R SUBBARAYAN Vs. RAVAIMANI AMMAL

JUDGEMENT

(1.) The contention raised on behalf of the revision petitioner is that the lower Court has not given adequate reasons for condoning the delay of 505 days in filing the application to set aside the ex parte decree in the case. It is submitted further that in the counter filed by the plaintiff (revision petitioner herein) it is specifically stated that the respondent-defendant had eloped with someone and had driven away the revision petitioner from the premises at Durgah, G.S.T. Road, Chengalpattu. It is also pointed out that the lower Court, in paragraph 5 onwards of its order, has dealt with properly the contentions of the revision petitioner (plaintiff) and had excused the delay merely on the ground that the respondent-defendant is a woman. This Court has gone through the order under revision. This Court was also taken through the contents of the contentions raised by the revision petitioner before the lower Court in the petition for condoning the delay.

(2.) It is a well settled principle of law that the judicial discretion vested with the Court in considering the question whether a delay, however small or however huge and enormous it may be, rests with the Court's discretion and it is that discretion that matters at the end. However much evidence may be available explaining each day's delay, yet it is not as if the so-called explanation for each day's delay is one which may stand or may not stand judicial scrutiny. The background against which the question of delay has to be approached is, whether opportunity has to be granted or not to the person who knocks at the doors of the temple of justice for adjudication of the matter that had already been decided ex parte and a conclusion is to be arrived at This backdrop should always be available in the arena of judicial scrutiny. With this background alone, a Court has to approach the question whether the delay is to be condoned or not. Under these circumstances, this Court finds that the lower Court has not gone anyway against the principle of law that the principle of law and equity is given its proper place and followed in the proper perspective in discussing the case put forward by the person who wants the delay to he condoned and the contentions raised by the other party who had the benefit of a decree in his favour ex parte.

(3.) Audi alteram partem has been discussed at pages 91 to 94 of Broom's Legal Maxims, Eighth Edition, as follows :- "It has long been a received rule that no one is to be condemned, punished, or deprived of his property in any judicial proceeding, unless he has had an opportunity of being heard. "A writ of sequestration, therefore, cannot properly issue from the consistory Court of the Diocese to a vicar who had disobeyed a monition from his bishop, without previous notice to the vicar to show cause why it should not issue; for the sequestration is a proceeding partly in poenum, and no proposition is more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him, unless, indeed, the legislature has expressly or impliedly given an authority to act without that necessary preliminary'. "An award made in violation of the above principle may be set aside; and the principle is binding upon the committee of a members' club when they expel a member for alleged misconduct. "No person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it be given to him. 'The laws of God and Man', said Fortescue, J., in Dr. Bentley's case (R. v. Chancellor of Cambridge, (1723) 1 Str 557; per Maule, J., Abley v. Dale, 10 CB 62 (71); per Ld. Campbell, Ex. p. Ramshay, 18 QB 173 (190); per Byles, J., (1863) 14 CBNS 180 (194), 'both give the party an opportunity to make his defence, if he has any'. And immemorial custom cannot avail in contravention of this principle. "In conformity also with the elementary principle under consideration, when a complaint has been made or an information exhibited before justice of the peace, the accused person has due notice given him, by summons or otherwise, of the accusation against him, in order that he may have an opportunity of answering it. "A statute establishing a gas-light company enacted that if any person should neglect, for a period of ten days after demand, to pay rent due from him to the company for gas supplied, the rent should be recoverable by a warrant of justice and execution thereunder. A warrant issued by a justice under this Act, without previously summoning and hearing the party to be distrained upon, was held to be illegal, though a summons and hearing were not in terms required by the Act; for the warrant is in the nature of an execution; without a summons the party charged has no opportunity of going to the justice, and a man shall not suffer in person or in purse without an opportunity of being heard. "The Metropolis Local Management Act, 1855, Sec. 76, empowered the vestry or district board to alter or demolish a house where the builder had neglected to give notice of his intention to build seven days before proceeding to lay or dig the foundation. It was held that this enactment did not empower the board to demolish such building without first giving the party guilty of the omission an opportunity of being heard for a 'tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects is bound to give such subject an opportunity of being heard before it proceeds', and 'that rule is of universal application and founded upon the plainest principles of justice.