Madras High Court
Margadha Lakshmi vs S. Karthik on 15 April, 2024
C.R.P.No.4079 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.DHANABAL
C.R.P.No.4079 of 2022
Margadha Lakshmi ...Petitioner
Vs
1. S. Karthik
2. Shanmuga Priya ...Respondents
Prayer: Civil Revision Petition filed under Section 115 of Civil Procedure
Code praying to set aside the fair order and decreetal order dated 06.08.2022
passed in I.A.No. 3 of 2021 in O.S.No. 281 of 2018 on the file of Learned I
Additional District and Sessions Judge, Salem.
For Petitioner : Mr.M.V.Seshachari
For Respondent : Mr.A.M.Krishnamoorthy
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C.R.P.No.4079 of 2022
ORDER
This Civil Revision Petition is filed against the order passed in I.A.No.3 of 2021 in O.S.No. 281 of 2018 on the file of the I Additional District and Sessions Judge, Salem, dated 06.08.2022 wherein the petitioner herein has filed the petition under Section 5 of the Limitation Act, 1963 and Section 151 of Cr.P.C., to condone the delay of 609 days in filing the petition to set-aside the ex-parte decree. The Trial Court has dismissed the petition, challenging the said order the present Civil Revision Petition is filed by the petitioner.
2. According to the petitioner, he is the second defendant in the suit. The petitioner has not been served with any summons in respect of the suit. Only on 29.12.2020, the petitioner received a phone call with regard to the suit in O.S.No. 454 of 2019 and a letter was sent to her previous address and after receipt of the phone call only, the petitioner requested her relative at Salem to verify the particulars. On enquiry, the petitioner was told that O.S.No. 454 of 2019 is pending and posted on 24.02.2021 for steps. Thereafter, the petitioner 2/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022 came to know that the Respondents/Plaintiffs have filed another proceedings in O.S.No. 281 of 2018 and the same was also pending. In which an exparte judgment was passed on 07.06.2019 as if summons served on her. The respondents/plaintiffs had knowledge about the present address of the petitioner and by suppressing the same, wrongly described her previous address and obtained ex-parte decree. Therefore, there is no delay in filing the application to set aside the ex-parte decree with abundant caution the petitioner filed the petition along with an application to condone the delay. The Petitioner was in quarantine for the past 13 months due to Covid-19. The Petitioner was not able to move out from the house. Since the situation was worse in United State of America. The Petitioner was attended her son due to his medical condition and also no sufficient transport facility available. Therefore, the ex-parte decree passed against the petitioner is liable to be set aside. Therefore, delay in filing the ex-parte decree of 609 days is to be condoned.
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3. According to the Respondents, he filed suit for permanent injunction in O.S.No. 7 of 2013 on the file of II Additional District Munsif Court at Salem, in which due and proper notice and summons were served upon the petitioner, and her brother. The suit was dismissed on 14.06.2018 and thereafter appeal in A.S.No. 56 of 2018 was filed and allowed. In the suit a proper and valid notices and summons were served upon the petitioner as well as her brother. The petitioner has not shown “Sufficient cause” for the delay of 609 days and the same have not properly explained. The notice and summons were served to the address given by the petitioner in the Power of Attorney filed before the II Additional District Munsif Court, Salem in O.S.No. 7 of 2013. Only after due service of notice a valid decree was passed. The present petition is only to delay and to drag the proceedings and to prevent the respondent to enjoy the fruits of the decree. Hence, this petition is liable to be dismissed.
4. Before the Trial Court no oral and documentary evidence were adduced. The Trial Court after hearing both sides and perusal of records, 4/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022 dismissed the petition. As against the fair and decreetal order, the present petition is filed by the petitioner.
5. The learned counsel for the petitioner would contend that the respondents have filed a suit against the petitioner and this petitioner was arrayed as second defendant in the suit. No summons were served to her. In fact, she was residing in Lapalma, California, but the summons were served to previous address of Orange, California. Therefore, the summons were not served to the petitioner and she came to know about the case only on 24.02.2021 thereafter she filed a petition on 25.02.2021. Since the summons were not served to her, she was unable to know about the case. But the exparte decree was obtained by the respondents by showing the previous address at Orange, California. In fact in the year 2012 itself, she changed her address from Orange, California to Lapalma, California, but the respondents very well know about the change of address and issued summons to the previous address and thereby, the petitioner unable to know about the case. 5/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022
6. Further for the past 13 months, due to the Pandemic situation of Covid-19, she was unable to move from USA. In fact, there is no delay in filling the application to set aside the ex-parte decree, since she came to know about the case only on 24.02.2021. Immediately she filed a petition with abundant caution along with an application to condone the delay of 609 days. Therefore the Trial Court has failed to consider the above said aspects, dismissed the petition by holding that the summons were returned with endorsement 'unclaimed'. Further, the petitioner has calculated the Covid -19 Pandemic period and those days have to be excluded. The Trial Court has not considered the above said aspects, dismissed the petition. Therefore, the order passed by the Trial Court is liable to be set aside.
7. To support his contention, the learned counsel for the petitioner relied on the judgement of this Court in the case of C.Kanniappan Vs. R.P.Nandagopal reported in 2016 SCC Online Mad 20408 (C.R.P.No. 3094 of 2012, dated 09.08.2016).
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8. The learned counsel appearing for the respondents would contended that already the respondents have filed the suit in O.S.No. 7 of 2013 against the petitioner and her brother. The suit was dismissed on 14.06.2018. Thereafter, preferred an appeal in A.S.No. 56 of 2018 on the file of the Principal Subordinate Judge, Salem. In that appeal also, the petitioner and her brother have not appeared and ex-parte judgment was passed by allowing the appeal. Thereafter, the respondents have filed a suit in O.S.No. 281 of 2018 on the file of the I Additional District Judge, Salem for declaration and permanent injunction. In that suit also, the summons were served upon the petitioner as well as her brother. The said suit was decreed on 07.06.2019 and the defendants had knowledge about the case. Therefore, her brother knowing well has failed to file the petition within a time and there is no sufficient cause for the delay in the present petition. The petitioner had knowledge about the case and she failed to explain the delay of 609 days and thereby the Trial Court has correctly dismissed the petition. Therefore, the present petition is liable to be dismissed.
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9. To support his contention, the learned counsel for the respondents relied upon the following judgmentss:-
(i) in the case of A. Abitha Nachi vs. K.S. Saroja reported in 2016(3) MWN (Civil) 404 (C.R.P.(NPD) No. 541 of 2015 dated 20.10.2016) and in the case of A.Zahir Hussain vs. K.S. Saroja reported in 2016(3) MWN (Civil) 404 (C.R.P.(NPD) No. 4973 of 2014 dated 20.10.2016)
(ii) in the case of B.Rajendran vs. D.Bakthavachalu reported in 2022(1) MLJ 287 (C.R.P.(PD) Nos. 3447 & 3448 of 2016 and C.M.P.No. 17586 of 2016, dated 10.12.2021)
(iii) in the case of V.Marimuthu vs. V.Kalaiselvi and others (C.M.P.No.21332 of 2022 dated 10.02.2023)
(iv) in the case of Tamil Radhasoami Satsang Assn., vs. Sports Development Authority of Tamil Nadu reported in 2022(1) MWN (Civil) 683 (C.R.P.(NPD) No. 3445 of 2015 & M.P.No. 1 of 2015 dated 20.09.2021)
(v) in the case of D.Gopinath vs. D.Gopinath reported in 2016(1) TLNJ 408 (Civil) (C.R.P.(NPD) No. 1388 of 2015, dated 04.01.2016) he also relied various Hon'ble Supreme Court Judgments.
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(vi) in the case of Basawaraj and Another vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81 (Civil Appeal Nos. 6974 & 6975 of 2013, dated 22.08.2013)
(vii) in the case of P.K.Ramachandran vs. State of Kerala and another reported in (1997) 7 SCC ( Civil Appeal No. 6514 of 1997, dated 19.09.1997)
10. This Court heard both sides and perused the materials available on record.
11. In this case, the petitioner herein was arrayed as second defendant in the main suit and the main suit was filed by the respondents for the relief of declaration and permanent injunction. In the said suit, an exparte decree was passed against the defendants on 07.06.2019. It is the admitted fact that the second defendant was not appeared either through counsel or through person and the summons were not served to her and it was returned as unclaimed. According to the petitioner, she was residing in Lapalma, California but in the suit address mentioned as Orange, California, USA. Therefore, the summons 9/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022 were not served to her. The respondents herein have filed another suit in O.S.No. 454 of 2019 on the file of the III Additional District Court, Salem for damages. In that suit, she gathered particulars from her relatives and thereafter only she came to know about the suit in O.S.No. 281 of 2018 on the file of I Additional District Judge, Salem was disposed of on 07.06.2019 by setting the defendants exparte. This Court perused the records and observed that, no summons were served to the defendants in the main case and the Trial Court also recorded as summons returned as unclaimed.
12. It is the admitted fact that the petitioner was residing in USA on the date of filing of the suit and the suit address is mentioned as Orange USA. Accordingly to the petitioner, she was residing in Lapalma. In order to prove the same, she has not produced any documents before the Trial Court. However, it is the duty of the plaintiffs to serve notice to the defendants with correct address. On perusal of the plaint, it reveals that the address was mentioned as Orange, California. But according to the petitioner she was not residing in Orange, California, in the year 2012 itself she left from the said 10/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022 address and residing in Lapalma, California. However, on perusal of the records, it shows that the summons were not served to the petitioner and based on the endorsement (i.e) unclaimed made in the unserved envelop, the Trial Court passed exparte order.
13. The Trial Court has passed order stating that the summons were sent to the previous address and in the Power of Attorney also mentioned the same address. But the petitioner has produced passport, and on perusal of the records, it reveals that from 16.12.2012 she was residing at Lapalma, California. The petitioner has filed the petition by giving her address as Lapalma, California. The Trial Court has not considered the said aspects and dismissed the petition. Even assuming that the summons were returned as unclaimed. It is the duty of the plaintiff to prove the same that the summons were duly served with the defendants. Therefore, the reasons stated by the petitioner are acceptable. Further, it is well settled law that while calculating the delay the date of knowledge has to be taken into account. 11/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022
14. Considering the nature of the suit and considering the reason stated in the petition, the summons were not served to the petitioner in a proper address. It is appropriate to allow this application to give fair chance to the petitioner to putforth his defence. Hence, it is appropriate to set aside the order passed by the Trial Court.
15. In this context, the learned counsel for the petitioner has relied on the judgment of this Court in the case of C.Kanniappan Vs. R.P.Nandagopal reported in 2016 SCC Online Mad 20408. On careful perusal of the judgment, it is clear that if the address of the defendant was wrongly mentioned in the plaint and suit was set exparte then this Court can set aside the order and this Court can condone the delay on that ground.
16. The learned counsel for the Respondents relied upon the following judgments:-
(i) in the case of A. Abitha Nachi vs. K.S. Saroja reported in 2016(3) MWN (Civil) 404 (C.R.P.(NPD) No. 541 of 2015 dated 20.10.2016) and in the 12/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022 case of A. Zahir Hussain vs. K.S. Saroja reported in 2016(3) MWN (Civil) 404 (C.R.P.(NPD) No. 4973 of 2014 dated 20.10.2016)
(ii) in the case of B. Rajendran vs. D. Bakthavachalu reported in 2022(1) MLJ 287 (C.R.P.(PD) Nos. 3447 & 3448 of 2016 and C.M.P.No. 17586 of 2016 dated 10.12.2021)
(iii) in the case of V.Marimuthu vs. V.Kalaiselvi and others (C.M.P.No.21332 of 2022 dated 10.02.2023)
(iv) in the case of Tamil Radhasoami Satsang Assn., vs. Sports Development Authority of Tamil Nadu reported in 2022(1) MWN (Civil) 683 (C.R.P.(NPD) No. 3445 of 2015 & M.P.No. 1 of 2015 dated 20.09.2021)
(v) in the case of D.Gopinath vs. D.Gopinath reported in 2016(1) TLNJ 408 (Civil) (C.R.P.(NPD) No. 1388 of 2015, dated 04.01.2016) he also relied various Hon'ble Supreme Court Judgments.
(vi) in the case of Basawaraj and Another vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81 (Civil Appeal Nos. 6974 & 6975 of 2013, dated 22.08.2013) 13/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022
(vii) in the case of P.K.Ramachandran vs. State of Kerala and another reported in (1997) 7 SCC ( Civil Appeal No. 6514 of 1997, dated 19.09.1997).
17. On careful perusal of those judgments, it is clear that the petitioner has to state sufficient reasons to condone the delay and approach of courts while condoning the delay, the discretion to condone delay has to be exercised judiciously based on the facts and circumstances of the each case and sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bonafides is attributed to the party. In the case on hand, the plaintiff failed to prove that summons were duly served to the petitioner/second defendant and thereby the above said case laws will not be applicable to the present facts of the case.
18. In view of the above discussion, this Court is of the opinion that the order passed by the Trial Court is liable to be set aside. 14/16 https://www.mhc.tn.gov.in/judis C.R.P.No.4079 of 2022
19. In the result, this Civil Miscellaneous Petition is allowed and the order passed by the Trial Court in I.A.No. 3 of 2021 in O.S.No. 281 of 2018 dated 06.08.2022 on the file of Learned I Additional District and Sessions Judge, Salem is set aside and the petition is allowed. The Trial Court is directed to number the Order 9 Rule 13 of Civil Procedure Code petition if otherwise in order and dispose of the same within a period of two months from the date of numbering the petition. No costs.
15.04.2024
Index : Yes/No
Internet : Yes/No
Citation : Yes/No
nsl
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C.R.P.No.4079 of 2022
P.DHANABAL,J
nsl
To
I Additional District and Sessions Judge,
Salem.
C.R.P.No.4079 of 2022
15.04.2024
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