(Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 12.04.2006 passed by the Additional District Munsif, Kanchipuram in I.A.No.71 of 2006 in O.S.No.204 of 1998, as stated therein.)

This Civil Revision Petition is directed against the order dated 12.04.2006 passed by the Additional District Munsif, Kanchipuram in I.A.No.71 of 2006 in O.S.No.204 of 1998, condoning the delay of 563 days in filing the Petition to set aside the exparte decree on payment of costs of Rs.750/-. The Plaintiff is the Revision Petitioner.

2. Brief facts are as follows:- Revision Petitioner/Plaintiff has filed the Suit against the Respondent/Defendant in O.S.No.204 of 1998 on the file of District Munsif Court, Kancheepuram for recovery of a sum of Rs.68,800/-. Suit summons served to the Defendant and suit was posted for appearance of the Defendant on 20.11.1998. On 20.11.1998, the Defendant was set exparte. The Respondent/Defendant had filed I.A.No.858 of 1998 under O.9 R.7 C.P.C to set aside the exparte order and the same was allowed on 27.11.1998. The Suit was posted for filing of the Written Statement on various dates from 27.11.1998 to 30.06.2003. Since the Defendant has not filed the Written Statement for nearly four years, on 30.06.2003, exparte decree was passed.

3. The Plaintiff/Decree Holder filed E.P.No.41 of 2004 for recovery of the amount by arrest of the Defendant. The case was posted for hearing on 22.03.2004. The Respondent/Defendant did not appear before the Court and he was set exparte on 22.03.2004. On Application filed by Respondent/Defendant, exparte order of arrest was set aside. Again, the Respondent/Defendant was taking time for filing counter in the Execution Proceedings. At that stage, the Respondent has filed I.A.No. 71 of 2005 under Section 5 of the Limitation Act to condone the delay of 563 days in filing the Application to set aside the exparte decree dated 30.06.2003.

4. The Revision Petitioner/Plaintiff resisted the Application by filing elaborate Counter Statement narrating the dates and events.

5. Observing that though the Defendant has not properly explained the delay, to afford an opportunity to advance substantial justice, the Trial Court condoned the delay and allowed the Application, which is challenged in this Revision Petition.

6. Learned counsel for the Revision Petitioner/Plaintiff has contended that despite opportunity given to the Defendant for nearly four years, the Defendant had not chosen to file the Written Statement. Taking me through the dates and events, learned counsel for the Petitioner further submitted that it would only show that the Defendant is filing applications one after another only with a view to drag on the proceedings. It was submitted that in condoning the delay of 563 days by the lower Court, there is improper exercise of discretion and the Impugned Order is to be set aside.

7. Submitting that the Respondent/Defendant is a Government servant and was transferred from one place to another and hence, he could not contest the matter, learned counsel for the Respondent has submitted that with a view to afford opportunity to the Respondent / Defendant and to do substantial justice the Court below has rightly condoned the delay and there is no reason calling for interference.

8. In condoning the delay of 563 days in filing the Application to set aside the exparte decree, whether there is proper exercise of discretion is the only point arising for consideration in this Revision.

9. Of course, it is the consistent view taken by the Supreme Court in various decisions that "sufficient cause" appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bonafide on the part of the Applicant.

10. At the same time, the discretion must not be exercised in any arbitrary or vague or fanciful manner; but must be exercised like any other judicial discretion with vigilance and circumspection. Delay cannot be condoned as a matter of judicial generosity. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay.

11. The true test is whether the applicant has acted with due diligence. From the dates and events narrated above, it is seen that the Defendant was set exparte on 20.11.1998. Only on Application filed under O.9 R.7 of C.P.C in I.A.No.858 of 1998, exparte order was set aside. Thereafter, time was granted to the Defendant for nearly four years to file the Written Statement, but the Defendant had not chosen to file the Written Statement and exparte decree was passed on 30.06.2003.

12. After Execution Petition was filed for arrest of Defendant, again after service of Notice, the Defendant did not appear in the Court and hence, he was set exparte in the Execution Proceedings. The Defendant had filed I.A.No.284 of 2004 under O.21 R.106 C.P.C to set aside the exparte order and the same was allowed. The Respondent/Defendant was taking time for filing counter in the Execution Proceedings and only at that stage, I.A.No.71 of 2005 was filed to condone the delay of 563 days. E.A.No.284 of 2004 was filed by the Respondent/Defendant under O.21 R.106 C.P.C way back on 22.03.2004. He had knowledge of the exparte decree even at that time. But, at that stage, the Defendant had not chosen to file any Application under O.9 R.13 C.P.C. He was gaining time to file the Counter Statement. Even then, no steps had been taken under O.9 R.13 C.P.C. No acceptable explanation is forthcoming for not taking steps. In the Impugned Order, even the lower Court has observed that the Defendant had not given any proper explanation for not filing the Petition from 02.04.2004 to 14.02.2005. However, the lower Court has condoned the delay observing that in the process of dispensation of justice, the parties must be given sufficient opportunities.

13. Deprecating the practice of setting aside the exparte decrees in casual manner, in the decision reported in Srinivasalu ..Vs.. Krishnammal (100 L.W. 666), Chief Justice M.N.Chandurkar, J., has held as under:-

"...The present order allowing the petition for condonation of delay in filing the Petition for setting aside the exparte decree appears to be obviously the result of a very liberal attitude and casual manner in which exparte decrees are being set aside. I had two occasions earlier to refer to the casual manner in which exparte decrees are passed and they are subsequently set aside. The present case is a clear illustration which justifies the above observations. It is not possible to absolve the courts from the blame for the tendency which is growing in the litigants to take exparte decrees very casually and at leisure make applications for setting aside them on bald and general averments which are rarely scrutinised, with care which such applications and affidavits deserve, having regard to the stringent provisions of S.5 of the Limitation Act. In my view, the learned Judge was clearly in error in condoning the delay in filing the Petition for setting aside the exparte decree. The order of the learned Judge, is, therefore, set aside. ...."

14. As rightly pointed out by the learned counsel for the Petitioner, while considering the plea relating to affording an opportunity to advance substantial justice, the right accrued to the other side ought to be kept in view. When there is deliberate delay, the Respondent herein cannot be heard to plead that substantial justice deserve to be preferred as against technical consideration.

15. In the decision reported in Sundar Gnanaolivu rep. By his Power of Attorney Agent ..Vs.. Rajendran Gnanavolivy rep. By its Power of Attorney Agent (2003 (1) L.W. 585), a Division Bench of this Court has held as under:-

"...14.A. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd., Tuticorin ..Vs.. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr.Justice M.Srinivasan as he then was, in paragraphs 14 and 17 which read as under:-

14....... If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the Respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. 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.

17..... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. 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 over his head indefinitely for a period to be determined at the whims and fancies of the opponent...."

16. As stated earlier, delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party. Money suit was filed way back in 1998 and Revision Petitioner/Plaintiff has been pursuing the matter for nearly 7 to 8 years. The matter could not reach finality because of one application or another filed by the Respondent/Defendant. The party claiming indulgence must prove that he has reasonable diligent in prosecuting the matter. This test for condoning the delay is not satisfied in this case. Liberal exercise of jurisdiction under Section 5 of thewould cause prejudice to the Plaintiff/Decree Holder, who has been pursuing the money suit for quite a long time. In condoning the delay, there is improper exercise of discretion and therefore, the Impugned Order cannot be sustained.

17. In the result, the impugned order dated 12.04.2006 passed by the Additional District Munsif, Kanchipuram in I.A.No.71 of 2006 in O.S.No.204 of 1998 is set aside and this Civil Revision Petition is allowed. No costs.