Madras High Court
Ayyanar vs Arumugam on 27 January, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2014 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.R.P.(NPD) No.2070 of 2010 and M.P.No.1 of 2010 Ayyanar ... Petitioner Vs. 1.Arumugam 2.Sakunthala W/o.Arumugam ... Respondents Civil Revision Petition filed under Section 115 of the Civil Procedure Code to revise the fair and decreetal order of the Principal District Munsif, Tindivanam dated 22.08.2006 made in I.A.No.358/2004 in O.S.No.129/1998 For Petitioner : Mr.N.Suresh For Respondent : Mr.N.Santhosh for Mr.A.K.Kumarasamy O R D E R
This civil revision petition has been preferred under Section 115 of the Civil Procedure Code questioning the correctness and legality of the order dated 22.08.2006 passed by the learned Principal District Munsif, Tindivanam in I.A.No.358/2004 in O.S.No.129/1998.
2. The revision petitioner as plaintiff, had filed the above said suit for recovery of the advance amount paid by him to the respondents herein under a sale agreement dated 13.10.1997 with interest and also for damages for breach of contract. The respondents, though entered appearance initially engaging a counsel, thereafter, failed to contest the case and thus, they suffered an ex-parte decree dated 25.11.1999. An un-numbered application came to be filed by the respondents herein to set aside the ex-parte decree along with an application in I.A.No.358/2004 to condone the delay of 1185 days in filing the application to set aside the ex-parte decree. It was contended therein that only on 22.03.2003, the respondents herein came to know that the ex-parte decree dated 25.11.1999 had been passed against them.
3. The application was resisted by the revision petitioner herein refuting the contentions raised by the respondents herein in the affidavit filed in support of the applications and contending that the respondents herein, besides having been emboldened to sell the property to a third party even while an order of attachment was in force, did have every opportunity to contest the case as they did receive notice at various stages in the execution proceedings. It was also contended by the revision petitioner herein that suppressing the receipt of notice and their appearance in the execution proceedings, they had come forward with the applications making false and untenable averments in the supporting affidavit and prayed for the dismissal of the application filed under Section 5 of the Limitation Act, 1963 holding that the inordinate delay in filing the application to set aside the ex-parte decree was not properly explained.
4. The learned Principal District Munsif, Tindivanam, after hearing both sides, passed an order on 22.08.2006 allowing I.A.No.358/2004 holding that the reasons assigned by the respondents herein were acceptable.
5. The above said order of the learned Principal District Munsif, Tindivanam, is impugned on the ground that the learned trial judge, who chose to elaborately narrate the averments of the respondents herein and the counter averments of the revision petitioner herein, passed a crippled one sentence order, which could be even stated to be a non-speaking order. It is also contended that the learned trial judge did not advert to various averments made in the counter statement of the revision petitioner, which resulted in the failure on the part of the trial court to assign reasons for the supposed satisfaction of the trial court regarding reasons assigned by the respondents herein. Based on the said grounds, the revision petitioner has sought for an order to revise the order of the learned trial judge dated 22.08.2006 and to set aside the same and consequently for the dismissal of I.A.No.358/2004.
6. Notice before admission was given and the respondents are represented by counsel. The arguments advanced by Mr.N.Suresh, learned counsel for the revision petitioner and by Mr.N.Santhosh, learned counsel for the respondents are heard. The grounds of revision, copy of the order of the trial court, documents produced in the form of typed set of papers and additional typed set of papers are also perused.
7. As rightly contended by the learned counsel for the revision petitioner, the impugned order of the learned trial judge is a crippled one without assigning any reason for the stated satisfaction of the court below regarding the reasons assigned by the respondents herein for their belated approach to the court below for setting aside the ex-parte decree passed against them in 1999. Though the learned Principal District Munsif, Tindivanam, took pains to narrate the pleadings of both parties and also state the point for consideration, there was a sudden slip in her approach, which resulted in a crippled observation allowing the application. That part of the order of the trial court containing the reasons and the result found in a single sentence, which is in vernacular, reads as follows:
"kDjhuh; kD kw;Wk; Ml;nrgid ghprPypf;fg;gl;lJ/ mt;thW ghprPypf;fg;gl;ljpy;. kDjhuh;fs; j';fSila kDtpy; Twpa[s;s fhuz';fs; Vw;Fk;goahd cs;s epiyapy;. kDjhuh;fs; kDit mDkjpj;J cj;jutpLfpnwd;/ "
8. Admittedly, the revision petitioner and the respondents entered into an agreement for sale on 13.10.1997 and a sum of Rs.30,000/- was paid by the revision petitioner to the respondents herein on the date of agreement as advance. Whatever might be the clauses in the agreement regarding return of the advance amount or the forfeiture of the advance amount in the event of default on the part of the revision petitioner in completing the transaction, when the revision petitioner had filed the suit for the recovery of the advance amount with interest and also damages for breach of contract, the respondents ought to have contested the matter on the grounds of defence available to them. Admittedly, the respondents were served with summons and they entered appearance engaging a counsel. Thereafter, they did not take care to file their plea of defence in the form of written statement, which led to an order setting them ex-parte and ultimately an ex-parte decree, directing payment of the amount claimed in the suit with interest and cost, was passed. Such a decree came to be passed on 25.11.1999.
9. The respondents herein, who approached the trial court with an application to set aside the ex-parte decree, had caused a delay of 1185 days over and above the period of 30 days allowed for filing an application under Order IX Rule 13 CPC, to set aside the ex-parte decree. The entire stretch of delay had been sought to be explained at one stroke by casting the blame on the advocate engaged by the respondents herein. In the affidavit filed in support of their applications, it had been stated that the advocate, who entered appearance on their behalf, got signatures in some papers informing them that the same would be used for preparing and filing written statement and that it would be enough for the respondents herein to meet the counsel only after receipt of intimation from him for trial.
10. It is not the case of the respondents that they had given all instructions to the counsel for the preparation of the written statement, based on which, the counsel prepared the written statement, obtained signatures of the respondents in the written statement and promised to file it in the court, but failed to do so. The very fact that they had chosen to state that the advocate simply got their signatures in some papers informing them that he would prepare the written statement and file it in the court, will show the slippery ground on which the respondents were treading. Apart from the said ground being unbelievable and untenable, this court is able to find that the other plea of the respondents that they did not have knowledge of the decree till two days prior to the filing of the application, namely till 22.03.2003, is also a false one deserving outright rejection.
11. Admittedly, the respondents had executed a sale deed in favour of a third person in 2001 after passing of the decree. However, the property was auctioned in the execution proceedings in E.P.No.79/2000. In the Execution petition, the petitioners were served and in fact, they entered appearance at the first instance in person, got time for filing counter and later on engaged a counsel, through whom a counter statement was filed. The Executing Court, after adjourning the execution petition for several hearings, at last, heard the parties and passed an order holding the objections raised in the counter statement to be substance-less and untenable. After such an order, the property was proclaimed for sale. Sale proclamation was settled and it was brought for sale by auction in the court on 17.04.2002. As there was no bidder, the sale was adjourned. Again, on steps taken by the decree holder, namely the revision petitioner, for reduction of the upset price, the upset price was reduced by an order dated 31.01.2003 and again fresh sale proclamation was made and ultimately, the property was sold on 30.04.2003.
12. The above said factual matrix relating to the execution proceedings will make it abundantly clear that the respondents herein were watching the proceedings and they did approach the court with a false affidavit, only when the second proclamation for sale was made after reduction of the upset price and the sale was scheduled to be conducted. All these aspects, surprisingly escaped the attention of the learned trial judge. Had the trial judge considered the above said aspects, it would have readily rejected the application holding that a false reason had been alleged and the inordinate delay was not explained. The very tenor of the order passed by the learned trial judge will show that the learned trial judge, while exercising jurisdiction conferred on her, has committed illegality and material irregularity fitting in clause (c) of sub clause (1) of Section 115 CPC. This court does have no hesitation in coming to the conclusion that the order of the learned trial judge is to be reversed and set aside in exercise of the power of revision of this court.
In the result, the civil revision petition succeeds and the same is allowed. The order of the learned Principal District Munsif, Tindivanam dated 22.08.2006 made in I.A.No.358/2004 in O.S.No.129/1998 is set aside. I.A.No.358/2004 shall stand dismissed. However, there shall be no order as to cost in the civil revision petition. Consequently, the connected miscellaneous petition is closed.
27.01.2014 Index : Yes/No Internet : Yes/No asr/-
To The Principal District Munsif, Tindivanam P.R.SHIVAKUMAR,J.
asr/-
C.R.P.(NPD)No.2070 of 2010Dated : 27.01.2014