@JUDGMENTTAG-ORDER
R. Banumathi, J.@mdashThis revision is directed against the order and decreetal order dated 4.10.2002 made in I.A. No. 21495/2000 in O.S. No. 50/1986 on the file of the II Assistant City Civil Court, Chennai, dismissing the application filed u/s 5 of the Limitation Act, declining to condone the delay of 3,290 days in filing the petition to set aside the abatement caused due to the death of the Petitioner in I.A. No. 8353/1991. The legal heirs of the deceased Inderchand Bothra are the Revision Petitioners.
2. Relevant facts could briefly be stated thus :
O.S. No. 50/1986.-- The Respondent has filed the suit for specific performance of contract relating to the house property in D. No. 974 Appavoo Mudali Street, Alandur. Case of the Plaintiff is that the deceased Inderchand Bothra had entered into an agreement of sale with the Plaintiff on 7.12.1985 to sell the suit property to the Plaintiff for Rs. 74,000 and received an advance of Rs. 5000 from the Plaintiff on 7.12.1985. The Defendant has agreed to complete the Sale Deed within ninety days from the date of agreement. In part performance of the contract, the Plaintiff is in possession and enjoyment of the suit property. In spite of repeated demands and issuance of legal notice, the Defendant had failed to comply with the Plaintiff''s legitimate request in executing the Sale Deed. The Plaintiff has always been ready and willing to complete the sale. Hence the Plaintiff has filed the suit for specific performance of contract.
3. The Defendant-Inderchand Bothra has filed the Written Statement denying the execution of the suit agreement of sale. According to the Defendant, the Plaintiff has been a tenant under the Defendant. In order to avoid eviction from the demised property, the Plaintiff has filed the suit with false allegations. The Defendant has never executed any agreement of sale. The alleged agreement of sale dated 7.12.1985 is a forged one. In such circumstances, the Plaintiff is not entitled to the relief of specific performance of contract.
4. I.A. No. 5383/1990 -- Sub Court, Poonamallee:
I.A. No. 8353/1991 -- City Civil Court, Chennai:
When the suit was posted in the list on 15.2.1989, the Defendant was called absent; set ex parte and ex pane decree was passed in favour of the Plaintiff on 15.2.1989. Stating that the date was wrongly noted as 15.3.1989 instead of 15.2.1989 and that due to that mistake he could not appear on the hearing date on 15.2.1989, the Defendant has filed this application under Order 9, Rule 13, C.P.C. to set aside the ex parte decree.
5. The Plaintiff/Tenant has filed the counter statement resisting the application. In the meantime, the Plaintiff has also filed E.P. No. 85/1989 for execution of the ex parte decree. In the said execution petition, notice was served upon Inderchand Bothra on 25.10.1989.
6. Tr.C.M.P. No. 11989 and 11991/1990-- These applications were filed to transfer O.S. No. 50/1986 on the file of Sub Court, Poonamallee along with all the applications to another Court of competent jurisdiction - City Civil Court, Madras. Also, application was filed to transfer E.P. No. 85/1989 in O.S. No. 50/1986. By the order of this Court dated 16.11.1990, petitions were allowed, ordering transfer of O.S.No. 50/1986 and I.A. No. 5383/1990 to the City Civil Court. I.A. No. 5393/1990 was renumbered as I.A. No. 8353/1991. E.P. No. 85/1989 was also transferred to City Civil Court, Chennai and renumbered as E.P. No. 1210/1991. In the meantime, the Defendant-Inderchand Bothra died on 13.7.1991. No steps were taken for impleading the legal representatives of the Petitioner/Defendant - Inderchand Bothra in I.A. No. 8353/1991. Since no steps were taken, the said application was dismissed as abated.
7. I.A. Nos. 21494/2000 and 21495/2000.-- These applications have been filed praying to condone the delay of 3290 days in setting aside the abatement caused by the death of Petitioner Inderchand Bothra in I.A. No. 8353/1991 in O.S. No. 50/1986 and to stay all further proceedings in E.P. No. 2762/1997. The Revision Petitioners have alleged that they had no knowledge about I.A. No. 8353/1991. According to them, only when the Petitioners were impleaded as Legal Representatives in E.P. No. 2762/1997 on the file of X Assistant Judge, City Civil Court, Chennai, they came to know that the suit was filed at Sub Court, Poonamallee and subsequently transferred to City Civil Court, Chennai as well as the E.P. The Revision Petitioners are the Legal Representatives of the deceased and are to be impleaded as the Legal Representatives in the application in I.A. No. 8353/1991. The delay in setting aside the abatement caused by the deceased Defendant is neither wilful nor wanton. Hence the Petitioners have filed the application I.A. No. 21495/2000 to condone the delay of 3290 days in filing the application to set aside the abatement cause due to the death of Defendant-Inderchand Bothra.
8. Denying the averments in the affidavit, the Respondent/Plaintiff has filed the counter statement contending that the Petitioners ought to have taken early steps to set aside the ex parte Decree dated 15.2.1989. The Petitioners appeared in E.P. No. 2762/1997. But they did not choose to file the counter. The Executing Court/X Assistant Judge directed the Petitioner to file fair sale deed which was also filed on 2.2.1996. Later, the E.P. was dismissed for default. Subsequently, E.P. No. 2762/1997 was filed and the Revision Petitioners entered appearance but did not file their counter in the said Execution Petition. E.A. No. 608/1990 was filed to set aside the ex parte order against them, which was also dismissed. The petition filed to condone the delay of 3290 days has no substance. The petition has been filed with a view to delay the execution proceedings. The delay is inordinate and the same has not been satisfactorily explained and hence the inordinate delay cannot be condoned.
9. Upon consideration of the averments in the affidavit and the counter statement, the learned Assistant Judge found that no proof has been produced by the Revision Petitioners showing that they had knowledge of the suit only on 22.11.2000. Pointing out that the Revision Petitioners have been served with a notice in the Execution petition even as early as on 25.5.1995, the learned Assistant Judge was of the view that the delay is not properly explained. The Lower Court has also referred to the subsequent execution petition in E.P. No. 2762/1997 in which the Revision Petitioners have entered appearance. The lower Court found that their contention that they had knowledge of the suit only in September 2000, when they received notice from the Court, does not merit acceptance. On the above findings, the learned Assistant Judge declined to condone the delay and dismissed the application filed u/s 5 of the Limitation Act.
10. Aggrieved over the dismissal of the application u/s 5 of the Limitation Act, the Revision Petitioners/proposed parties have filed this revision contending that the Revision Petitioners cannot be mulcted with the responsibility. The learned counsel for the Revision Petitioners inter alia raised the following contentions:
(a) The Revision Petitioners are candid enough in stating about the earlier proceedings and that the Petitioner had no knowledge about the suit O.S. No. 50/1986;
(b) After the death of Inderchand Bothra on 13.7.1991, the Revision Petitioners had no forum to take appropriate steps regarding the suit;
(c) Between 16.11.1990 and 20.9.2000, the records were in transit and the Revision Petitioners could not take appropriate steps;
(d) No mala fide or lack of negligence could be attributed to the Revision Petitioners;
(e) The Revision Petitioners being landlord have no reason to delay the proceedings, when the landlord is pitted against the tenant and taking appropriate steps to evict the tenant/Plaintiff from the demised property.
11. Countering the arguments, the learned counsel for the Respondent/Plaintiff laid much emphasis upon the knowledge of the Revision Petitioners about the execution proceedings particularly E.P. No. 2762/1997. It is submitted that the contention of the Revision Petitioners that they had no knowledge about the suit till 20.9.2000 has no force. Drawing the attention of the Court to the proceedings in the execution petitions, E.P. Nos. 1210/1991 and 2762/1997, the learned counsel for the Respondent has submitted that having entered appearance in the execution proceedings, it is not open to the Revision Petitioners to contend that they have no knowledge of the proceedings. In support of his contention that there cannot be mechanical condonation of delay, the learned counsel for the Respondent Plaintiff has relied upon Ram Nath Sao and Ors. v. Gobardhan Sao and Ors. 2002 (1) CTC 769. Laying emphasis upon the observations of the Supreme Court in the above said decision, the learned counsel for the Respondent has submitted that when the right has been accrued to the party, it cannot easily be upset on the mere contentions advanced.
12. On the above contentions and by perusal of the Impugned Order, and the other materials on record, the following points arise for consideration in this revision:
"a) Whether the contention that the Revision Petitioners were prevented by sufficient cause from making necessary application for substitution as Legal Representatives of deceased Defendant - Inderchand Bothra could be sustained ? and
b) Whether the Impugned Order declining to condone the delay in bringing on the Legal Representatives of the deceased/Defendant suffers from any material irregularity warranting interference ?"
13. The main contention of the Revision Petitioners is that between 16.11.1990 - 20.9.2000, records in the suit were in transit from Sub Court, Poonamallee to City Civil Court, Chennai and they had no knowledge about I.A.No. 8353/1991 and hence they could not take appropriate steps. To appreciate the merits of the contention, it is necessary to refer to certain relevant dates:
3.4.1986 Suit filed
5.1.1987 Written Statement filed
15.2.1989 Suit posted for trial. Defendant''s Advocate did not turn up. Ex
parte Decree passed.
15.3.1989 Petition filed to set aside the ex parte Decree. Numbered as
I.A. No. 5383/1990, Sub Court, Poonamallee. Renumbered as
I.A. No. 8353/1991 in City Civil Court, Chennai.
16.11.1990 Transfer C.M.P. No. 11989/1998 allowed and the suit and
E.P. No. 85/89 (E.P. No. 1210/1991) ordered to be transferred
to City Civil Court, Chennai
13.7.1991 Defendant died
22.11.2000 Notice received from City Civil Court in O.S. No. 50/1986
December 2000 I.A. Filed.
14. By a careful consideration of the dates and events, this Court is of the view that lack of diligence cannot be attributed to the Revision Petitioners. Tr.C.M.P. No. 11989 and 11991/1990 were allowed by the High Court on 16.11.1990. Transfer C.M.Ps. were allowed solely on the ground that the Defendant was aged 89 years and that he has difficulty in travelling to Sub Court, Poonamallee. Mainly for the convenience of the Defendant/Inderchand Bothra, the suit O.S. No. 50/1986 and the applications thereto along with E.P. No. 85/89 were ordered to be transferred to City Civil Court, Chennai. After the transfer was so ordered, I.A. No. 5383/1990 (petition filed under Order 9, Rule 13, C.P.C.) was also transferred to the City Civil Court and renumbered as I.A. No. 8353/1991. The application was pending for some time. In the meantime, Inderchand Bothra died on 13.7.1991. Since the steps were not taken, I.A. No. 8353/1991 was dismissed as abated. From the City Civil Court Chennai, notice was sent to the Defendant informing that O.S. No. 50/1986 has been transferred to City Civil Court Chennai and the case has been posted on 20.9.2000 and directing the Plaintiff and the Defendant to appear in the City Civil Court Chennai. It was only thereafter, I.A. No. 21495/2000 was filed to condone the delay of 3290 days in filing the application to set aside the abatement caused due to the death of the Defendant.
15. Opposing the application, on behalf of the Respondent/Plaintiff it is mainly contended that the Revision Petitioners entered appearance in the Execution Proceedings and that they had knowledge about the ex pane decree passed on 15.2.1989 and the application I.A. No. 8353/1991 and that they have deliberately not taken any steps in the application. As noted earlier, E.P. No. 85/89 on the file of the Sub Court, Poonamallee was transferred to the City Civil Court, Chennai and renumbered as E.P. No. 1210/1991. In the execution petition, the Revision Petitioners - Tarachand Bothra and Hirabai were brought on record as Legal Representatives of deceased Inderchand Bothra as per order in E.A. No. 6011/1994 dated 27.2.1995. In the Execution petition, the second Respondent Tarachand Bothra had entered appearance through the counsel. Since the Plaintiff had not taken steps in E.P. No. 1210/1991, by the order dated 12.9.1996, the execution petition was dismissed for default for not taking steps.
16. E.P. No. 2762/1997.-- This execution petition was filed against the Revision Petitioners-Tarachand Bothra and Hirabai directing them to execute the sale deed, as per the exparte decree dated 15.2.1989. In E.P. No. 2762/1997, the Revision Petitioners/Respondents entered appearance through their counsel. But, for non-filing of the counter Statement, they have been set ex parte in the execution petition. Thereafter, E.A. No. 608/2000 was filed by the Revision Petitioners to set aside the ex parte order passed against them. E.A. No. 608/2000 was dismissed on 9.10.2000. Thereafter, the execution petition was ordered for production of draft Sale Deed. When the execution petition was pending at that stage, stay of all further proceedings was granted by the VII Additional City Civil Court.
17. Laying emphasis upon the appearance of the Revision Petitioners in the execution proceedings, on behalf of the Respondent/Plaintiff, it is mainly contended that the Revision Petitioners had every knowledge of the execution proceedings as well as the application I.A. No. 8353/1991. It is urged that when the Revision Petitioners have been seriously pursuing the matter in the execution petition, they had no impediment in proceeding further in the interlocutory application and that they have deliberately not taken appropriate steps in the interlocutory application. This contention though appears to be correct, it does not merit acceptance. No negligence or indifference could be attributed to the Revision Petitioners merely due to non-taking of steps in the I.A. No. 8353/1991. As stated earlier, I.A. No. 5383/1990 - application under Order 9, Rule 13, C.P.C. has been transferred to the City Civil Court, Chennai and renumbered as I.A. No. 8353/1991. The Defendant/Inderchand Bothra died during the transit of the bundle. Quite probably the Revision Petitioners might have been ignorant of the proceedings in the interlocutory application. It may be that they have entered appearance in the execution proceedings; but there is nothing to suggest that they had knowledge about the interlocutory application - I.A. No. 8353/1991. Had they been more careful in verifying the records from the office of the City Civil Court, perhaps they might have come to know about the petition in I.A. No. 8353/1991. The Revision Petitioners cannot be faulted for not exercising such extra care and vigilance.
18. The Defendant died on 13.7.1991. Under Article 120 of the Limitation Act, application to implead the Legal Representatives of the deceased Defendant/Petitioner ought to have been filed within ninety days. The Revision Petitioners were prevented from making necessary application for impleading themselves as the Legal Representatives, within the prescribed period due to the ignorance of the pendency of I.A. No. 8353/1991.
19. No doubt, there is enormous delay of 3290 days in filing the application to set aside the abatement. It is not the number of days that counts. The benefit of Section 5 of the Limitation Act liberal construction of the expression "sufficient cause" is to be extended to the application filed under Order 22, Rule 4, C.P.C. for the substitution of the Legal Representatives of the deceased/Defendant/Petitioner in I.A. No. 8353/1991. While condoning the delay in presenting the application for setting aside the abatement, and for bringing the Legal Representatives on record in
"The Court would not adopt unduly rigid or over strict view in construing whether sufficient cause has been established or not. The Court also should not readily accept the submissions made but has to scrutinise each case on the facts whether sufficient cause has been established or not. In this case, admittedly intimation was given on the last day of the 90th day from the date of death of the deceased-Defendant. Obviously he wants to avail of full period of limitation prescribed to see that the application is filed beyond ninety days. It should also be noted that the details of legal representatives have not been given. In this case on the above facts, admittedly a report was submitted to the Petitioner on 15.9.1976 informing the names of the proposed Respondent to be the LRs entitled to represent the estate of the deceased-proprietor of the first Defendant firm. On the next day, i.e., On 16.9.1976 an application to that effect has been filed. I am satisfied on the facts in this case that the Petitioner has established sufficient cause for not bringing the LRs on record within the prescribed period of limitation."
Application being on transit and the death of the Defendant and the Revision Petitioners could not have had knowledge about the pendency of I.A. No. 8353/1991 are sufficient cause for the Revision Petitioners'' inability to apply for impleading themselves as parties in the application. Hence the delay in filing the application to set aside the abatement is to be condoned.
20. Submitting that acceptance of explanation should be the rule and refusal is to be exception, the learned counsel for the Revision Petitioners relied upon Ram Nat Sao and Ors. v. Gobardhan Sao and Ors., 2002 (1) CTC 769. Referring to the earlier decision of the Supreme Court,
"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22, Rule 9 of the Code or any other similarly provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a strait-jacket formula or accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party."
The observations of the Supreme Court was not kept in view by the lower Court. The lower Court erred in declining to condone the delay by adopting technical view.
21. The learned counsel for the Respondent/Plaintiff has also placed reliance upon the decision Ram Nat Sao and Ors. v. Gobardhan Sao and Ors. 2002 (1) CTC 769 in support of his contention that the Court cannot condone delay which would defeat the valuable right accrued to the opponent. The learned counsel for the Respondent/Plaintiff has submitted that though the Decree is of the year 1989, the Plaintiff is unable to enjoy the fruits of the Decree in view of the dilatory tactics adopted by the Revision Petitioners. This contention has no merits. Even in the above said decision, the Supreme Court has observed: "While considering the matter, the Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way". In this case, it is relevant to note that the suit property bearing D.No. 974, Appavu Mudali Street is a valuable property situated in Alandur, Saidapet Taluk. Case of the Plaintiff is that the Defendant Inderchand Bothra entered into an agreement of sale agreeing to sell the suit property for a sum of Rs. 74,000 and he received an advance of Rs. 5,000. The Defendant has taken a definite plea of forgery, denying the execution of the said agreement of sale and according to the Defendant, the Plaintiff was only a tenant under him. In the facts and circumstances of the case, prima facie, there is reason to presume that the Plaintiff may try to retain the suit property. In consideration of the plea set-forth by both parties, fairness requires that opportunity is to be given to the Legal Representatives of the deceased/Defendant to set forth their defence and contest the suit. In consideration of the delay in filing the application and in the light of the contentious points urged by the Respondent, interest of justice would be met by directing the Revision Petitioners to pay a cost of Rs. 2,500 (Rupees Two Thousand and Five Hundred only) to the Respondent Plaintiff as cost in condoning the delay.
22. Liberal construction of Section 5 is to be extended to an application filed under Order 22, Rule 9, C.P.C. to set aside the abatement. Where sufficient cause is shown in not making the application for bringing on record the Legal Representatives of the deceased/Defendant, the Court is bound to condone the delay in filing the application to set aside the abatement. The lower Court has not appreciated the contentions of the parties in the light of facts and circumstances emerging. The Impugned Order declining to condone the delay in filing the application to set aside the abatement cannot be sustained. Setting aside the order of the II Additional Judge, made in I.A. No. 21495/2000 in O.S. No. 50/1986 on the file of the II Assistant City Civil Court, Chennai this revision is to be allowed and the delay is to be condoned.
23. For the foregoing reasons, the order made in I.A. No. 21495/2000 in O.S. No. 50/1986 (dated 4.10.2002) by the file of the II Assistant City Civil Court, Chennai, is set aside and this revision is allowed. Consequently, C.M.P. No. 16705 of 2002 is dismissed as unnecessary. The delay in filing the application to set aside the abatement caused due to the death of deceased Defendant is condoned on payment of cost of Rs. 2,500 (Rupees Two Thousand and Five Hundred only) in the lower Court within one month from the date of receipt of a copy of this order. On such payment of cost, and on filing of necessary memo, the learned II Additional Judge is directed to take the application to set aside the abatement on file and dispose of the same in accordance with law.
