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M/s. Shivsu Microtek Bottling Systems Private Limited Represented by its Senior Vice President v/s S. Annapoorani, Represented by her Power Agent N. Shanmugham

    CRP (NPD) No. 3096 of 2012 & M.P. No. 1 of 2012

    Decided On, 02 August 2016

    At, High Court of Judicature at Madras


    For the Petitioner: M.L. Ramesh, Advocate. For the Respondent: No Appearance.

Judgment Text

(Prayer:Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the order and decreetal order passed in I.A.No.316 of 2011 in O.S.No.55 of 2003, dated 09.01.2012, on the file of the Subordinate Judge, Poonamallee.)

1. The petitioner has filed this Civil Revision Petition to set aside the fair and decreetal order of the Learned Subordinate Judge, Poonamalle made in I.A.No.316 of 2011 in O.S.No.55 of 2003, dated 09.01.2012 by allowing this revision.

2. The case of the revision petitioner Company is that the respondent herein filed the above suit in O.S.No.55 of 2003 as against the revision petitioner, for recovery of money. Originally, the revision petitioner company was then a tenant under the respondent herein. There arose a serious dispute between the revision petitioner and the respondent and Rent Control Proceeding was also came to be filed. Finally consensus was arrived between them, in furtherance of which the revision petitioner handed over the key of the premise and also paid an amount of Rs.1,03,674/- as full and final settlement towards rental arrears. However, the above suit came to be filed by the respondent, as if there were rental arrears to the tune of Rs.25,000/- to be paid by the revision petitioner. Hence the revision petitioner appeared through Counsel before the Trial Court and filed a detailed Written Statement denying the claim of the respondent. One of the employee namely Satheesh Kumar was entrusted to look after the suit proceedings on behalf of the petitioner company.

3. Thereupon the revision petitioner was under a bonafide impression that both his counsel as well as Mr. Satheesh Kumar would look after the case. However, on receipt of a notice dated 01.03.2011 from the Trial Court in execution proceedings in E.P.No.452 of 2011, the revision petitioner was shocked to know that their company suffered an Ex-parte Decree dated 10.09.2007 in the above suit in O.S.No.55 of 2003. On verification it was found that the suit came to be decreed Ex-partly due to the non appearance of the revision petitioner on 05.09.2007. Further the revision petitioner company found that since the said Satheesh Kumar resigned out of their company, there was a failure on his part to intimate the suit status. When the revision petitioner company approached their earlier counsel to know about the suit proceedings, it was informed by their counsel that he is not in a position to conduct the suit having shifted his practice to Chennai. Therefore engaging a new counsel, the revision petitioner immediately filed an application to set aside the Ex-Parte Decree dated 10.09.2007 before the Trial Court. Though the said application was filed in time, within limitation period (i.e) from the date of knowledge of the Ex-parte Decree, with abundant caution an application in I.A.No.316 of 2011 was filed by the revision petitioner U/section 5 of the Limitation Act to condone the delay of 1248 days in filing the application to set aside the Ex-Parte Decree. However, the learned trial Judge, without appreciation of the fact that the delay is neither willful nor wanton, but erroneously has dismissed the revision petitioner’s application in I.A.No.316 of 2011. The said order is impugned herein.

4. I heard Mr.M.L.Ramesh, learned counsel appearing for the petitioner and there was no representation on behalf of the respondent and perused all the records.

5. The learned counsel for the revision petitioner would submit that the non appearance of the petitioner on 05.09.2007 and 10.09.2007 is neither wanton nor willful, but the same was due to the failure of their employee namely Satheesh Kumar to inform to the petitioner company regarding the ex-parte decree, who was entrusted to look after the suit proceedings. The revision petitioner was under a bonafide impression that both his counsel before the Trial Court, as well as their employee Mr.Satheesh Kumar would look after the case. Only on receipt of the notice from the Trial Court dated 01.03.2011 in the execution proceedings in E.P.No.452 of 2011, the revision petitioner got the Knowledge of the Ex-parte Decree dated 10.09.2007. That apart the revision petitioner’s counsel has informed that since he shifted his practice to Chennai, he is not in a position to conduct the suit. Thus the non appearance of the revision petitioner is only because of the failure on the part of the above said two persons and the revision petitioner is always ready to conduct the suit.

6. Per contra, the learned counsel for the respondent submitted that the reasons stated by the revision petitioner company are false and unsustainable. The revision petitioner company cannot blame his Counsel or his erstwhile employee for their non appearance, whereas such non appearance is wanton and willful with a view to protract the suit proceedings.

7. It reveals from the records that the learned trial Judge has dismissed the application by holding that the act of the revision petitioner in not contacting his counsel for about three and half years i.e the period between 10.09.2007 the date of ex-party decree and 01.03.2011 the date of receipt of notice in Execution proceedings is unsustainable and cannot be excused. Further it is held that the revision petitioner would not disown its responsibility by merely blaming its employee or counsel.

8. No doubt that a party to the litigation should be in touch and should update himself with the current status of the Lis, whereas it is obvious at the same time it is the duty of the counsel to communicate the suit proceedings to their clients. Admittedly in the case on hand, it is noticed that the written statement was filed by the revision petitioner and at all hearings the revision petitioner is being represented by its counsel, excepting on 05.09.2017 and 10.09.2007. Further the reason sated by the revision petitioner that its employee having left the company failed to instruct the suit status cannot be ignored or rejected, since the revision petitioner being a company/ entity would contain specific persons/employees assigned with specific Tasks. Therefore in the interest of justice this Court is of the opinion that for the error committed by the erstwhile employee of the revision petitioner company, the company as an entity cannot be allowed to suffer an Ex-parte Decree. It is needless to say that the right of the parties shall not be curtailed and they should be given one more opportunity to put forth their case to get a decree after full-fledged trial.

9. At this juncture it is useful to refer the following Judgments dealing with the issue of condone delay application:

In 2016 (5) CTC 117 in Sarasu v. Raviwherein it is held that

'When a Court of Law deals with an Application to condone the delay filed under Section 5 of the Limitation Act, such Application will have to be generally viewed in a liberal and lenient way to do substantial justice between the parties. By projecting an Application to condone the delay as per Section 5 of the Limitation Act, belatedly, no party will file the same with a mala fide intention. If a party files a Delay Condonation Application belatedly, he or she runs a serious risk.

However, if an Application filed under Section 5 of the Limitation Act is allowed by this Court, to advance the cause of substantial justice, then the maximum that can happen is that a party will be allowed to partake in the main arena of legal proceedings and the main cause can be decided on merits. Per contra, if a meritorious matter is thrown out at the threshold or at an early stage the cause of justice will be certainly defeated. In a Condonation of Delay Application filed under Section 5 of the limitation Act, 1963, the length and breadth of the delay is not a material/ relevant factor'.

i) 2007(4) TLNJ 565 (Civil) in the matter of Ramakrishnan Vs The AEEO, Tiruvarur & Ors wherein it was held that ' The term every day’s delay should be explained, should not be viewed in pedantic way and the approach of the Court must be in common pragmatic manner.

ii) 2000-1 L.W.547, In the matter of Amudha Vs S.A.Arumugham & Ors, wherein it was held that the condonation of delay is a matter of discretion of the Court and section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within certain time. The Court has to take into consideration that interests of justice require that the delay must be condoned.

10. In view of the settled legal propositi

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ons, I am of the considered opinion, in the interest of justice and to meet the ends of justice, the delay can be condoned on payment of cost. For the foregoing reasons, the order and decree passed by the trial Court is liable to be set aside. 11. In the result: (a) this Civil Revision Petition is allowed by setting aside the order in I.A.No.316 of 2006 in O.S.No.55 of 2003 dated 09.01.2012 passed by the learned Subordinate Judge, Poonamallee, on condition that the petitioner should pay a sum of Rs.15,000/- to the Mediation Center, High Court, Chennai-600 104 within a period of three weeks from the date of receipt of a copy of this order; (b) on production of the payment receipt within the stipulated period of time, the learned Subordinate Judge, is hereby directed to number the set aside petition and to pass orders within a period of four weeks thereafter. Consequently, connected miscellaneous petition is closed.