Madras High Court
K.Govindammal vs C.Krishnan (Deceased)
Author: C.Saravanan
Bench: C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.06.2019
PRONOUNCED ON : .07.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P(NPD) Nos.672 & 673 of 2015
K.Govindammal .. Petitioner in both CRPs.
vs
C.Krishnan (Deceased)
1.Dhanalakshmi
2.The Chief Personnel Officer,
Divisional Railway Manager,
Personal Branch, Chennai Division,
Park Town, Chennai 600 003. .. Respondents in both CRPs.
Prayer in both CRPs.: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the fair and decretal order dated 16.07.2014
made in I.A.Nos.2988 and 2989 of 2014 in O.S.No.6127 of 2009 on the file of
the 1st Assistant City Civil Court, Chennai.
For Petitioner : Mr.R.Jagadeesan for
(in both CRPs.) Mr.K.V.Subramanian Assoc.
For R1 : Mr.V.Narayanan
http://www.judis.nic.in
2
( In both CRPs.)
For R2 : Mr.P.T.Ramkumar
(in both CRPs.)
COMMON ORDER
The present Civil Revision Petitions have been filed to set aside the fair and decretal order dated 16.07.2014 made in I.A.Nos.2988 and 2989 of 2014 in O.S.No.6127 of 2009 by the 1st Assistant Judge, City Civil Court, Chennai.
2. By the impugned order, the 1st Assistant Judge, City Civil Court, Chennai has dismissed the I.A.No.2988 of 2014 was filed for condoning the delay in paying the cost ordered to be paid on or before 16.08.2012 and extend the time for paying the cost and I.A.No.2989 of 2014 to restore the petition in I.A.No.14697 of 2011 in O.S.No.6127 of 2009.
3. The petitioner is the third defendant in O.S.No.6127 of 2009. The suit was filed by the first respondent before the 1st Assistant Judge, City Civil Court, Chennai for declaration and she is legally wedded wife of the deceased 1st defendant.
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4. The petitioner claims to have lived with the first defendant and her name was given in the records for pension. On 08.10.2010, the petitioner was called absent and set exparte and the suit was decreed exparte.
5. Hence the petitioner filed I.A.No.14697 of 2011 to condone the delay in filing the application to set aside the exparte decree I.A.No.14697 of 2011 was allowed on 08.08.2012 subject to payment of cost of Rs.750/- to be paid to the Secretary, District Legal Services Authority.
6. However, the above said amount was not paid by the petitioner and therefore, the petitioner filed I.A.No.2988 of 2014 to condone the delay in paying the cost ordered to be paid on or before 16.08.2012 and to extend the time for paying the cost. I.A.No.2988 of 2014 was dismissed on the ground that the said application was filed after a period of one year and the delay was not properly explained.
7. Thus, I.A.No.2989 of 2014 to restore in I.A.No.14697 of 2011 same was rejected. Challening the same, the petitioner has filed the present civil revision petition before this Court.
8. The learned counsel for the petitioner has relied on the following decision of this Court:
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i) Pichammal vs. Annamalai, Manu/TN/9454/2007
ii)Gowri Ammal vs. Murugan and others, 2006(3) CTC 418
iii) M/s.R.V.Refractaries and Saradha Veramics Pvt.Ltd., CRP.NPD.No.1701 of 2011 dated 12.07.2011
9. Learned counsel for the respondents submitted that O.S.No.360 of 1990 the learned District Munsif, Mathuranthakam had already ordered interim maintenance on 26.06.1991. The 1st Respondent had also filed E.P.No.2423 of 1999 against the deceased C Krishnan.
10. The learned counsel for the Respondent filed a typed set of containing 11 documents to show that the 2nd Respondent had also filed O.S.No.114 of 2007 to restrain the 2nd Respondent from disbursing the retirement benefits and other service benefits under the Voluntary Retirement Scheme to C.Krishnan.
11. In the written statement, wherein it was stated that C.Krishnan would retire from railways on 30.4.2009 and that the said C.Krishnan had declared the Petitioner and the children born from the marriage with the Petitioner herein as their wife and children Annexure R-I and Annexure R-II . http://www.judis.nic.in 5 12 The 1st Respondent also filed M.C.No.508 of 2007 under section 125 of Criminal Procedure Code for maintenance. By an order dated 5.10.2009, the said petition also came to be allowed directing the said C.Krishnan to pay a sum of Rs.900 /-to the 1st Respondent from the date of petition.
13. Learned counsel further submitted that the 1st Respondent had also filed W.P.No.17884 of 2014 had challenged the order dated 25.09.2012 passed by the Central Administrative Tribunal in O.A.No.2012. The said Writ Petition also came to be allowed by this court by an order dated 23.01.2017.
14. I have considered the rival submission and arguments advanced on behalf of the petitioner and the 1st Respondent.
15. The learned counsel for the 1st respondent submitted that section 148 of the Civil Procedure Code does not permit enlargement of time beyond 30 days is not correct in the light of the decision of the Hon’ble Supreme Court in Salem Advocates Bar Association vs Union of India (2005) 6 SCC 344, wherein it was held that the upper limit in Section 148 of CPC cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. http://www.judis.nic.in 6
16. The Court further held that rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. This view was later followed by the Hon’ble Supreme Court in Nashik Municipal Corporation versus R.M.Bhandari and another (2016) 6 SCC 245. In the said case the court considered the facts of the case and concluded that time should be extended to deposit the cost.
17. In the present case, O.S.No.6127 of 2009 was filed during the life time of the said C.Krishnan. On 30.4.2009, the C.Krishnan retired from service of the Indian Railways. He was the first defendant and He died on 30.09.2010 leaving behind the petitioner and the children born to them. The suit was decreed ex parte on 8.10.2010. There was a reasonable cause for condoning the delay as the family was bereaved.
18. I.A.No 14697 of 2011 in O.S.No 6127 of 2009 filed by the petitioner to condone the delay of 264 days to set aside the ex parte decree passed on 8.10.2010. This was allowed by the court subject to payment of cost of Rs.750/- to the Secretary, District Legal Service Authority, and Chennai on or before 16.8.2012 failing which the petitioner was liable to be dismissed. http://www.judis.nic.in 7
19. However, I.A No.14697 of 2011 was dismissed on 6.08. 2012 for non compliance even before 16.08.2012 though it has been signed on 17.08.2012. There appears to be some irregularity in the dates as the order is dated 6.08.2012 but has been signed on 17. 08.2012.
20. I.A.Nos.2988-89 of 2014 to condone the delay in payment of cost and to restore I.A No.14697 of 2011 to the file of O.S.No.6127 has been dismissed by the Court.
21. The Court was dealing with a case filed by the 1st respondent who had earlier also filed against the 1st Defendant C.Krishnan (since deceased). How the second suit was entertained has not been answered.
22. The petitioner had married C.Krishnan after the 1st Respondent had allegedly deserted late C.Krishnan. She claims to be unaware of late C.Krishnan’s prior marriage with 1st Respondent. She claims to be illiterate and uneducated and came to know about the order dismissing I.A.No 14697 of 2011 only after the pension she was getting from the Railways was stopped. http://www.judis.nic.in 8
23. In my view, she has a legitimate case to present before the Court considering the fact that the 1st Respondent had not lived with the late C.Krishnan. The Court should have been liberal in allowing the application in the facts of the case.
24. Further, the statutory authorities such as the 2nd Respondent deserve to know as to who the legally wedded wife of the late C.Krishnan is. Mere ex parte decree where the parties dispute the relationship cannot be allowed to remain especially when one of the aggrieved party seeks to set aside ex parte decree. Therefore, it in fitness of things as they stand, the petitioner should be allowed to present her case. I am inclined to allow the civil revision petitions as there are quite a few irregularities committed by the Court while dismissing the application. Issues such as the discrepancy in the dates have not been explained.
25. Consequently, both the Civil Revision petitions are allowed. The Petitioner is directed to pay the amount ordered by the lower Court in I.A No.14697 of 2011 within a period of two weeks from the date of receipt of the this order. In case, the petitioner has not filed her written statement, same should be filed within such time. On such payment and production of the http://www.judis.nic.in 9 proof, the Court should take up the case and decide the dispute on merits within a period of nine months thereafter. No costs.
.07.2019 Index : Yes/No Internet : Yes/No Speaking : Non-speaking order kkd To 1st Assistant City Civil Court, Chennai.
http://www.judis.nic.in 10 C.SARAVANAN,J.
kkd Pre-delivery Common order in C.R.P(NPD) Nos.672 & 673 of 2015 .07.2019 http://www.judis.nic.in