Madras High Court
Madalaimary(Died vs Iruthayaraj on 14 July, 2023
Author: C.Saravanan
Bench: C.Saravanan
BEFO+RE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.06.2023
PRONOUNCED ON : 14.07.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.306 of 2020
and C.M.P.No.1774 of 2020
Sathupremsingh(died)
1. Madalaimary(died
2. Minor.S.M.Arathana
(2nd petitioner rep.by her mother
and guardian namely the 1st petitioner)
(Memo in USR.No.2484 dt 01.02.2021
is recorded as P1 died vide Court order
dated 23.04.2021 made in
CRP(MD)No.306 of 2020)
(Minor 2nd petitioner rep.by her
guardian and next friend J.Arokkiamary)
( J.Arokkiamary is appointed as the
guardian of minor 2nd petitioner vide order
dated 20.06.2023 made in CMP(MD)No.1642/23
in CRP(MD)No.306/2020) .. Petitioner
vs.
Iruthayaraj ... Respondent
Prayer : Civil Revision Petition is filed under Article 227 of Constitution
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Page No. 1 of 16
of India, to call for the records and set aside the fair and decretal order
dated 01.10.2019 made in I.A.No.204 of 2017 in O.S.No.1047 of 2003 in
on the file of the Sub Court, Thuraiyur.
For Petitioner : M/s.J.Maria Roseline
For Respondent : Mr.A.John Vincent
ORDER
The petitioners are aggrieved by the impugned order dated 1.10.2019 passed by the Sub Court, Thuraiyur,
2. The lower Court on examination of facts found the delay to be for a period of 1771 days. During the pendency of I.A.No.204 of 2017 the 1st defendant in O.S.No 1047 of 2003, namely Sathupremsingh the father of the 2nd petitioner died during the pendency of I.A.No.204 of 2017.
3. In this Civil Revision Petition, the petitioner has challenged the impugned order dated 01.10.2019 passed by the Sub Court, Thuraiyur in I.A.No.204 of 2017 in O.S.No.1047 of 2003.
4. Relevant portion of the impugned order dated 01.10.2019 reads as under:-
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7. mLj;jjhf kDjhuH jdf;F 20.08.2009 md;W jhd; jw;nrayhf njhpate;jJ vd;W kDtpy; $wpAs;shH. jw;nrayhf njhpate;jjhf $Wk; kDjhuH vjd; %ykhf _____________ https://www.mhc.tn.gov.in/judis Page No. 3 of 16 vt;thW njhpate;jJ vd tpsf;fg;gltpy;iy.
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9. mLj;jjhf vjpHkDjhuH jug;gpy;> iftrk; cs;s kDthdJ 29.07.2013-y; 1) Affidavit not attested by the Advocate. 2) In Affidavit petitioner signature not obtained. 3) Other side notice not given. 4) F.D. sheet to be attached. vd;W ePjpkd;wj;jhy; jpUg;gg;gl;Ls;sJ vd;Wk;> Mdhy; 03.07.2012 md;Nw 1-k;
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5. By the impugned order dated 1.10.2019, the Court has refused to condone the delay of 1771 days in filing the application and to set aside the exparte decree dated 03.09.2004. I.A.No.204 of 2017 in O.S.No.1047 of 2003 filed under Section 5 of the Limitation Act was dismissed as there were large scale irregularities involved as to the date on which the Vakalat was signed and filed. The Court has also refused to believe the alleged claim made by late Sathupremsingh/1st defendant that he came to know about the exparte decree dated 03.09.2004 in O.S.No.1047 of 2003 only after a paper publication was effected on 20.08.2009 in E.P.No.303 of 2005.
6. Since the deceased Mr.SathuPremsingh/1st defendant in O.S.No 1047 of 2003 had not filed a proper affidavit, the Court below has found fault with the manner in which the affidavit was filed in support of I.A. No 204 of 2017. The Court below has also found fault with the deceased Mr.Sathu Premsingh/1st defendant in O.S.No 1047 of 2003 while passing the impugned order.
7. The Court has also found discrepancy in the alleged date of _____________ https://www.mhc.tn.gov.in/judis Page No. 6 of 16 knowledge on 28.08.2009, where the Vakalat was signed on 16.09.2008 in I.A. No 204 of 2017, the Court has inferred knowledge of the exparte decree dated 03.09.2004 at least 11 months prior to the alleged date of knowledge on 28.08.2009. The Impugned Order states that the suit summons was sent to the address given in the Sale Agreement dated 18.08.2000.
8. The claim of the first petitioner herein, the 2nd defendant in O.S.No.1047 of 2003, that only after the death of her husband she came to know about the alleged decree passed in O.S.No.1047 of 2003 on the file of the Sub Court, Thuraiyur on 20.08.2009 was also not satisfactorily substantiated.
9. The learned counsel for the petitioner would submit that the admitted position is, the suit has been filed by the respondent in O.S.No. 1047 of 2003 based on an alleged unregistered Sale Agreement dated 05.05.2001. The agreement was in respect of 97 cents with buildings and electricity connection in Thuraiyur Village.
10. It is further submitted that the summon was not served on the defendants namely deceased Sathupremsingh and deceased Madalimary _____________ https://www.mhc.tn.gov.in/judis Page No. 7 of 16 who are the parents of the second petitioner herein. Thereafter, a paper publication was said to have been effected on 17.02.2004 by way of substituted service of suit summons of which they had no knowledge. It is only thereafter the defendants were set exparte, exparte decree came to be passed on 03.09.2004.
11. It is further submitted that the exparte decree that has been passed by the Court on 03.09.2004 is cryptic and bereft of details and does not satisfy the requirement of Judgment in Section 2(9) and and Decree in Section 2(2) of Code of Civil Procedure.
12. It is submitted that such an exparte decree in the suit for a specific performance cannot be sustained in the light of the fact that the order of setting an exparte was without proper service of suit summons on the defendants.
13. It is submitted that only a paper publication by way of substituted service of suit summon in O.S.No.1047 of 2003 was made on 17.02.2004 before an exparte decree came to be passed on 03.09.2004.
14. It is further submitted that the first defendant namely the _____________ https://www.mhc.tn.gov.in/judis Page No. 8 of 16 deceased Sathupremsingh suffered from heart ailment hence there was a delay in filing an application to set aside the exparte decree dated 03.09.2004. Therefore, I.A.No.204 of 2017 was filed to condone the delay of 391 days from the date of knowledge.
15. The learned counsel for the petitioner has placed reliance on the decision of this Court, Chennai in Meenakshi sundaram Textiles Vs. Valliammal Textiles Ltd., 2011 (3) CTC 168.
16. It is also submitted that if a proper Judgment and Decree was passed, the Appellate Court could either set aside or uphold the Judgment and Decree. However, without any reasons, the Judgment and Decree was passed on 03.09.2004. It cannot be said to be a Judgment and Decree in the eye of law.
17. It is submitted that the Trial Court has committed a grave error in dismissing I.A.No.204 of 2017 despite discrepancies and inconsistencies pointed out. According to the learned counsel for the petitioner, the fact remains that there was no proper service of suit summons on the defendants. It is further submitted that in any event, _____________ https://www.mhc.tn.gov.in/judis Page No. 9 of 16 Judgment and Decree dated 03.09.2004 is not executable in the manner in which it is passed.
18. Per contra, the learned counsel for the respondent submits that the impugned order of the Sub Court, Thuraiyur dated 01.10.2019 is well reasoned and requires no interference. It is submitted that the affidavit filed by late Sathupremsingh, first defendant in I.A.No.204 of 2017 in O.S.No.1047 of 2003 contains a bundle of contradictions which has been rightly exposed by the Trial Court and therefore no interference is warranted under Article 227 of the Constitution of India.
19. That apart, it is submitted that the respondent has also filed E.P.No.303 of 2005 for execution of Sale Deed and has deposited the balance sale consideration of Rs.25,000/- on 06.08.2004 before the decree came to be passed on 03.09.2004. Hence, the learned counsel for the respondents prays for dismissal of the present Civil Revision Petition as the respondent is unable to enjoy the fruits of the decree dated 03.09.2004 on account of pendency of I.A.No.204 of 2017 before the Sub Court, Thuraiyur and now on account of pendency of this Civil Revision Petition.
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20. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent.
21. O.S.No.1047 of 2003 was filed for specific relief based on an alleged unregistered Sale Agreement dated 05.05.2001 said to have been executed by 1st defendant ( since deceased) namely Sathupremsingh and the 2nd defendant/1st petitioner (since deceased). The agreement was in respect of 97 cents with buildings and electricity connection in Thuraiyur Village.
22. The first petitioner herein and her late husband Sathupremsingh were the defendants in O.S.No.1047 of 2003. They were set exparte on 03.09.2004. The first petitioner is the wife of late Sathupremsingh the first defendant in O.S.No.1047 of 2003. The second petitioner herein is the minor daughter of the first defendant and second defendant(first petitioner herein) in O.S.No.1047 of 2003.
23. The aforesaid exparte decree was pronounced by the Lower Court on 03.09.2004 on the strength of an agreement dated 05.05.2001 which is alleged to have been signed by the two defendants in O.S. No 1047 of 2003 i.e., by the mother and the father of the second petitioner _____________ https://www.mhc.tn.gov.in/judis Page No. 11 of 16 herein whose interest now is represented by her guardian Arokkiyamary.
24. The first defendant Sathupremsingh died on 03.07.2012. During the pendency of the present Civil Revision Petition, the first petitioner/second defendant in O.S.No.1047 of 2003 herein the wife of the first defendant late Sathupremsingh also died on 24.05.2020.
25. The decree passed in I.A.No.204 of 2017 indicates that it was filed on 18.06.2014. It is long after the death of Sathupremsingh on 03.07.2012. Therefore I.A. No.204 of 2017 filed to condone the delay of 391 days in filing the application to set aside the exparte decree dated 03.09.2004 on 18.06.2014 is based on fabricated /forged signature of late Sathupremsingh who died on 03.07.2012. The Court ought not to have been numbered I.A.No.204 of 2017. I.A.No.204 of 2017 was however taken to the file on 09.07.2014.
26. There is a suspicion surrounding the filing of I.A.No.204 of 2017 on 18.06.2014. I.A.No.204 of 2017 could not have been filed by late Sathupremsingh after his death on 03.07.2012. This has to be probed as prima facie there is forgery. The learned Sub Judge, Thuraiyur should probe and take suitable action against the persons who has forged the _____________ https://www.mhc.tn.gov.in/judis Page No. 12 of 16 signature of late Sathupremsingh who died on 03.07.2012 in I.A.No.204 of 2017.
27. Before the order was reserved in this Civil Revision Petition, an order in C.M.P.(MD) No.1642 of 2023 was passed on 20.06.2023 to protect the interest of the second petitioner who is the minor daughter of the defendants in O.S.No.1047 of 2003. The second petitioner namely minor S.M.Aradhana is now represented by her maternal aunt named Ms.J.Arokkiamary as her guardian.
28. At the same time, Judgment and Decree dated 03.09.2014 O.S.No.1047 of 2003 is cryptic and is not reasoned. Remedy in a suit for specific performance of a contract was a discretionary remedy under the provisions of the Specific Relief Act 1963 during the period in dispute. Judgment and Decree dated 03.09.2013 in O.S.No.1047 of 2003 bears no reasons and has been passed mechanically.
29. Therefore, the judgment and decree passed exparte on 03.09.2014 also cannot be considered as the Judgment and Decree of the Court in the eye of law in the light of the decision of the Division Bench _____________ https://www.mhc.tn.gov.in/judis Page No. 13 of 16 of this Court in Meenakshisundaram Textiles, rep.by its Managing Director vs. Valliammal Textiles Ltd., 2011(3) CTC 168.
30. The impugned order also states that the defendants (since deceased) had shifted to Kanyakumari and had filed proof to that effect before the Court. The Court has dismissed I.A.No.204 of 2017 only on account of inconsistencies in the affidavit filed in support of I.A.No.204 of 2017. The impugned order has to be interfered with as interest of minor is involved.
31. The Court should have weighed the interest of the second petitioner namely minor S.M.Aradhana, although the defendants (since deceased) did not file a proper affidavit by themselves explaining the reasons for delay in filing I.A.No.24 of 2017 earlier. Records further indicate that there was only a deemed service of suit summons pursuant to the paper publication effected on 17.02.2004 by the respondents/plaintiff.
32. In view of the above, Court is inclined to set aside the impugned fair and decretal order dated 01.10.2019 passed in I.A.No.204 of 2017 in O.S.No.1047 of 2004 by the Sub Court, Thuraiyur. The petitioners shall however deposit a sum of Rs.25,000/- to the credit of the _____________ https://www.mhc.tn.gov.in/judis Page No. 14 of 16 above suit towards cost within a period of six weeks from the date of receipt of a copy of this order.
33. On such compliance, the learned Sub Judge, Thuraiyur shall revisit the issue afresh and pass a fresh order taking note of the interest of the second petitioner who is a minor. As mentioned above, before proceeding further, the learned Sub Judge, Thuraiyur shall also examine as to who forged the signature of late Sathupremsingh (the first defendant) and initiate suitable action to prosecute those involved in the forgery, if it was motivated and not with an intention to protect the interest of the second petitioner namely minor S.M.Aradhana.
34. This Civil Revision Petition stands allowed with the above observation. No costs. Consequently, connected miscellaneous petition is closed.
14.07.2023
Index : Yes/No
Neutral Citation : Yes/No
jen/kkd
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C.SARAVANAN, J.
jen/kkd
To:
The Sub Court,
Thuraiyur.
Pre-delivery Order in
C.R.P(MD)No.306 of 2020
14.07.2023
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