Madras High Court
The District Collector vs Vaithialingam
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 26.04.2021
PRONOUNCED ON: 03.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P. (NPD) No. 150 of 2021
1. The District Collector
Ariyalur.
2. The Tahsildar
Jeyamkondam
3. The Commissioner
Panchayat Union
Andimadam.
4. The President
Village Panchayat Board,
Devanur ... Petitioners/Petitioners/Appellants
-Vs-
Vaithialingam ... Respondent/Respondent/Respondent
PRAYER: Civil Revision Petition filed under Section 115 of CPC against
the fair and decreetal order dated 05.08.2019 made in I.A.No. 1299 of 2018
in A.S.No. 56 of 2017 on file the Hon'ble Sub Court, Jeyamkondam.
https://www.mhc.tn.gov.in/judis/
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For Petitioners : Mr.C.Harsha Raj
Counsel for Government Side
Mr. Y.T. Aravind Gosh
Additional Government Pleader
For Respondent : Mr. S. Nagarajan
ORDER
This Civil Revision Petition has been filed by the appellants in A.S. No. 56 of 2017, which was pending on the file of the Sub Court, Jayankondam aggrieved by the order dated 05.08.2019 dismissing I.A. No. 1299 of 2018, which Interlocutory Application had been filed by the petitioners herein under Section 5 of the Limitation Act, 1963, to condone the delay of 329 in filing application to restore A.S. No. 56 of 2017, which had been dismissed for non prosecution on 19.12.2017.
2. The petitioners herein had filed A.S. No. 56 of 2017 against the judgment and decree dated 18.07.2013 in O.S. No. 259 of 2007 on the file of the District Munsif Court, Jayankondam.
3. O.S. No. 259 of 2007 had been filed by the plaintiff, https://www.mhc.tn.gov.in/judis/ 3 Vaithialingam against 4 defendants, namely, the District Collector, Jayankondam, the Tahshildar, Jayankondam, the Commissioner, Panchayat Union, Andimadam and the President, Village Panchayat Board, Devanur, seeking declaration of tile and recovery of possession with respect to the 2 items of suit property, namely, S. No. 230/2A and S. No. 230/3B and also for mandatory injunction to carry out necessary mutations in the revenue records with respect to the 1st item of suit property, namely S. No. 230/3A and to determine future damages under Or. 20 Rule 12 CPC and for costs of the suit.
4. As stated, the suit was decreed by judgment dated 18.07.2013. The revision petitioners/defendants filed A.S. No.20 of 2015 before the Sub Court, Ariyalur. On District bifurcation, the Appeal Suit was transferred to Sub Court, Jayankondam and renumbered as A.S. No. 56 of 2017. It was dismissed for non prosecution on 19.12.2017. The revision petitioners/appellants in the Appeal Suit filed I.A. No. 1299 of 2018 u/s 5 of the Limitation Act, 1963 to condone the delay of 329 days in filing petition to restore the Appeal Suit. That application was dismissed on 05.08.2019. Questioning that order, the present Revision has been filed. https://www.mhc.tn.gov.in/judis/ 4
5. O.S. No. 259 of 2007 had been filed by the plaintiff with respect to S. No. 230/3A measuring 9.0 ares and S. No. 230/3B measuring 1.22.5 ares. S. No 230/3 B is to the South of S. No.230/3A. It has been claimed by the plaintiff that the 4th defendant, had attempted to remove the trees in S. No. 230/3A to put up a road. When the plaintiff checked the F.M.B. register, he found it had been categorized as detailed road. He claimed title over both the items of suit property by Sale Deed dated 07.06.1990. It is under these circumstances that he had filed the suit against the 4 defendants, namely, the District Collector, Jayankondam, the Tahshildar, Jayankondam, the Commissioner, Panchayat Union, Andimadam and the President, Village Panchayat Board, Devanur, seeking declaration of tile and recovery of possession with respect to the 2 items of suit property and also for mandatory injunction to carry out necessary mutations in the revenue records with respect to the 1st item of suit property and to determine future damages under Or. 20 Rule 12 CPC and for costs of the suit.
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6. The 3rd defendant, the Commissioner, Panchayat Union, Andimadam, filed written statement. It is the claim of the 3rd defendant that the 1st item of suit property, namely S. No. 230/3A measuring 0.25 cents was always a common pathway used by the Irular community and other people to access their fields and their village. It had been stated that the plaintiff’s lands were only S. No. 230/3B, measuring 3.00 acres. It had been stated that the plaintiff had wrongfully obtained patta over S. No. 230/3A, common pathway. It had been stated that funds had been allotted by the 1 st defendant to upgrade the common pathway into a pucca road under the Sampoorna Gramin Rozgar Yojana by proceedings in 2797/2007/24 and resolutions had also been passed to this effect by the 3rd defendant in proceedings Na.Ka.3/1512/17, dated 21.05.2007 and the 4th defendant had also executed the work by 20.07.2007. The 3rd defendant claimed that the plaintiff did not protest while the work was executed, but had instituted the suit thereafter on the basis of records unlawfully obtained. The 3rd defendant urged that the suit should be dismissed. https://www.mhc.tn.gov.in/judis/ 6
7. The parties went to trial. Very strangely, on the side of the defendants, no documents were filed or marked which gives an uneasy feeling of lurking suspicion over the bonafide of the defendants/Government Advocate for the defendants during trial in the year 2013. The Written Statement filed in the year 2008 was given a complete go by. An issue whether the 1st item of suit property, S. No. 230/2A was a common pathway/road was not at all framed.
8. It was no wonder the suit was decreed on 18.07.2013, in the face of the specific averment in the written statement that S. No. 230/2A was originally a common pathway for over 100 years and now a road, relaid recently, after due process by the 1st and 3rd defendants, and used by the Irular community people and other villagers to access their fields and villages.
9. The defendants filed A.S. No. 20 of 2015 before the Sub Court, Ariyalur. The Appeal Suit was transferred to Sub Court, Jayankondam and renumbered as A.S. No. 56 of 2017. The lackadaisical and negligent attitude https://www.mhc.tn.gov.in/judis/ 7 of the Government Counsel is evident since, the learned Sub Judge had noted the presence of the Government Advocate and still proceeded to dismiss the Appeal Suit for non prosecution. The Government Advocate did not raise any protest.
10. The preamble portion of the Order dismissing the Appeal Suit for non prosecution is very revealing. The learned Judge had recorded the presence of the Government Advocate, Mr. B. Ramagovindarajan, and since the appellants/defendants did not appear though called, the Appeal Suit was dismissed for non prosecution. The role, or rather, abstaining from the call of duty by the appellants/defendants/Government Advocate is very starking. Thereafter, with delay of 329 days, an application was filed to restore the Appeal Suit. The reason given by the deponent of the affidavit filed in support of the petition was that the officials who were looking after the file had been transferred and he had examined the records only recently and had immediately taken steps to file the application. He claimed that the appellants have a good case on merits and sought condonation of delay. The application, in I.A. No. 1299 of 2018 was naturally dismissed by order dated 05.08.2019, which order is now questioned in this Revision. https://www.mhc.tn.gov.in/judis/ 8
11. The order of the learned Sub Judge, Jayankondam dismissing I.A. No. 1299 of 2019 does not suffer from any legal infirmity. However, when collusion is evident on the face of the records, and when public interest is involved, it is only appropriate that the order is re-examined by viewing it from a slightly different angle. There have been precedents, when Hon’ble Supreme Court had stepped in to restore justice, when, particularly, Government officials are suspected to have acted prejudicial to public interest.
12. In G. Ramegowda Major v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142, the Supreme Court while opining that the law of limitation is, no doubt, same for a private citizen as for the government authorities held that:
“In litigations to which government is a party there is yet another aspect which, perhaps cannot be ignored. If appeals brought by government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The https://www.mhc.tn.gov.in/judis/ 9 decisions of government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross purposes with it.
Therefore, in assessing what, in a particular case, constitutes ‘sufficient cause’ for purposes of section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government. Governmental decisions are https://www.mhc.tn.gov.in/judis/ 10 proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making, not impermissible. It is rightly said that those who bear responsibility of government must have ‘a little play at the joints’. Due recognition of these limitation on governmental functioning of course, within reasonable limits—is necessary if the judicial approach is not to be rendered unrealistic. It would perhaps, be unfair and unrealistic to put government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the government placed, the government in a predicament and that it was one of those cases where the malafides of the officers should not be imputed to government. It relied upon and trusted its law officers.” Emphasis Supplied https://www.mhc.tn.gov.in/judis/ 11
13. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, 1987 (2) SCC 107, the Supreme Court has opined that “the power to condone delay has been conferred in order to enable the courts to do substantial justice to the parties to dispose of matters on ‘merits’. The expression ‘sufficient cause’ employed by the Legislature is adequately elastic to enable courts to apply the law in a meaningful manner which subserves the ends of justice—that being the life-purpose for the existence of the institution of courts.” Emphasis Supplied
14. It must also be kept in mind that an Appeal Suit is a continuation of trial. A responsibility is cast on the First Appellate Court to probe into the facts and determine whether all issues have been framed in the first place, and answered with due reasons in the second place by the Trial Court.
15. The First Appellate Court is also a Court where facts are settled. The framework of Section 96 and Order 41 CPC mandates so. https://www.mhc.tn.gov.in/judis/ 12
16. Order 41 Rule 23 provides for Remand by the Appellate Court where a suit had been disposed of upon a preliminary point and the decree is reversed. The Appellate may also direct what issue or issues shall be tried in the case so remanded. This is an instance of examining the facts and adjudicating on them.
17. Order 41 Rule 23 A provides for remand when a decree is reversed on Appeal and re-trial is considered necessary. Again there is re- examination of facts. Order 41 Rule 25 provides for issues to be framed by the Appellate Court when it is found that the Trial Court had omitted to frame or try any issue. The Appellate Court also has the power to direct the Trial Court to take additional evidence, if required. Again facts come up for proper determination.
18. Order 41 Rule 27 provides for additional evidence to be produced before the Appellate Court. Again, it is settlement of facts. Order 41 Rule 33 provides the power to an Appellate Court to ‘mould’ a decree in appropriate cases. This can be resorted only when facts are appreciated again.
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19. Thus, a serious duty is cast on a First Appellate Judge to re- examine the pleadings, examine the issues framed, examine whether proper issues have been framed, examine whether the issues have been answered, examine requests for additional evidence to be produced, if such a request is placed, and then render a Judgment in accordance with Order 41 Rule 31 CPC.
20. In Malluru Mallappa v. Kuruvathappa, (2020) 4 SCC 313 at page 317 it had been held as follows :
“11. In Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] it was held that a right of appeal carries with it a right of rehearing on law as well as on fact, unless the statute conferring a right of appeal limits the rehearing in some way as has been done in second appeal arising under CPC.
12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74] it was held thus : (SCC pp. 77-78, para 5) https://www.mhc.tn.gov.in/judis/ 14 “5. … In the well-known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe.
According to Article 1762, the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial.”
13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact https://www.mhc.tn.gov.in/judis/ 15 and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons.
The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv.
Purushottam Tiwari [Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179] , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , B.M. Narayana Gowda v.
Shanthamma [B.M. Narayana Gowda v.
Shanthamma, (2011) 15 SCC 476 : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v.
Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] ].” https://www.mhc.tn.gov.in/judis/ 16
21. When examining the facts of the instant case on the basis of the dictums stated above, I hold it is imperative that the revision petitioners/appellants in A.S. No. 56 of 2017 are afforded an opportunity to address the First Appellate Court and invite the said Court to render a judgment on merits after examining the facts pleaded, issues framed and the determination of the issues by the Trial Court.
22. In view of the public interest involved since there is a specific averment in the Written Statement that S. No. 230/2A was a common pathway for nearly 100 years and had been relaid as a road and is used as a passage to reach their fields and villages by the Irula Community and other villagers, and such averment had been given a complete go by during trial by the Government Officials/ Advocate, either deliberately or negligently, I hold that reappreciation of the Judgment dated 18.07.2013 passed by the Principal District Munsif, Jayankondam, in O.S. No. 259 of 2007 is required.
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23. I would however, in view of extremely recalcitrant attitude of the Government Officials involved also impose costs as a pre-condition for A.S No. 56 of 2017 being restored. The respondent/plaintiff has obtained a decree and should not suffer to the litigation being prolonged by revival of A.S. No. 56 of 2017. Accordingly, costs of Rs.25,000/- (Rupees twenty five thousands) is imposed, payable by the revision petitioners/appellants in A.S. No. 56 of 2017 to the respondent/plaintiff on or before 15.06.2021, by acting on a web copy of this order. On proof thereof, A.S. No. 56 of 2017 may be taken up for further hearing by the learned Sub Judge, Jayankondam.
24. In view of the above observations, the Civil Revision Petition is allowed and the order dated 05.08.2019 in I.A. No.1299 of 2018 in A.S. No. 56 of 2017, passed by the Sub Judge, Jayankondam is set aside. I direct that A.S. No. 56 of 2017 be restored on file, subject to payment of costs as indicated above, and the learned Sub Judge, Jayankondam may dispose it in manner approved by law and on merits, without being swayed by any of the observations made herein. I am confident that cooperation would be extended by the learned Government Advocate for the Appellants and by the learned Counsel for the Respondent in this regard. https://www.mhc.tn.gov.in/judis/ 18 C.V.KARTHIKEYAN, J.
vsg
25. In the result, the Civil Revision Petition is allowed with costs of Rs.25,000/- (Rupees twenty five thousands only) payable by the petitioners/defendants to the respondent/plaintiff on or before 15.06.2021.
03.06.2021 vsg Index: Yes/No Internet: Yes/No. Speaking / Non speaking Pre-delivery Order made in C.R.P. (NPD) No. 150 of 2021 https://www.mhc.tn.gov.in/judis/