Madras High Court
N.P.Srinivasan vs S.Santhalakshmi on 8 February, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandra Baabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 08.02.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRA BAABU C.R.P.(NPD) No.2980 of 2010 and C.R.P. (PD) No. 4223 of 2010 M.P.No.1 of 2010 N.P.Srinivasan ... Petitioner in both C.R.Ps. Vs. S.Santhalakshmi .. Respondent in both C.R.Ps. Civil Revision Petition in C.R.P.(NPD) No. 2980 of 2010 filed against the fair and decreetal order dated 2.6.2010 made in I.A.No.134 of 2010 in O.S.No.114 of 2005 on the file of the Subordinate Judge, Vellore . Civil Revision Petition in C.R.P.(PD) No. 4223 of 2010 filed against the fair and decreetal order dated 18.8.2010 made in I.A.No.278 of 2010 in O.S.No.114 of 2005 on the file of the Subordinate Judge, Vellore . For Petitioner :- Mrs.M.R.Sakunthala For Respondent :- Mr.A.Jenasenan ORDER
C.R.P.(NPD) No.2980 of 2010 is filed against the order dated 2.6.2010 in allowing the application filed under Section 5 of the Limitation Act seeking for condonation of delay of 1828 days in filing a petition to set aside the ex parte decree.
2. C.R.P.(PD) No.4223 of 2010 is filed against the order in allowing the application filed under under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.
3. The petitioner herein is the plaintiff. He filed the said suit seeking for declaration of his title and for permanent injunction. The respondent herein is the first defendant in the said suit. On 20.12.2005, the suit was decreed exparte. The respondent filed an application in I.A.No. 134 of 2010 under Section 5 of the Limitation Act to condone the delay of 1828 days in filing the petition to set aside the ex parte decree. She also filed filed another application in I.A.No. 278 of 2010 under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.
4. Heard both sides and the records placed before this Court are perused.
5. The respondent filed an affidavit in support of her application seeking for condonation of the delay and explained the reasons for filing the application with such delay. It is stated in the affidavit that she was incorrectly described in the plaint as W/o Late Sivananda Mudaliar with incorrect address as if she was residing at No.15, Balaji Road, Krishna Nagar, Vellore, Vellore District, while she is only the daughter of the said Sivananda Mudaliuar.
6. The case of the respondent is that she was residing at Chennai long prior to 2005. The plaintiff and the second defendant seem to have stage managed to send the suit summons to her Vellore address and managed to get an endorsement, as if it could not be served as the door was locked on 21.6.2005. It is also stated by the respondent that the plaintiff again seems to have stage managed to send the suit summons and got an endorsement by the court processes server as if she refused to receive the summons. She was not residing in the suit house in Vellore long prior to 2005 and she was residing only at Chennai at the relevant point of time.
7. It is also stated by the respondent that the endorsements made by the process server are not true. They are collusively and falsely created endorsements. She had specifically stated that she had no knowledge of the filing of the suit and she was not served with any summons or summons with the suit plaint at any point of time. Even in the E.P. filed by the plaintiff, the respondent did not receive any notice. The endorsement made by the process server regarding the service of notice in the E.P. proceedings was also false. The plaintiff made an allegation in the plaint that the respondent had executed a letter dated 15.2.2005 and handed over the property to the plaintiff. This averment of the plaintiff is disputed by the respondent. It is the case of the respondent that only after perusing the court records on 25.1.2010, she came to know about the exparte decree passed and therefore she filed the application to condone the delay of 1828 days in filing the application to set aside the ex parte decree.
8. In the said application filed by the respondent notice was ordered on 5.3.2010 to the petitioner herein. Only on 29.4.2010, counsel for the petitioner herein as respondent in the said application entered appearance and sought time to file counter affidavit. Thereafter, the matter was posted on 2.6.2010 for filing counter. When the matter was taken up on 2.6.2010, the petitioner herein did not file counter and he was also called absent and thereby set ex parte. Consequently, the application in I.A.No. 134 of 2010 was allowed by the court below.
9. Insofar as the application filed under Order 9 Rule 13 C.P.C. is concerned the petitioner herein as the respondent in that application filed a counter affidavit and denied the averments. The Court below after considering all the facts and circumstances passed a detailed order and thereby allowed the application filed under Order 9 Rule 13 C.P.C. and set aside the exparte decree.
10. The learned Judge at paragraph 10 of his order dated 18.8.2010 passed in I.A.No.278 of 2010 observed that the petitioner herein did not file any counter in the application filed seeking for condonation of delay and on the other hand he filed the counter in the application filed under Order 9 Rule 13 with all false averments. The Court below also found at paragraph No.11 that the respondent herein was not served with any suit summon from the Court at any point of time and at any stage of the proceedings. It is the categorical finding of the learned Judge that the petitioner herein played fraud on the Court with the collusion of the Advocate as well as the process server. The relevant portion of the order of the Court below is extracted hereunder:
11/ ,t;tHf;fpy; Mtz';fisa[k;. epiwntw;W kDita[k; tHf;Fiuiaa[k;. ePjpkd;wj;jpd; cj;jut[fisa[k; ghprPypf;ifapy; kDjhuu;. Kjy; gpujpthjp rhe;jyl;Rkp vg;bghGJk;. XU nghJk; ePjpkd;wj;jpy; ,Ue;J mDg;gg;gl;l rk;kid bgwtpy;iy vd;Wk;. rk;kid bgw kWj;Jtpl;ljhf ePjpkd;wj;jpd; mkPdh Mu;/b$auh$; vGjp thjpahd ,k;kDtpd; vjpu;kDjhuu; rPdpthrd; mjpy; ifbaGj;J bra;Js;sija[k; guprPypf;Fk;nghJ ,t;tHf;fpy; kpfg;bgupa nkhro bray; tHf;fwp"upd; JiznahL ePjpkd;w fl;lis epiwntw;Weu; K:yk; ele;Js;sJ Kjy;nehf;fpnyna bjupatUfpd;wJ/ Thus, by observing and also by going into the other factual aspects of the matter, the Court below set aside the ex-parte decree.
11. The petitioner is aggrieved against the order passed by the Court below in condoning the delay of 1828 days in filing the application under Order 9 Rule 13 as well as allowing the application under Order 9 Rule 13. First of all, when the application under Section 5 of the Limitation Act was filed by the respondent, as stated supra, a detailed affidavit was filed in support of such application. The various averments made therein and are discussed supra have not been controverted by the petitioner by filing any counter affidavit even though sufficient time was granted for filing the same. Consequently, the Court below in the absence of any counter affidavit denying the averments made by the respondent and also by taking note of the fact that the petitioner remained absent when the application was called on 2.6.2010 allowed the application. Even though the Court below has not passed any detailed order while allowing the application in I.A.No. 134 of 2010, however, a perusal of the order passed on 18.8.2010 in I.A.No. 278 of 2010 shows that the respondent was not served any notice at any point of time and the Court also found that petitioner has played fraud on the court with the help of others. When that being the factual finding rendered by the Court below and based on the same, it has also set aside the exparte decree, I find no merits in these Civil Revision Petitions to interfere with such factual findings, especially, when the Court below has set aside the exparte decree only for the parties to contest the matter on merits. No serious prejudice would be caused to the parties, if the matter is taken on file for contesting the same on merits.
12. Learned counsel for the respondent also relied on a decision of the Hon'ble Division Bench of this Court in V.Padmanabhan Vs. R.R.Shah and others ( 1988 ( 1) Law Weekly 1) in support of his submission that when the summons were not served due to wrong address furnished by the plaintiff, any ex parte decree passed against the defendant is liable to be set aside. In the said decision, the Hon'ble Division Bench had found that the ex parte decree will have to be set aside for more than one reason, apart from the doubt as to the correctness of the procedure adopted and the non-service of the summons when the defendant admittedly residing in a different place. As already stated, the Court below has categorically given a finding that the respondent herein was not served with any summon at any point of time by the court below. Hence the above decision of the Hon'ble Divison Bench supports the case of the respondent.
13. No doubt the delay of 1828 days is enormous and the respondent is bound to satisfy the Court with sufficient cause for condoning the said delay. Going by the pleadings of the respective parties before the Court below as well as specific finding rendered by the learned Judge, satisfying with the reasons adduced by the respondent, more particularly on the ground of non-service of summons, in my considered view, it is to be held that the respondent had discharged her burden of proving sufficient cause , even though the delay was for a long period.
14. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court reported in 1998 (7) SCC 123 (N.Balakrishnan Vs. M.Krishnamurthy), wherein it is observed at paragraph 9 as follows:
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation 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 a want of acceptable explanation whereas in certain other cases, delay of a 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 revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court 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 untrammelled by the conclusion of the lower court."
15. The said decision was considered in a recent decision of the Apex court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai (2012 (5) SCC 157), wherein it is observed at paragraph 24 as follows:-
"24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
16. Applying the law laid down by the Hon'ble Supreme Court to the facts and circumstances of the case, I find no merits in the Civil Revision Petitions and the same are dismissed. Since the suit is of the year 2005, I direct the trial court to take up the suit in O.S.No.114 of 2005 and dispose of the same on merits within a period of four months from the date of receipt of copy of this order. Consequently, the connected M.P. is closed. No costs.
08.02.2013 Index:Yes/No Internet:Yes/No krr/ To The Subordinate Judge, Vellore .
K.RAVICHANDRABAABU,J.
krr/
C.R.P.(NPD) No.2980 of 2010 and C.R.P. (PD) No. 4223 of 2010
Dated:-08.02.2013