Madras High Court
Subhashini Sathyaraj Kumar vs S.Bhaskar on 21 September, 2021
C.R.P.No.1682 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 18..08..2021
Orders Pronounced on : 21..09..2021
CORAM
THE HON'BLE MRS.JUSTICE S.KANNAMMAL
Civil Revision Petition No.1682 of 2017
and
C.M.P.No.7925 of 2017
1.Subhashini Sathyaraj Kumar
2.D.Sathyaraj Kumar
Rep. By their Power of Attorney
Perumal Selvaraj,
Son of Perumal,
68, Oomer Road, Ambur,
Ambur Taluk, Vellore District.
... Petitioners
-Versus-
S.Bhaskar
... Respondents
Petition filed under Article 227 of the Constitution of India, praying to set
aside the order and decretal order dated 01.03.2017 made in I.A.No.223 of 2015 in
O.S.No.86 of 2012 by the learned Principal District Judge, Vellore.
For Petitioners : Mr.V.Raghavachari
For Respondent : M/s.K.V.Law Firm
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C.R.P.No.1682 of 2017
ORDER
This Civil Miscellaneous Petition has been filed seeking to set aside the order dated 01.03.2017 whereby the learned Principal District Judge, Vellore, has refused to condone the delay of 687 days in filing the application to set aside the ex parte decree dated 14.09.2013 made in O.S.No.86 of 2012 and thereby dismissed the delay condonation application.
2. The brief facts leading to the filing of the civil revision petition are as follows:- The revision petitioners herein are defendants and the respondent herein is the plaintiff in the suit. The suit was filed for specific performance of contract of an unregistered agreement of sale entered into between the 1st defendant and the plaintiff on 06.02.2009. According to the respondent, 1st petitioner is the absolute owner of the suit property having purchased it through a sale deed dated 20.02.2002 registered as Doc.No.652 of 2002. The 1st petitioner offered to sell the suit property to the respondent for a total consideration of Rs.25,00,000/- and the offer was accepted by the respondent. Accordingly, an agreement of sale was reduced into writing on 06.02.2009 but it was not registered. The respondent paid the entire amount which was acknwoeldged by the 1st respondent. When the 2 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 agrement of sale was subsisting the 1st defendant executed a settlement deed in respect of the suit property in favour of the 2nd petitioner on 27.05.2010. The above said settlement deed will not bind on the respondent. As the 1 st petitioner refused to execute the sale deed, the respondent issued a legal notice on 07.02.2012 calling upon the 1st defendant to fix a date for registration of sale deed. Desptie notice, the 1st petitioner did not come forward to execute the sale deed and hence, the suit.
3. In the suit, according to the respondent, summons were served on the petitioners. Despite receipt of summons, the petitioners neither appeared in person nor represented through a counsel. The petitioners allowed the suit to be decreed exparte on 14.09.2013. Pursuant to the exparte decree, the respondent initiated execution proceeding. In the execution proceedings also, despite notice, the petitioners were remaining absent and as such they were set exparte. When the EP was pending for execution of sale deed and posted for production of Non Judicial Stamp Papers, the petitioners had chosen to file an application to set aside the exparte decree with inordinate delay of 687 days. 3 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017
4. The case of the petitioners in I.A.No.223 of 2015 in brief is as follows:
The petitioners are represented by their Special Power of Attorney Holder Shri.Perumal Selvaraj. The petitioners are defendants in the suit. The respondent herein has filed the suit for specific performance of contract of agreement of sale 06.02.2009. Now, the petitioners have authorized their power agent to defend the suit and adduce oral and documentary evidence. According to the petitioners, they have been permanently residing in Oman. They have not received any summons in the suit. The suit was decreed on 14.09.2013. The petitioners never entered into any agreement of sale with the respondent. The alleged suit sale agreement is a forged one. The respondent had managed to get an exparte decree in his favour by suppressing the fact that the petitioners have been residing in Oman. The petitioners recently came to know on obtaining certified copies of plaint and other documents that the respondent had fraudulently created the suit sale agreement and filed the suit with an intention to grab the property in question. As the petitioners have been residing in Oman, they were unable to file set aside application in time and therefore, there had occurred a delay of 687 days in filing the application to get the exparte decree set aside. If this petition is allowed, no prejudice would be caused to the respondent , but on the other hand, if the delay is not condoned the 4 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 petitioners would be seriously prejudiced.
5. The respondent vehemently opposed the delay condonation petition inter alia contending that despite several opportunities, the petitioners let the suit to be decreed exparte on 14.09.2013. In the Execution Proceedings also, despite notice, the petitioners remained exparte. At the time when the EP was posted for production of Non Judicial Stamps for execution of the sale deed, the petitioner had come forward to file an application seeking to set aside the exparte decree with inordinate delay of 687 days. The cause for the delay expressed by the petitioner is baseless. The petitioners are put to strict proof for each and every day of delay. There are no merits in the delay condonation application and therefore, it deserves only to be rejected in limine.
6. The learned Principal District Judge having found that though the petitioners have stated that they had come to know about ex parte decree when they were served with notice in the execution proceedings on 01.09.2014, they had remained ex parte in the execution proceedings and they had chosen to file the set aside application with an inordinate delay of 687 days and, therefore, the learned
5 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 Judge has refused to condone the delay for want of sufficient cause. Hence, the petitioners have come up with the present revision petition.
7. The learned counsel for the petitioners submitted that the unregistered sale agreement alleged to have been executed by the 1st petitioner on 06.02.2009 has been fradulently created by the respondent in order to grab the suti property. The suit property was worth more than Rs.70,00,000/- in the year 2009. The 1st petitioner had never seen the respondent nor met him at any point of time. The suit agreement is nothing but a forged one. The 1st petitioner did not receive any amount from the respondent. The learned counsel further submitted that the petitioners have been residing in Oman permanently and no summons were served on them in the suit. Knowing fully well that the petitioners have been residing abroad, the respondent had managed to get an exparte decree with the aid of the forged agreement of sale. Only recently, the petitioners came to know about the exparte decree passed against them. As the petitioners have been residing outside the country and also due to their ill health and personal inconvenience, they could not file an application to set aside the exparte decree immediatley. The petitioners have good defence in the suit and therefore, an opportunity to contest the suit on 6 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 merits has to be given for them. If the delay is condoned no prejudice would be caused to the respondent, on the other hand, if the delay is not condoned, the petitioners would be put to serious hardships.
8. Per contra, the respondent vehemently opposed the delay condonation petition inter alia contending that despite several opportunities, the petitioners let the suit to be decreed exparte on 14.09.2013. In the Execution Proceedings also, despite notice, the petitioners had remained ex parte. At the time when Execution Petition has been posted for production of Non Judicial Stamps, the petitioner had come forward to file the set aside application with inordinate delay of 680 days. The cause for the delay expressed by the petitioner is baseless. The petitioners are put to strict proof for each and every day of delay.
9. The learned counsel appearing for the respondent further contended that the only question that arises of consideration before this court is as to whether the delay had been property explained or not and that the merits of the suit cannot be gone into by this court at this stage. The petitioners did not show sufficient cause for condonation of delay. There are no merits in the revision and the same 7 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 deserves only to be dismissed. The learned Principal District Judge after having appreciated the facts that the petitioners had failed to prove the sufficient cause, rightly refused to condone the delay of 687 days which does not warrant interference at the hands of this court.
10. This court has considered the rival submissions meticulously and also perused the available records carefully
11. It could be seen from the xerox copy of vakalath filed in the Execution Proceedings, produced by the learned counsel for the petitioners, that the petitioners were residing in Oman during 2014. The learned counsel for the petitioners submitted that the petitioners have been permanently residing in Oman and therefore, they have appointed a special power of attorney agent to look after their case.
12. The suit is for specific performance. The petitioners denied the agreement and the payment of sale consideration. According to them, the suit sale agreement is a forged one. However, this court is conscious of the legal position 8 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 that merits of the suit cannot be gone into in this revision petition and therefore, this court is not inclined to go into the merits of the contention of the parties. What is to be gone into is whether the petitioners had shown sufficient cause for condoning the delay.
13. Insofar as delay condonation is concerned, it has been consistently held by the Honourable Supreme Court that the expression ‘sufficient cause’ should be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay. Though the petitioners denied the service of summon, the learned judge of the trial court had satisfied with the service of summons. The petitioners claim that they have been permanently residing in Oman. Admittdlly, notice in the execution proceedings also sent to the local address at Katpadi, Vellore. According to the petitioners, they came to know about the exparte decree only recently when they were served with notice in the Execution Petition. The learned Principal District Judge has refused to cndone the delay mainly on the ground that each and every day delay has not been explained and there was no valid reason assigned for the delay. It is needless to state that the length of delay is not a matter for deciding the petition under Section 9 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 5 of the Limitation Act and rendering substantial justice is the paramount consideration. As already stated, the petitioners dispute the sale agreement. Therefore, this court is of the view that an opportunity must be given to the petitioners to meet with the merits of the case. Considering the facts and circumstances of the case and the amount deposited by the petitioners as directed by this court and also the law on condonation of delay, this Court is inclined to take a lienient view overriding technicalities in order to subserve the cause of justice and condone the delay on cost to the respondent.
In the result, the civil miscellaneous petition is allowed on condition that the petitioners pay a sum of Rs.10,000/- as costs in the application directly to the respondent through his counsel appearned in the Execution Proceedings within a period of four weeks from the date of receipt of a copy of this order failing with the revision petition will stand dismissed automatically without any further reference to the court. Considering the fact that the suit has been filed for ejectment and the long pendency of the same, in the event the petitioners pay the cost as directed above, learned Prl. District Judge, Vellore, shall dispose of the suit 10 of 12 http://www.judis.nic.in C.R.P.No.1682 of 2017 in accordance with law, as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. The parties to the suit are directed to cooperate with the trial court for early disposal of the suit. Consequently, connected CMP is closed.
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To
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