Madras High Court
Periasamy vs Ponnappa Nadir on 13 June, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) No.1179 of 2011 and M.P.No.1 of 2011 Periasamy .... Petitioner vs. 1. Ponnappa Nadir 2. Mallika 3. Sumathi 4. Poonkodi 5. Mariyammal 6. Karuppayee ..... Respondents Civil Revision Petition filed against the Order, dated 14.03.2011 made in an unnumbered I.A in I.A.Sr.No.1880 of 2011 in I.A.No.321 of 2010 in O.S.No.151 of 2008 on the file of the Subordinate Judge, Dharapuram, Erode District. For petitioner : Mr.S.Dhanasekaran For respondents : Mr.D.Krishnakumar ORDER
Heard both the learned counsel appearing for the petitioner as well as the respondents.
2. This Civil Revision has been preferred under Article 227 of the Constitution of India, challenging the order, dated 14.03.2011 made in an unnumbered I.A in I.A.Sr.No.1880 of 2011 in I.A.No.321 of 2010 in O.S.No.151 of 2008 on the file of the Subordinate Judge, Dharapuram, Erode District.
3. It is an admitted fact that the suit was filed in O.S.No.151 of 2008 by the respondents 1 and 2 and others, seeking partition and separate possession against the revision petitioner herein. Subsequently, that was decreed exparte, as the petitioner / defendant was called absent and set exparte, based on the evidence adduced by the respondents / plaintiffs. It is seen that the petitioner filed a petition, seeking an order to set aside the exparte decree along with a application to condone the delay in filing an application under Order IX Rule 13 CPC.
4. Considering the facts and circumstances, the Court below, passed a conditional order, directing the petitioner herein to pay cost of Rs.1,500/- on or before 09.12.2010 and has also made clear that the non-compliance of the conditional order would result in the dismissal of the application and the I.A.No.321 of 2010 was posted for reporting compliance on 10.12.2010. It is not in dispute that the conditional order, dated 09.11.2010 was not complied with and the cost was not paid, hence, according to the learned counsel appearing for the respondents, the application was dismissed on 10.12.2010 for the non-compliance of the conditional order, dated 09.11.2010. However, the petitioner / defendant filed an unnumbered Interlocutory Application under Section 148 r/w 151 CPC, seeking extension of time, that was returned with an endorsement, dated 14.03.2011, stating that as how the application was maintainable. Aggrieved by which, the revision was preferred.
5. Learned counsel appearing for the petitioner submitted that the Court is not 'functus officio' in extending the time, hence, the revision be allowed by extending time for compliance of the conditional order, dated 09.11.2010. In support of his contention, the learned counsel relied on the following decisions :
1. A.P.Subramanian vs. R.Sivasamy, 2008 (4) CTC 499
2. Pichammal vs. Annamalai, 2008 (1) CTC 47
3. Gowri Ammal vs. Murugan, 2006 (3) CTC 418
6. Learned counsel appearing for the respondents / decree-holders, submitted that pursuant to the preliminary decree, final decree petition was filed, Advocate-Commissioner was appointed, who inspected the property and filed his report before the Court below for passing final decree and the matter was pending before the Court below for a long time. At this stage the petitioner / defendant has filed this revision, which is an abuse of process of law, adopting delay tactics. Learned counsel appearing for the respondents, in support of his contention, relied on the decision, D.Raju vs. N.Ramalingam, reported in 2001 (1) T.L.N.J 291.
7. In D.Raju vs. N.Ramalingam, reported in 2001 (1) T.L.N.J 291, this Court, (N.V.BALASUBRAMANIAN, J), conditional order was passed by the Court below, that was not complied with, however, the time expired. Subsequently, application filed by the petitioner, seeking extension of time, wherein, it was held that under Section 148 of the Code of Civil Procedure, to extend further time, Court has become functus officio. The conditional order had already been passed by the trial Court on merits, after hearing both sides, when the application for extension of time was filed subsequently before the Court below, it was held that the Court became functus officio and Section 148 CPC was not available to the District Munsif to extend the time limit, after the date fixed by the Court below.
8. Subsequently, a Division Bench of this Court, in Gowri Ammal vs. Murugan, reported in 2006 (3) CTC 418, (M.KARPAGAVINAYAGAM, J) considering the aforesaid decision reported in 2001 (1) T.L.N.J 291 (cited supra) and also the decisions of the Hon'ble Apex Court rendered in Salem Advocate Bar Association, T.N vs. Union of India, reported in 2005 (6) SCC 344 and Mahanth Ram Das vs. Ganga Das, reported in AIR 1961 SC 882 has categorically held that the Court, which passed the conditional order would not be 'functus officio', since the time limit for compliance expired. The Division Bench has further held as follows:
"20. The decision rendered by the Supreme Court on this point, which is a ratio decidendi, is a law on the land, binding on all Courts in India, under Article 141 of the Constitution of India. Where the Supreme Court has stated that the law laid down in a particular case is the applicable law, it cannot be contended that the decision rendered by the Supreme Court has not considered the point, regarding functus officio. It is not only a matter of discipline for the High Courts in India, but it is the mandate of the Constitution, as provided under Article 141, that the law declared by the Supreme Court shall be respected by all the Courts and the counsel as well as the parties, within the territory of India."
9. Following the decision of the Division Bench of this Court, In A.P.Subramanian vs. R.Sivasamy, reported in 2008 (4) CTC 499, this Court (S.TAMILVANAN, J), has held that as per Section 148 Code of Civil Procedure (5 of 1908), the Court, which passed the conditional order does not become 'functus officio' for extending time for payment of money beyond the prescribed period.
10. In Pichammal vs. Annamalai, reported in 2008 (1) CTC 47, this Court (M.VENUGOPAL, J) held that the trial Court has power to extend time for payment of cost and in that view of the matter, the Court is not functus officio.
11. It is a settled proposition of law that the Court, which passed the conditional order is not functus officio in extending the time to pay the cost, however, there must be justification on the side of the petitioner, seeking extension of time. It is an admitted fact that as the petitioner / defendant was called absent, he was set exparte and the preliminary decree was passed, subsequently, the petitioner filed the Interlocutory Application in I.A.No.321 of 2010, seeking an order to set aside the exparte decree, under Order IX Rule 13 CPC along with an application under Section 5 of Limitation Act to condone the delay in filing the aforesaid application. In fact, the Court below, took a lenient view and passed the conditional order, directing the petitioner / defendant to pay Rs.1,500/- towards cost on or before 09.12.2010. However, the aforesaid conditional order was not complied with by the petitioner / defendant for the reasons best known to him.
12. The Court below directed the petitioner to pay the cost on or before 09.12.2010 and for reporting compliance, posted the matter to 10.12.2010. However, it is clear that the petition was dismissed on 10.12.2010, since the conditional order was not complied with by the petitioner, which shows the deliberate and the lethargic attitude of the petitioner.
13. In the aforesaid circumstances, there is no justification on the part of the petitioner to file casually an application, seeking extension of time, after the expiry of the time limit fixed by the Court below. There is no error on the part of the Court below in passing the order raising a query as to how the application was maintainable after dismissal of the earlier application and for submitting the reply, it was posted after two weeks, as per the order, dated 14.03.2011. It is seen that the return was also not complied with by submitting a convincing reply on the maintainability. However, the petitioner has directly preferred this revision under Article 227 of the Constitution.
14. It is a settled proposition of law that Article 227 of the Constitution could be invoked, only to prevent an abuse of process of law or if an order is passed by any Subordinate Court, without jurisdiction, only to meet the ends of justice. The petitioner cannot invoke Article 227 for his own default, that cannot be justified and further, there is no reason for the non-compliance of the conditional order passed by the Court below. The conditional order was also not challenged by the petitioner herein, seeking extension of time, after the expiry of the time limit fixed is not a matter of right. However, he filed the petition and that was rightly returned by the Court below. When there is no illegality or material irregularity, leading to miscarriage of justice, on the part of the Court below, the petitioner cannot maintain revision under Article 227 of the Constitution, in order to adopt delay tactics or to abuse the process of Court.
15. In the instant case, there is no satisfactory reason on the part of the petitioner to justify the non-compliance of the conditional order and the subsequent petition filed by him. Admittedly, this revision relates to a partition suit. Pursuant to the preliminary decree, final decree petition was filed, Advocate-Commissioner was appointed and the Commissioner, after inspecting the property, has filed his report. In the aforesaid circumstances, casually the petitioner cannot file a petition stating that the Court is not 'functus officio' and the Court is having power. It is a settled proposition of law that the Court is having power and cannot become 'functus officio', but such power has to be exercised judiciously. In the instant case, there is no such circumstances available in favour of the petitioner. A person, who is in possession and enjoyment of the property cannot adopt delay tactics with a view to protract the Court from passing final decree. Admittedly, various subsequent orders, such as appointment of Advocate-Commissioner, were not challenged by the petitioner, now the Court below has to pass final decree, according to law.
16. In the aforesaid circumstances, I am of the view that there is no scope for interference, since there is no illegality or material irregularity in the impugned order and allowing this civil revision petition would lead to miscarriage of justice at this stage and prejudice the rights of the respondents, hence, I am of the view that this petition is liable to be dismissed, to meet the ends of justice.
17. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there is no order as to costs.
tsvn To The Subordinate Judge Dharapuram, Erode District