re-presentation after excusing the delay. This civil revision petition has been brought by parties, who are named as defendants in the plaint. The suit has not yet been numbered. Because the plaintiffs committed an indiscretion in giving notice to them of their application for excusing the delay was considered by the court below after notice to the parties, who figured as defendants, naturally those individuals had the opportunity of making their representation against the plaint being re-presented after delay. The court below having heard them had gone into their objections only to over-rule them. The fact that the court below had gone into their objections itself might be regarded as a good ground for dismissing the present civil revision petition filed by
those parties, for that shows that the court did not shut them out. But I wish to affirm the order of the lower court on a broader principle, a principle which goes counter to the procedure adopted by the court in this case." It was further held that, "the parties proposed to be added as defendants to the suit, in my judgment, do not have any locus standi to figure in the preliminaries before the suit gets numbered and suit summons goes to them. Admission of the plaint is the court's job. The condonation of the delay in re-presentation of the plaint is strictly a matter between the court, on the one hand, and the suitor, who has filed the proceedings on the order. At that stage and for those limited purposes, persons, who are proposed as the opposite parties in the plaint really have no locus standi. They cannot have any say in the matter of delay or its condonation.
9. A similar question came up for consideration before the Supreme Court in Collector, Land Acquisition, Anantang v. Katiji , while considering the provisions of Section 5 of the Limitation Act, the Supreme Court held as under:
The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits." The expression "sufficient cause employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other
courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:
S(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter 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 days' 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 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 justice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
10. But, however in M. Subramania Mudaliar v. Janardhanam (1994)1 M.L.J. 152 a Division Bench of this Court, while considering the request to condone the delay of six years in re-presentation, held that the reasons given by the Junior advocate for condonation of delay in re-presentation of six years are not convincing. Therefore the delay was not excused.
11. The above decision was rendered on the facts and circumstances arising in that case. In the present case, there was a delay of 633 days in re-presenting the plaint. The advocate for the plaintiff filed an affidavit stating that the plaint in question along with other papers, was wrongly returned to one of his clients inadvertently. The person, who took away the plaint in the present case returned back the papers after he came to know that he has wrongly taken away the plaint belonging to Nedungadi Bank. Immediately the advocate for the plaintiff re-presented the plaint with a petition to condone the delay in re-presentation. A supporting affidavit was also filed by the person, who took away the plaint along with his papers stating that after he found that the plaint belonging to Nedungadi Bank was returned to him wrongly, he returned back the said plaint to his advocate. The reasons given by the plaintiff's advocate were accepted by the trial court and the delay in re-presentation was excused. However, this order was passed by the lower court after issuing notice to the defendants in the plaint and after hearing them. Since the notices were sent to the defendants and an order was passed after hearing them, they came forward with the present revision, being aggrieved over the order passed by the trial court in excusing the delay in re-presentation. Therefore, it cannot be said that the revision filed by the petitioners herein is not maintainable If the lower court wants to dispose of the application filed to condone the delay in representation, it could have done so without notice to the defendants
in the un-numbered plaint, since the condonation of delay in re-presentation is a matter between the court and the plaintiff. But the lower court thought fit to issue notice to the defendants in the unnumbered plaint and after hearing them a final order was passed in condoning the delay, accepting the reasons given by the counsel for the plaintiff. Under such circumstances, I consider that there is no infirmity in the order passed by the trial Court in condoning the delay in re-presenting the plaint. Accordingly, this Court does not want to interfere with the order passed by the lower court in I. A. No. 199 of 1987. 12. In the result, the order passed by the trial court in I.A. No. 199 of 1987 in condoning the delay in
representing the plaint is in order and this civil revision petition is dismissed. No costs.
S. Mahalingam And Ors. vs Nedungadi Bank Limited, ... on 28 December, 1995
Indian Kanoon - http://indiankanoon.org/doc/402007/ 4
Madras High Court
S. Mahalingam And Ors. vs Nedungadi Bank Limited, ... on 28 December, 1995
Equivalent citations: (1996) 2 MLJ 158
Author: Thanikkachalam
ORDER
Thanikkachalam, J.
1. This civil revision is directed against the order passed in I.A. No. 199 of 1987 in an unnumbered plaint, by the Principal Subordinate Judge, Madurai. Defendants 3 to 6 in the un-numbered plaint are the petitioners herein. The plaintiff filed a suit against the defendants to recover a sum of Rs. 47,493.65 with interest at the rate of 20 per cent per annum. The plaintiff is Nedungadi Bank Limited, Madurai. The plaint was returned due to certain defects as pointed out by the office of the court of the Principal Sub Judge, Madurai. The plaint could not be re-presented within the time stipulated. There was a delay of 633 days in re-presenting the plaint.The matter came up by way of check slip before the Principal Sub Judge, Madurai. The advocate appearing for the plaintiff filed an affidavit stating that the plaint was returned and return was taken. In his office the plaint and other connected papers got mixed up with other papers. When the papers relating to one Periyathambi Velar were returned to him, the plaint in the present case as well as the connected papers were also inadvertently returned along with the papers belonging to the said Periyathambi Velar. A day prior to the filing of the petition for condonation of delay, the said Periyathambi Velar brought back the plaint in the present case and other papers and handed over the same to the counsel for the plaintiff by stating that the plaint and other papers belonging to the Nedungadi Bank were given along with his papers and he was able to find out the same only now and therefore he is returning the papers relating to the Nedungadi Bank to the counsel for the plaintiff. The said Periyathambi Velar also filed an affidavit to the abovesaid effect. The lower court issued notice to the defendants in the plaint.
5. The point for consideration is:
Whether the defendants in an un-numbered plaint can question the power of the court to condone the delay in re-presenting the un-numbered plaint?
6. A Division Bench of this Court in Y. Kusbar v. Subbarayan 1993 T.L.N.J. 375, while considering a case of similar nature held as under:
This is not a case where the appeal has been filed out of time. This is a case in which the appeal is filed in time. Therefore it cannot be said that the decree under appeal has assumed finality and the right has been accrued to the respondents. The delay in re-presentation of the papers in the instant case cannot be put to the account of the party. Several times it happens due to the mistake on the part of the advocate's clerk or the advocates in presenting the appeal. Therefore the court has to take care to see that the justice does not suffer in such cases. If there is any undue delay in re-presentation of the papers it can be compensated by awarding costs. Therefore we are of the view that when the appeal has been filed in time, but there is delay in re-presentation of the papers returned for rectification of the defects by the appellate court, the delay can be condoned on taking a lenient view by compensating the other side on payment of costs.
7. A similar question came up for consideration before this Court in General Manager, H.V.F., Avadi v.
Shadrak 1978 T.L.N.J. 332, wherein this Court held as under:
There is a clear distinction between the delay in re-presentation of a proceeding and the delay in
re-presentation of the papers with reference thereto. In view of the basic difference between the two, the consideration relevant to the former will not apply to the latter and an application for excusing the delay in re-presenting the papers, if any, proceeding whether it be a suit a civil revision petition, first appeal or a second appeal in any court, notice to the respondent in the main case is not necessary and even if such notice is given to the respondent and he is heard and over ruling his objection, the delay is condoned, he cannot be said to have been aggrieved in the sense that there being a judicial determination against him so as to entitle him to approach the High Court under Section 115, C.P.C.
In the abovesaid decision, it was further held" that in this context the difference between the condonation of delay in the proper presentation of a particular proceedings pursuant, to Section 5 of the Limitation Act and the condonation of delay in representation of a particular proceeding obviously under Section 151, C.P.C. has to be noticed. In the former case there is a specific provision in the statute viz., the Limitation Act, which imposes an obligation on the court itself suo motu, to reject proceeding if it is barred by limitation. The decision is not available or applicable to a case of delay in the re-presentation of the papers in question.
Consequently, the provision and consideration applicable to excusing the delay under Section 5 of the
Limitation Act will not apply to the question of excusing the delay in representing the papers.
8. So also in Khallur Rahman v. Rajagopal Gounder 1983 T.L.N.J. 37, this Court, while considering the delay in re-presentation of the plaint held as under:
There was a delay on the part of the plaintiffs to re-present the plaint, which was returned by the court for some compliance. When re-presenting the plaint after delay, the plaintiffs filed an affidavit explaining the reasons therefor. The court was satisfied with the plaintiffs' explanation and accepted the plaint on re-presentation after excusing the delay. This civil revision petition has been brought by parties, who are named as defendants in the plaint. The suit has not yet been numbered. Because the plaintiffs committed an indiscretion in giving notice to them of their application for excusing the delay was considered by the court below after notice to the parties, who figured as defendants, naturally those individuals had the opportunity of making their representation against the plaint being re-presented after delay. The court below having heard them had gone into their objections only to over-rule them. The fact that the court below had gone into their objections itself might be regarded as a good ground for dismissing the present civil revision petition filed by
those parties, for that shows that the court did not shut them out. But I wish to affirm the order of the lower court on a broader principle, a principle which goes counter to the procedure adopted by the court in this case." It was further held that, "the parties proposed to be added as defendants to the suit, in my judgment, do not have any locus standi to figure in the preliminaries before the suit gets numbered and suit summons goes to them. Admission of the plaint is the court's job. The condonation of the delay in re-presentation of the plaint is strictly a matter between the court, on the one hand, and the suitor, who has filed the proceedings on the order. At that stage and for those limited purposes, persons, who are proposed as the opposite parties in the plaint really have no locus standi. They cannot have any say in the matter of delay or its condonation.
9. A similar question came up for consideration before the Supreme Court in Collector, Land Acquisition, Anantang v. Katiji , while considering the provisions of Section 5 of the Limitation Act, the Supreme Court held as under:
The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits." The expression "sufficient cause employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other
courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:
S(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter 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 days' 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 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 justice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
10. But, however in M. Subramania Mudaliar v. Janardhanam (1994)1 M.L.J. 152 a Division Bench of this Court, while considering the request to condone the delay of six years in re-presentation, held that the reasons given by the Junior advocate for condonation of delay in re-presentation of six years are not convincing. Therefore the delay was not excused.
11. The above decision was rendered on the facts and circumstances arising in that case. In the present case, there was a delay of 633 days in re-presenting the plaint. The advocate for the plaintiff filed an affidavit stating that the plaint in question along with other papers, was wrongly returned to one of his clients inadvertently. The person, who took away the plaint in the present case returned back the papers after he came to know that he has wrongly taken away the plaint belonging to Nedungadi Bank. Immediately the advocate for the plaintiff re-presented the plaint with a petition to condone the delay in re-presentation. A supporting affidavit was also filed by the person, who took away the plaint along with his papers stating that after he found that the plaint belonging to Nedungadi Bank was returned to him wrongly, he returned back the said plaint to his advocate. The reasons given by the plaintiff's advocate were accepted by the trial court and the delay in re-presentation was excused. However, this order was passed by the lower court after issuing notice to the defendants in the plaint and after hearing them. Since the notices were sent to the defendants and an order was passed after hearing them, they came forward with the present revision, being aggrieved over the order passed by the trial court in excusing the delay in re-presentation. Therefore, it cannot be said that the revision filed by the petitioners herein is not maintainable If the lower court wants to dispose of the application filed to condone the delay in representation, it could have done so without notice to the defendants
in the un-numbered plaint, since the condonation of delay in re-presentation is a matter between the court and the plaintiff. But the lower court thought fit to issue notice to the defendants in the unnumbered plaint and after hearing them a final order was passed in condoning the delay, accepting the reasons given by the counsel for the plaintiff. Under such circumstances, I consider that there is no infirmity in the order passed by the trial Court in condoning the delay in re-presenting the plaint. Accordingly, this Court does not want to interfere with the order passed by the lower court in I. A. No. 199 of 1987. 12. In the result, the order passed by the trial court in I.A. No. 199 of 1987 in condoning the delay in
representing the plaint is in order and this civil revision petition is dismissed. No costs.
S. Mahalingam And Ors. vs Nedungadi Bank Limited, ... on 28 December, 1995
Indian Kanoon - http://indiankanoon.org/doc/402007/ 4
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