Madras High Court
Emm Emm Container Services vs Comala Gopinath on 5 December, 2014
Author: N. Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.12.2014 CORAM THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN C.M.A. No. 3316 of 2014 & M.P. No. 1 of 2014 1. Emm Emm Container Services, A Partnership Firm, rep. By its Managing Partner Rajkumar, Having its office at No. 956, Poonamallee High Road, Purasawalkam, Chennai 600 084. 2. Rajkumar 3. M. Ashok ..Appellants Vs. 1. Comala Gopinath 2. Arvind Gopinath 3. Kamini Sundaram ..Respondents Prayer: Civil Miscellaneous Appeal as against the fair and final order dated 24.06.2014 made in I.A. No. 315 of 2012 in O.S.No. 12 of 2007 on the file of Principal District Judge, Tiruvallur. For Appellants :: Mr.A.A. Ravichandran For Respondents :: Mr.S. Raghunathan J U D G M E N T
"DELAY", "DEFAULT", "DISMISSAL" and "PROTRACTION" have become synonymous of civil proceedings. The instant case is a classic example as to how the Civil Court's proceedings are dragged on, by hook or crook, so that the party, who approaches the Civil Court, does not get the relief, even after passage of a decade and that is the reason, why the parties are seeking relief through illegal means and extra judicial methods. If the interest of the party, who approaches the Court, is not protected, it will only lead to the party resorting to extra judicial methods to achieve his means, which will not be in the interest of the society. That apart, this Court has to safeguard the interest of justice delivery system. For having approached the Court, the party concerned should not be penalised and his right to get the relief should not be frustrated. The case on hand is such a case, wherein the respondents approached the Court in 2002 and are unable to get the relief, even after 12 years. The appellants have been able to squat upon the property successfully, dragging on the matter for more than 12 years and they should not be allowed to drag on further.
2. This Civil Miscellaneous Appeal has been filed as against the order dated 24.06.2014 passed in I.A. No. 315 of 2012, which was filed under Order IX Rule 13 CPC, to set aside the ex parte decree dated 23.12.2011 passed in O.S. No. 12 of 2007 on the file of Principal District Court, Tiruvallur.
3. The suit in O.S. No. 12 of 2007 was filed by the respondents herein for recovery of possession, arrears of rent, damages and future damages for use and occupation of the suit properties. Originally, the appellants/defendants were inducted as tenants of the suit property measuring about 3.63 acres in Survey Nos. 259/1 and 259/2 in Kathivakkam Village, Ambattur Taluk, Tiruvallur District, through a lease agreement dated 13.12.2000. The monthly rent was fixed at Rs.40,000/- per month and the appellants paid an advance of Rs.1,60,000/- representing four months' rent. Though, initially, the appellants paid the rent, thereafter, they defaulted in the payment of rent, which compelled the respondents to file a suit in O.S. No. 94 of 2002 before the Sub Court, Ponneri, for the reliefs aforesaid, which was subsequently transferred to the file of District Court, Chengalpattu, as O.S. No. 719 of 2004 and again transferred to the file of Principal District Court, Tiruvallur, as O.S. No. 12 of 2007. After the filing of the written statement, the appellants remained ex parte. Therefore, an ex parte decree came to be passed on 03.12.2007. To set aside the said ex parte decree, appellants 1 and 2 herein filed I.A. No. 81 of 2010 to condone the delay of 27 days in filing the application to set aside the ex parte decree. Since the said application came to be dismissed, they filed C.R.P. NPD No. 1863 of 2011 before this Court and the said revision was allowed by order dated 29.08.2011. Thereafter, the appellants participated in the proceedings. On 23.12.2011, since there was no representation on behalf of the appellants for cross-examination of the plaintiff's witness, they were set ex parte and an ex parte decree came to be passed on 23.12.2011. To set aside the same, I.A. No. 315 of 2012 was filed by the appellants herein. However, the said application was dismissed on 24.06.2014. Hence, the present appeal.
4. Heard Mr.A.A. Ravichandran, learned counsel for the appellants and Mr. S. Raghunathan, learned counsel for the respondents.
5. As rightly pointed out by the learned counsel for the respondents, originally, the suit was filed as early as in the year 2002, before Sub Court, Ponneri, which was numbered as O.S. No. 94 of 2002 and thereafter, it was transferred to the file of District Court, Chengalpattu as O.S. No. 719 of 2004 and again, transferred to the file of Principal District Court, Tiruvallur, as O.S. No. 12 of 2007. Therefore, even due to administrative reasons, the matter was pending before the Court for 5 years. After filing the written statement, the appellants remained ex parte and an ex parte decree came to be passed on 03.12.2007. To set aside the ex parte decree, appellants 1 and 2 herein filed an application along with I.A.No. 81 of 2010 to condone the delay of 27 days in filing the set aside application. The said I.A. came to be dismissed. As against the same, appellants 1 and 2 herein filed C.R.P.(NPD) No. 1863 of 2011. During the pendency of the said C.R.P., appellants 1 and 2 had paid a sum of Rs.13,60,000/- towards damages for use and occupation of the suit properties. By order dated 29.08.2011, this Court allowed the revision, subject to certain conditions and directed the Trial Court, to complete the trial by 31.12.2011. That being so, the appellants did not evince any interest to prosecute the case properly as per the orders passed by this Court. Eventhough the proof affidavit of the 2nd respondent was filed on 17.11.2007 and the 2nd respondent was available for cross-examination, the appellants were not ready and the matter was adjourned to 21.11.2011. Thereafter, it was adjourned to 24.11.2011, 01.12.2011, 09.12.2011, 19.12.2011 and 21.12.2011 and on all the dates, the 2nd respondent herein was available for cross-examination. But, the appellants were not ready to cross-examine him. Hence, the Trial Court was left with no other optiion, except to pass an ex parte decree on 23.12.2011. Eventhough it was averred by the 2nd appellant in paragraph No.2 of I.A. No. 315 of 2012, that he was bedridden due to high diabetic complaint and other allied ailments, no documents were filed to substantiate the same. The Trial Court also observed the same and dismissed the application filed to set aside the ex parte decree. Apart from that, for cross-examining a witness, there is no necessity for the party to come to the Court. The written statement was already filed and the parties are bound by the pleadings. Neither party can go beyond the pleadings nor they can introduce a new case. Therefore, there is no necessity for appearance of the party before the Trial Court to give instructions to their counsel. Under such circumstances, the conduct of the appellants only proves that they want to protract the matter one way or the other.
6. It is evident from the records that the appellants are interested only in protracting the issue and to evade payment of amount due to the respondents. Pursuant to the orders of this Court alone, the appellants paid a sum of Rs.13,60,000/- to the respondents and thereafter, again, committed default in payment of rent. This would only go to show that the appellants are bent upon squatting upon the property of the respondents without paying the rent and intend to enrich themselves unjustly, which cannot be allowed. The Trial Court, took into consideration, all the facts and rightly dismissed the application to set aside the ex parte decree.
7. Allowing a matter to be decreed ex parte and thereafter, filing applications along with condone delay petitions has become a routine in Lower Courts and it is the order of the day. None of the proceedings before the Trial Court reach finality without filing of a set aside petition or restoration petition or Section 5 petition. Most of the times, even this Court deals with orders passed in such applications and the Court's time is literally wasted in dealing with such restoration petitions, set aside petitions, while it can be best utilised for dealing with the matters on merits. In an endeavour to to give a message to those, who indulge in such dilatory tactics and abuse the process of Court, as the appellants herein, the appeal is dismissed with cost of Rs.50,000/-. The said cost shall be paid by the appellants to the Chief Justice Relief Fund, within a period of one week from the date of receipt of a copy of this order. Connected M.P. is closed.
8. The ownership is admitted and the tenancy is also admitted. Since an ex parte decree came to be passed; the application to set aside the ex parte decree came to be dismissed and the same is also confirmed by this Court, the appellants are left with no other option, except to hand over possession to the respondents. It is admitted in paragraph No. 4 of the affidavit filed in support of the stay petition that the respondents are attempting to evict the appellants from the suit property. Therefore, it is clear that only the appellants are in possession and no third party is in possession. Hence, the appellants are directed to vacate and hand over possession of the suit properties to the respondents within a period of three months from the date of receipt of a copy of this order and the said period of three months will be available to the appellants, provided they file an affidavit of undertaking on or before 17.12.2014 to the effect that they will vacate and hand over possession of the suit properties, failing which, the respondents are at liberty to file an execution petition to get possession of the suit property. In such an event, eventhough the decree passed, for name sake, is an ex parte decree, it is a contested decree in effect. Therefore, treating it as a contested matter, the Executing Court need not issue notice to the appellants and straightaway, the Executing Court shall issue delivery warrant along with permission to break open with police protection.
9. Eventhough the appellants should be granted sufficient time to vacate and hand over possession, considering the facts of the case, this Court is justified in granting a shorter time and also in directing the Executing Court to issue warrant without notice to the appellants herein, treating it as a contested matter.
10. Call on 17.12.2014 for reporting compliance with regard to filing of affidavit of undertaking by the appellants.
05.12.2014 nv Index: Yes Internet: Yes (Note to Office: Issue order copy by 10.12.2014) To The Prl. Dist. Court, Tiruvallur.
N. KIRUBAKARAN,J.
nv C.M.A. No. 3316 of 2014 05.12.2014