Madras High Court
Murugan vs K.Elumalai on 20 April, 2010
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.04.2010 CORAM : THE HONBLE MR. JUSTICE S.TAMILVANAN C.R.P (NPD) No.1079 of 2010 and M.P.No.1 of 2010 1. Murugan 2. Shankar .... Petitioners vs. 1. K.Elumalai 2. M.Kannan .... Respondents Civil Revision Petition filed against the Fair and Decretal Order, dated 17.07.2009 passed in I.A.No.6195 of 2009 in O.S.No.3513 of 2006 on the file of the VII Asst. Judge, City Civil Court, Chennai. For Petitioners : Mr.T.Arulraj For Respondents : Mr.P.B.Balaji for R1 O R D E R
This Civil Revision Petition is directed against the order, dated 17.07.2009 made in I.A.No.6195 of 2009 in O.S.No.3513 of 2006 on the file of the VII Asst. Judge, City Civil Court, Chennai.
2. The petitioners herein were the defendants 1 and 3 in the suit, which was filed by the first respondent / plaintiff, seeking a decree directing the defendants to hand over the vacant possession of the schedule mentioned property therein. The defendants were called absent and set exparte and an exparte decree was passed on 11.09.2007 by the Court below. Aggrieved by which, the defendants 1 to 3 filed an Interlocutory Application under Order 9 Rule 13 CPC to set aside the exparte decree, with the petition under Section 5 of the Limitation Act to condone the delay of 586 days in filing the petition to set aside the exparte decree.
3. By a common order, dated 17.07.2009, the Interlocutory Application in I.A.No.6195 of 2009 and other two Interlocutory Applications filed in I.A.Nos. 6197 and 6198 of 2009 were dismissed by the Court below. Aggrieved by the order passed in I.A.No.6195 of 2009, this Civil Revision Petition has been filed. It is seen from the common order, dated 17.07.2009 that the other application in I.A.No.6197 of 2009 was filed under Order 9 Rule 13 CPC, seeking an order to set aside the exparte decree and I.A.No.6198 of 2009 was filed under Section 151 CPC, seeking an order to grant stay of all further proceedings pursuant to the exparte decree.
4. Mr.T.Arulraj, learned counsel appearing for the petitioners submitted that the suit was barred by limitation and that there was no proper service of summons to the petitioners and relying on the decision, Collector, Land Acquisition, Anantnag vs. Katiji, reported in AIR 1987 SC 1353, pleaded that the revision petition be allowed , to meet the ends of justice.
5. Per contra, Mr.P.B.Balaji, learned counsel appearing for the first respondent submitted that the petitioners and the third respondent had voluntarily vacated and handed over the premises and the same was subsequently let out to some other tenant, however, the petitioners filed the Interlocutory Applications and after the dismissal of the applications, have preferred the revision. According to him, the revision petition is not legally sustainable.
6. In the accompanying affidavit filed in support of the applications, before the Court below, the petitioners have stated in paragraph number 6 of the affidavit that after receiving the summons, as they were busy with their business, engaged a counsel and gave vakalath to the Advocate, practicing at Egmore, Chennai after duly signed by them. They have further stated that the Advocate informed that he would call the petitioners herein and another as and when required for the case. However, only on 02.04.2009, when the first respondent came to the premises for taking delivery of possession, under the guise of an order obtained in E.P.No.15 of 2008, the petitioners came to know about the exparte decree passed against them.
7. It is therefore made clear that the petitioners had received the suit summons, despite the same, they engaged a counsel, who was practicing at Egmore, Chennai, but they were keeping quiet without knowing anything about the progress of the case. Strangely, the petitioners have not stated the name of the Advocate, who was engaged by them, though they have stated that they handed over a duly signed vakalath to an Advocate. They have not stated even the date of signing the vakalath. In the said circumstances, I am of the view that it is only a bald defence, without any supporting materials.
8. As per Section 5 of Limitation Act, the party who filed the petition should satisfactorily explain the delay. In the instant case, there is an inordinate delay of 586 days in filing the petition under Order 9 Rule 13 CPC. The defence raised by the petitioners that they were busy with their business, hence they could not file the petition under Order 9 Rule 13 CPC in time, cannot be legally sustainable. It is also well settled that a counsel is only the legal advisor guiding the parties to prosecute a case or defend the case, according to law, he cannot be construed as a full time 24 hrs servant of his client. As the petitioners have admittedly received the suit summons, it is their duty to take follow up action and know the progress of the case and instruct their counsel as and when required. The petitioners cannot shift the entire burden on their counsel to defend their case, even without disclosing the name of the Advocate and raise it as a defence to condone the delay of 586 days in filing a petition to set aside the exparte decree. The non-mentioning of the name of the counsel, date and other details regarding the same would show that the reason assigned by the petitioners cannot be construed as bonafide. Even if the averments made by the petitioners are true, the reason assigned by them cannot be construed as a valid ground to condone the inordinate delay.
9. It is not in dispute that a common order was passed by the Court below in the Interlocutory Applications in I.A.Nos.6195 of 2009, 6197 of 2009 and 6198 of 2009, however, the revision has been preferred only against the order passed in I.A.No.6195 of 2009. The court below dismissed the petition on the ground that the reasons stated by the petitioners to condone the inordinate delay was not legally sustainable. The Revision has been preferred under Article 227 of the Constitution of India, invoking the power of superintendence of High Court over subordinate courts.
10. There is no material available in favour of the petitioners to show that the first respondent / plaintiff had played fraud on the court below. Had there been any fraud played by the first respondent / plaintiff, in obtaining the exparte decree and the subsequent eviction, as stated by the revision petitioners, they could have prima facie establish the factum by producing their title deeds and other supporting documents to establish the alleged fraud against the first respondent / plaintiff. Hence, I could find no error or infirmity in the impugned order passed by the court below.
11. Mr.T.Arulraj, learned counsel appearing for the petitioners drew the attention of this Court to the decision rendered by the Hon'ble Apex Court in Collector, Land Acquisition, Anantnag vs. Katiji, reported in AIR 1987 SC 1353 and argued that fraud has been played by the first respondent / plaintiff in evicting the petitioners herein and further contended that there is no prayed for declaration of title by the first respondent / plaintiff, though the relief sought for in the suit was for recovery of possession.
12. As contended by the learned counsel appearing for the revision petitioners that the suit was not decided on merits and the relief sought for by the first respondent / plaintiff was for recovery of possession of shop No.7/16, E-type, SIDCO Nagar, Villivakkam, Chennai- 49. The petitioners have claimed title to the property stating that they are the owners of the property in their affidavit filed before the court below, without any supporting documents to establish their claim. The suit was filed by the first respondent / plaintiff only for recovery of possession, without a prayer for declaration of title and the suit was also not decided on merits. On the aforesaid circumstances, it is made clear that the dismissal of this revision petition is not a bar against the petitioners / defendants for filing a comprehensive suit to establish their title, by way of declaration of title and recovery of possession of the property.
S.TAMILVANAN, J tsvn
13. In the result, with the aforesaid observation, this Civil Revision Petition is dismissed. No order as to costs. Consequently, connected miscellaneous petition is also dismissed.
20-04-2010 Index : Yes Internet : Yes tsvn To The VII Asst. Judge, City Civil Court Chennai.
Order in C.R.P (NPD) No.1079 of 2010