Madras High Court
R. Vaidyalingam (Since Deceased) And ... vs Secretariat Co-Operative House ... on 8 November, 1994
Equivalent citations: (1995)1MLJ385
ORDER Srinivasan, J.
1. In these matters when they were called in the morning session at about 01.10 p.m. a representation was made on behalf of Mr. R. Subramaniam counsel for the appellants in Transfer Appeal Suit No. 1005 of 1994 that he was engaged in some other court and he would like the case to be taken at 2.15 p.m. Mr. M. Renka appearing for the second respondent in the appeal, said that he would argue the review applications filed by him which are before us as Review Application Nos. 21 and 107 of 1994. He started arguing review applications. We heard him in part. We adjourned for the lunch recess and when he assembled at 2.15 p.m. after the recess, Mr. Renka was absent. No representation was made on his behalf. Mr. R. Subramaniam, counsel for the appellants in Transfer Appeal No. 1005 of 1994 was present in court and we passed over the review applications to take up the transfer appeal for hearing. There are three civil miscellaneous petitions namely 14941 to 14943 of 1994 for setting aside the abatement caused by the death of the sole appellant in Transfer Appeal No. 1005 of 1994, to bring on record the petitioners as legal representatives of the deceased appellant and to appoint the second respondent as guardian for the minor 9th petitioner. As the three petitions had to be heard in the first instance before the appeal is taken up for hearing, we heard learned Counsel Mr. Subramaniam on those applications. We asked him whether the application for setting aside the abatement of the appeal could continue as the appeal had already been dismissed as abated on 17.3.1992 by the City Civil Court and that order was not challenged by the petitioners.
2. The relevant facts are as follows: When the appeal was pending in the City Civil Court, Madras as A.S. No. 273 of 1984, the sole appellant died on 18.2.1989. No application was filed in time to bring his legal representatives on record. An application to bring legal representatives on record was filed on 17.8.1989. That application was returned by the office of the City Civil Court for filing applications to set aside the abatement and other reliefs. Those applications were filed on 8.11.1989 and the application for bringing the legal representatives on record was also re-presented on that day along with the other applications. There was an application for condonation of delay of 30 days in seeking to set aside the abatement caused by the death of the appellant. That application was numbered as C.M.P. No. 1324 of 1991. On 17.3.1992, the City Civil Court dismissed that application refusing to condone the delay. On the same day, the City Civil Court passed another order dismissing the appeal as abated. In view of the dismissal of C.M.P. No. 1324 of 1991 the order dismissing the C.M.P. No. 1324 of 1991 was challenged in a revision petition before this Court in C.R.P. No. 1036 of 1993. There was no revision or appeal against the order passed in the appeal dismissing the same. By order dated 27.3.1993 this Court allowed the civil revision petition and condoned the delay in seeking to set aside the abatement caused by the death of the appellant in the appeal. The court said,
2. ...The explanation offered by the petitioners in the light of the steps already taken by them in the prior proceedings referred to earlier can be accepted and they have to be afforded an opportunity. The delay on the facts and circumstances of the case and in the light of the stand taken by the petitioners in the affidavit has to be regarded as having been satisfactorily explained and deserves to be condoned. Consequently, the civil revision petition is allowed.
3. After the said order was passed in the civil revision petition, the City Civil Court numbered the application for setting aside the abatement as C.M.P. No. 264 of 1993 and ordered notice on 6.12.1993. After notice was served, Mr. M. Renka had entered appearance for the second respondent in the matter and was taking time for counter. The matter was being adjourned for counter by the second respondent from 17.3.1994 onwards to 23.9.1994. It was thereafter the matter was brought to the notice of this Court by way of writ petition in W.P. No. 14292 of 1994. We had dismissed the writ petition on 15.9.1994 on the ground that the necessary parties were not impleaded in the writ petition.
4. The review applications filed by the second respondent in the appeal are only to review the order passed by us in the writ petition and in the connected writ appeal which arose out of execution proceedings. When we were in the midst of hearing the review applications, counsel chose to remain absent after the lunch on recess and we had to take up the next matter which is the appeal in question.
5. In this matter the argument of the learned Counsel for the appellant/petitioners is that the order dismissing the appeal is abated is only a dependent order and it was consequential to the order dated 17.3.1992 whereby the City Civil Court dismissed the application for condonation of delay of 30 days in seeking to set aside the abatement in bringing the legal representatives on record. Learned Counsel referred to the judgment of the Supreme Court in G. Ramegowda v. Special Land Acquisition Officer, Bangalore A.I.R. 1988 S.C. 897. In that case, appeals were filed in a land acquisition matter before the High Court, but after the expiry of the period prescribed for appeals, applications for condoning delay were filed under Section 5 of the Limitation Act. The High Court condoned the delay and the order condoning delay was challenged before the Supreme Court. By the time the Supreme Court took up the appeals before it, the main appeals were disposed of by the High Court and an argument was advanced that the main appeals having been disposed of, nothing survived in the appeals before the Supreme Court. The said argument was rejected by the Supreme Court holding that the orders passed in the main appeals were only dependent and if the appeals before the Supreme Court were allowed, the orders in the appeals made by the High Court would have been set aside consequently. The Supreme Court said as follows:
5. We might perhaps deal with the latter submission of Shri Veerappa first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delay. This is an incidence of what are called 'dependant-orders' and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory. The submission of Shri Veerappa is therefore insubstantial.
6. A similar question was considered by this Court in Lakshmi v. Maru Devi I.L.R. 37 Mad. 29. It was held in that case that with the reversal of the earlier order, the later order which depends for its validity upon the earlier one, ipso facto ceases to have any force. The proposition was reiterated in Kanakayya v. Lakshmayya , by a single Judge and approved by a Division Bench in 5. Venkatarama Ayyar v. Unnamalai Animal .
7. It has also been held by a Division Bench in Govinda Pathiyar v. Ananthanarayana Iyer (1955) 2 M.LJ. 665, that the right to have an appeal against the order refusing leave on the ground that the plaint does not show a cause of action is not lost because the original application for leave to sue informa pauperis itself has been dismissed for non-payment of court fees. It was held that the rejection for non-payment of court fees is only a consequential order flowing from the non-compliance of a basic order and if the basis goes, the consequence also disappears.
8. In the affidavit filed in support of the petitioners for setting aside the abatement, the reason given by the petitioners is that in the second week of August, 1989, i.e., 12th August, 1989, when the deponent of the affidavit and other members of the family were in the process of cleaning their house, they found that certain bundles having case numbers were available and it was thought at that time that it was another case which might be in the High Court and the City Civil Court. Immediately they contacted the counsel on record and informed him about the said papers. It was found that the case was one in the City Civil Court to which the deceased appellant was a party. According to the affidavit, the petitioners had no knowledge of the appeal till the time when they discovered the papers. Immediately after coming to know of the same, they filed applications to bring themselves on record on 17.8.1989 as stated earlier.
9. A common counter-affidavit was filed by the second respondent in C.M.P. No. 1324 of 1991, which was the application for condonation of delay in seeking to set aside the abatement. But the affidavit itself states that it was a common counter affidavit in all the petitions. That was filed in February, 1992. In the said counter affidavit in paragraph 6, the averments contained in the petitioners' affidavit are denied. It is stated in that paragraph that the allegation that the family members found out the papers in the process of cleaning of their house and got hold of the bundle was not true. It was also stated that applications not having been filed in time, they were not entitled to proceed further with the same.
10. We are inclined to accept the version given by the petitioners in their affidavit for the following reason. It is not in dispute that there were two other matters pending in this Court as C.R.P. No. 136 of 1985 and CR.P. No. 2453 of 1986. In both the revision petitions, the petitioners had filed applications to come on record as legal representatives well within the time. This circumstance shows that the petitioners would not have deliberately delayed the matter, if they had known about the appeal. Hence, we accept the version that there was a bona fide delay in seeking to set aside the abatement on account of the fact that the petitioners were not aware of the pendency of the appeal in the City Civil Court. It is to be noted that the two revision petitions referred to above were from orders passed by the trial court during the pendency of the suit. There is nothing on record to show that the petitioners were aware of the filing of the appeal after the dismissal of the main suit itself.
11. In the facts and circumstances of the case, we are of the view that the petitioners have made out a case for setting aside the abatement. When we called upon Mr. Renka, counsel for the respondent, to argue the three civil miscellaneous petitions, he refused to do so stating that he had been instructed by his client to argue the petitions for Review Applications No. 21 and 107 of 1994 in the first instance, before making any submission in the appeal. He also added that his client has stated that he had no confidence in this Bench in dealing with this appeal as according to him, we advised his client to change his counsel. There is no justification whatever for the reckless allegation made by learned Counsel for the second respondent. There was no such advice at anytime by this Bench. When Writ Petition No. 14292 of 1994 and Writ Appeal No. 793 of 1994 were being disposed of by us, Mr. Renka represented that he was withdrawing from this Court and he was not in any way concerned with the result in the matters. When we passed our orders, we directed the transfer of A.S. No. 273 of 1984 from the file of City Civil Court, Madras. We also gave directions to the early posting of the appeal in this Court so that the litigation, which has been pending for more than two decades, can be disposed of early. At that time we asked Mr. Renka about his convenience for a suitable date for the hearing of the appeal. He refused to express his convenience and said that he had nothing to do with the matter.
12. After the receipt of the records in the appeal, the same was registered in this Court as Tr.A.S. No. 1005 of 1994. It was posted before us on 3.10.1994 as directed by us earlier. On that date, neither Mr. Renka nor any other advocate had filed vakalath for the second respondent in this Court. The second respondent was personally present in court. Adjournment was sought on behalf of the appellants. While granting the adjournment, we told the second respondent that if Mr. Renka was not willing to appear in this matter, he should engage a counsel to argue the appeal in this Court as at that time, we were under the impression that Mr. Renka had not appeared before us on that date to do with the matter. It so happened that Mr. Renka filed vakalath later for the second respondent and appeared before us. We had never suggested to the second respondent that he should change his counsel or engage somebody other than Mr. Renka. There was no occasion or necessity therefor. Mr. Renka has now made an irresponsible and reckless statement before us that we advised his client to change his counsel and engage somebody else. It is unfortunate that Mr. Renka should make such an allegation knowing fully well that it was not true. As a matter of fact, when he appeared before us on 5.10.1994 he asked us whether we advised his client to change his counsel. We informed him as to what happened on 3.10.1994 and told him that he could him self file vakalath for the second respondent and appear for him. In spite of that, he has chosen to make that unwarranted allegation today before us only because we refused to permit him to argue the review applications while we were in the midst of hearing these civil miscellaneous petitions.
13. In any event, the refusal of Mr. Renka to argue the civil miscellaneous petition is wholly unjustified and is only an obstruction to the proceedings of this Court. If he had been present at 2.15 p.m. we would have continued with the hearing of the review applications. He chose to be absent and he entered the court hall only after some time when the civil miscellaneous petitions were being heard.
14. Mr. Renka cannot compel this Court to take up his matters whenever he thinks fit. When he was in the midst of a part heard, he ought to have been present when we reassembled at 2.15 p.m. He having chosen to remain absent, it is not open to him to press for the hearing of review applications before hearing these matters. The conduct of Mr. Renka, to say the least, is reprehensible.
15. We are convinced that there is sufficient ground for setting aside the abatement. Hence, CM.P. No. 14941 of 1994 is ordered. Consequently, CM.P. Nos. 14942 and 14943 of 1994 are also ordered.
16. After this order was dictated, Mr. Renka represented that he is not prepared to argue any matter connected with this appeal before us, as he has no confidence in this Bench. We have recorded this stated on his request.