Saturday, September 7, 2013

you can get even 883 days delay condoned!! use this fact & case IF UR wife has exparte decree against you!!



you can get even 883 days delay condoned!! use this fact & case IF UR wife has exparte decree against you!!
   
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the Honourable supreme court of India says and we quote "........It is axiomatic that  condonation of delay is a matter of discretion of the  court Section  5 of  the Limitation Act  does not say  that such discretion can be exercised only if the delay is within a certain limit. Length  of delay is  no matter, acceptability of  the explanation is the only criterion. Sometimes delay of  the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation  thereof is satisfactory. ..........."

and 
 
".............Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of  providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and  the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be  fixed  for each remedy. Unending  period  for launching the remedy may lead to unending uncertainty  and consequential anarchy. Law of limitation is thus founded on public policy.  It is enshrined in  the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period  be putt to litigation). Rules of limitation are not meant to destroy  the right of  the parties. They  are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
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Read this judgment and use it IF you wish to set aside wife's ex parte decree !!!
 
 
*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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Supreme Court of India 
N. Balakrishnan vs M. Krishnamurthy on 3 September, 1998 
Author: Thomas 
Bench: S Ahmad, K Thomas. 
   

PETITIONER: N. BALAKRISHNAN.
   
Vs.
   
RESPONDENT: M. KRISHNAMURTHY.
   
DATE OF JUDGMENT: 03/09/1998
   
BENCH:  S.SAGHIR AHMAD, K.T. THOMAS.,
   
ACT:
   
HEADNOTE:
   
JUDGMENT:
   
JUDGEMENT
   
Thomas J.
   
Leave granted.
   
Explanation for the apparently inordinate delay in moving an application was accepted by the trial court under Section 5 of the Limitation Act, 1963, but the High Court in revision reversed the finding and consequently dismissed the motion. That order of the High Court has given rise to these appeals.
   
Facts barely needed for these appeals are  the following:
   
A suit  for declaration of title and ancillary reliefs  filed by the  respondent was decreed ex-parte on 28.10.1991. Appellant, who was defendant in the suit, on coming to know of the decree moved an application to set it aside. But the application was  dismissed for  default on 17.02.1993. Appellant moved for having that order set aside only on August 19, 1995 for which a delay of 883 days was noted. Appellant also filed another application to condone the delay by offering an explanation which can be summarized thus:
   
Appellant engaged an advocate (one Sri  MS Rajith) for making the motion to set the ex-parte decree aside but the advocate failed to inform him that the application  was dismissed for default on 17.2.1993.  When he got summons from the execution side on 5.7.1995 hye approached  his advocate but he was told that perhaps execution proceedings would have been taken by the decree holder since there  was no stay  against such execution proceedings. On the advice of the same advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocate's fees and other incidental expenses. But the fact is that the said advocate did not do anything in the court even thereafter - On 4.8.1995 the execution warrant was issued by the court and he became suspicious of the conduct of  his advocate and hence rushed to the court from where he got the disquieting information that his application to set aside the ex-parte decry stood dismissed for default as early as 17.2.1993 and that nothing was done in the court thereafter on his behalf. He also learned that his advocate has left the profession and joined as legal assistant of MS Maxworth Orcheads India Limited. Hence he filed the present application for having the order dated 7.2.1993 set aside. Appellant did not stop with filing the aforesaid application. He also moved the District Consumer Disputes Riderless Forum, Madras North ventilating his grievance and claiming a compensation of rupees on lakh as against  his erstwhile advocate. The said forum  passed  final order directing the said advocate to pay a compensation of  Rs. Fifty thousand to the appellant besides a cost of Rs. Five Hundred.
   
Though,  the trial court was pleased to accept the aforesaid explanation and condoned the delay a single Judge of the  High Court of Madras who heard the revision, expressed the view that the delay of 883 days in filing  the application has  not been properly explained. Hence the revision was allowed and trial court order was  set aside. An application for review was made, but that was dismissed. Hence these appeals.
   
The reasoning of the learned single Judge of  the High Court for reaching the above conclusion is that the affidavit filed by the appellant was silent as to why he did not meet his advocate for such a long period. According to the learned single Judge:
   
"If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then oily it could have been said that due to the conduct of the counsel the party should not be penalised." Learned single judge then observed that when  the party is in utter negligence, he cannot be permitted to blame the counsel. Learned single judge has further remarked that:
   
"A perusal of the affidavit does not  reveal  any diligence on the part of the respondent in the conduct of the proceedings. When already the suit has been decreed ex-parte, the respondent ought to have been more careful and diligent in  prosecuting the matter further. the conduct of the respondent clearly reveals that at any point of time, he  has not relished his responsibility as a litigant." 

Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far  from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check  up the progress of  the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
   
It is axiomatic that  condonation of delay is a matter of discretion of the  court Section  5 of  the Limitation Act  does not say  that such discretion can be exercised only if the delay is within a certain limit. Length  of delay is  no matter, acceptability of  the explanation is the only criterion. Sometimes delay of  the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation  thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result  of positive exercise  of discretion and  normally the superior court  should  not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela.  In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court  to come to its own finding even untrammeled by the conclusion of the lower court.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
   
The reason for such a different stance is thus:  The primary  function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
   
Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of  providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and  the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be  fixed  for each remedy. Unending  period  for launching the remedy may lead to unending uncertainty  and consequential anarchy. Law of limitation is thus founded on public policy.  It is enshrined in  the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period  be putt to litigation). Rules of limitation are not meant to destroy  the right of  the parties. They  are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
   
A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate.  This Court has held that the words "sufficient cause" under Section 5 of the Limitation  Act should receive  a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain  Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on  the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be  a salutary guideline that  when courts condone the delay due to laches on the part of the applicant the court shall compensate  the opposite party for his loss.
   
In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction.  Nonetheless,  the respondent must be compensated particularly  because the appellant has secured a sum of Rs. Fifty thousand from  the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.
   
The appeals are disposed of accordingly.
   
   



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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist