K.Pradeep Kumar v. S.Suresh

APPLICATION NO.4336 of 2016 IN C.S.No.544 of 2010 PUSHPA SATHYANARAYANA, J The above application is filed by the applicant / defendant to condone the delay of 2050 days in filing the written statement.

2. The suit is filed for specific performance of the contract by the plaintiff. Admittedly, the suit summons were served on the applicant on 20.07.2010. Even prior to that, notice was served on the defendant in Application No.662 of 2010. In the meanwhile, the plaintiff passed away on 21.06.2014 and the applications were filed by the legal heirs to set aside the abatement and to bring the legal heirs on record in the suit. While so, the defendant himself was affected by Rheumatoid Arthritis and was bedridden for more than 10 months and was taking native treatment in home town in Kerala. Therefore, he could not reach his counsel in Chennai and file the written statement on time. In the meanwhile, the application to set aside the abatement caused due to the death of the plaintiff, was ordered and the plaint was amended. The amended plaint was made available to the defendant on 10.08.2016.

3.

It is stated that on a perusal of the above amended plaint, it was found that while filing the amended plaint, instead of long and short cause title to be amended as allowed by this Court, the plaintiff had included additional pleading by including the prayer for alternative relief of return of alleged advance amount. As there was total variation in the pleadings in the amended plaint copy, the applicant had taken out an another Application in A.No.4337 of 2006 to strike off the pleadings. In so far as the delay in filing written statement is concerned, the applicant/defendant relied upon the endorsement of the learned Master, who has stated that the sole defendant remained unserved. However, going by his own admission, the applicant was served on 20.11.2010. Therefore, there is a delay of 2050 days in filing the written statement.

4.

The only issue that has to be seen is whether the applicant has shown sufficient cause to condone the delay.

5.

The applicant though aware of the pendency of the suit even at the interlocutory stage itself, ought to have been careful from the beginning in approaching the Court within prescribed time. The reason given by the

applicant is that he was taking native treatment for his ailment and that he was not in a position to walk and meet his counsel in Chennai. No doubt, mere technicalities should not come in the way of rendering justice and it is the duty of the Court to consider whether the reasons assigned for the delay of 2050 days would be 'sufficient' cause within the meaning Section 5 of the Limitation Act. The applicant herein, though should not have been negligent, was not lacking in bona fides in giving the explanation for the delay. It is reiterated that sufficient cause for delay is liberally viewed in a pragmatic manner to subserve the ends of justice. The discretion to condone the delay should be based on not the length of the delay but on sufficient and satisfactory explanation.

Unless the respondent is able to show mala-fides of the applicant in not approaching the Court during the period of limitation, as a general rule, delay may be condoned. The plaintiff also attributed to the delay as the sole plaintiff had died and the suit was allowed to be abated and it was set aside only in January 2015. Thereafter, there was a confusion in the amended plaint filed, as the new pleadings were sought to be added without permission of the Court, which forced the defendant to file an application to strike off the pleadings.

PUSHPA SATHYANARAYANA, J srn 6.

Considering the entire facts, this Court is of the view that the benefit should be given to the defendant by condoning the delay in filing the written statement and permit him to contest the suit. However, for the inconvenience caused to the plaintiff, the same may be compensated by awarding costs for allowing the application.

7.

Accordingly, this application is allowed on condition that the defendant shall pay a sum of Rs.3,000/- (Rupees three thousand only) to the plaintiff within a period of two weeks from the date of receipt of a copy of this order.

05.10.2016 (2/2) srn APPLICATION NO.4336 of 2016 IN C.S.No.544 of 2010