Madras High Court
Besser Concrete Systems Ltd vs Accord Finance & Properties (P) Ltd on 1 July, 2016
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2016 CORAM: THE HON'BLE Dr.JUSTICE S.VIMALA CRP(NPD)Nos.60 and 793 of 2016 and C.M.P.Nos.316, 1369, 1818 and 5613 of 2016 CMP.Nos.2989, 1817 and 486 of 2016 Besser Concrete Systems Ltd. No.1/208 Kaliamman Koil Street Kelambakkam, Kancheepuram District 603 103. ... Defendant/Petitioner in both CRPs. ..vs.. Accord Finance & Properties (P) Ltd. Rep. by its Director, Mr.Ramesh Nahar, Old No.51, New No.111 G.N.Chetty Road, T.Nagar, Chennai 600 017. ... Plaintiff/Respondent in both CRPs. CRP(NPD)No.60 of 2016: This Civil Revision Petition filed under Article 227 of the Constitution of India, against the order, dated 05.01.2016, made in I.A.No.1515 of 2015 in O.S.No.668 of 2014 on the file of the District Munsif Court, Chengalpet. CRP(NPD)No.793 of 2016: This Civil Revision Petition filed under Section 115 of C.P.C. against the order, dated 05.01.2016, in E.P.No.6 of 2015 in O.S.No.668 of 2014 on the file of the District Munsif Court, Chengalpet. For Petitioner : Mr.M.S.Krishnan, Senior Counsel for M/s.Fox Mandal & Associates For Respondent : Mr.Sriram Panchu, Senior Counsel for Mr.K.Balakrishnan ***** COMMON ORDER
Whether delay in filing the application to set aside the ex-parte decree can be condoned and the decree be set aside, after delivery of possession is taken over and the execution proceedings having been terminated and the effect of which would be to re-open the settled matter to upset the applecart, is the issue raised in the Civil Revision Petition.
1.1. The incidental issue is, where no gross negligence or deliberate inaction or lack of bona fide on the part of the party, seeking condonation of the delay, whether condonation of delay can be refused, while there is duty to render substantial justice.
2. The revision petitioner is the defendant in the suit in O.S.No.668 of 2014, of which, the respondent herein is the plaintiff.
2.1. The suit in O.S.No.668 of 2014 has been filed by the respondent/plaintiff, seeking the relief of recovery of possession against the revision petitioner and the brief facts run as under:
(i) The plaintiff is a Company, registered under the Companies Act, 1956. The suit property originally belonged to Smt.Sujatha Kesvan, who sold the property to the plaintiff Company, through a sale deed 27.07.1995. This property is an extent of 12.11 acres (as per patta measuring an extent of 12.56 acres) at Kelambakkam Village, Chandrapattu Taluk, Kancheepuram District.
(ii) The plaintiff leased out part of the suit property, namely, 4.67 acres out of 12.11 acres to the defendant, through a registered lease deed, dated 07.11.1995. The lease period expired on 31.10.2005.
(iii) As the defendant failed and neglected to deliver the vacant possession, this suit has been filed for recovery of possession.
(iv) The defendant claimed that there was an agreement to sell dated 10.10.1997 executed by the plaintiff Company in favour of the defendant, to the entire extent of 12.56 acres. It is claimed by the defendant that a sum of Rs.2 crore was paid on 28.03.1995 towards part of sale consideration, but, the plaintiff claims that this amount was paid towards lease security deposit for execution of lease deed.
(v) On the expiry of the lease period, the plaintiff wanted the defendant to hand over the possession. Thereafter, the defendant filed C.S.No.856 of 2005 before the High Court for specific performance of the agreement to sell. This suit, after meeting several Interlocutory Applications, was ordered to be transferred to the Principal District Court, Chengalpet, but, still it is not transferred.
(vi) In O.S.No.668 of 2014, the defendant/revision petitioner was set ex parte and the suit has been decreed as prayed for with cost on 09.04.2015. Execution Petition was filed in E.P.No.6 of 2015.
(vii) Thereafter, the defendant filed an application to set aside the ex parte decree along with an application in I.A.No.1515 of 2015 in O.S.No.668 of 2014 to condone the delay of 102 days in filing the application under Order 9 Rule 13 C.P.C. That application was dismissed, by the order dated 05.01.2016. Aggrieved over this order, CRP(NPD)No.60 of 2016 has been filed by the defendant.
(viii) In the execution petition filed by the plaintiff in E.P.No.6 of 2015, delivery was ordered by 11.02.2016, by order dated 05.01.2016 and the order reads as under:
Orders pronounced. In the result, this petition is allowed. Delivery ordered. Delivery by 11.02.2016. This order is under challenge in CRP(NPD) No.793 of 2016.
3. In CRP(NPD)No.60 of 2016, an application for stay was filed in C.M.P.No.316 of 2016. In that application, by the order dated 08.01.2016, notice of motion returnable by three weeks was ordered and interim stay was granted till then.
3.1. Curiously, on the very same day, i.e. 08.01.2016, the bailiff in E.P.No.6 of 2015 in O.S.No.668 of 2014 submitted a report before the Executing Court, stating that delivery has been effected. In the report, there is an endorsement made by the defendant that he would take away the movable properties at his own responsibility. This fact was intimated to this Court also and based on that, this Court has modified the order of stay already granted to the extent that parties have to maintain status quo. There is an observation that the Court is convinced that the decree-holder had taken the possession of the suit property.
4. In CRP(NPD)No.60 of 2016, the main contentions of the learned counsel for the revision petitioner/defendant are that the lower Court ought not to have dismissed the application filed under Section 5 of the Limitation Act, especially considering the connected litigations pending in other Courts; the lower Court failed to consider the reasons stated in the affidavit; considering the amount of delay involved which is not exorbitant, the Court should have allowed the petition.
4.1. The serious grievance of the revision petitioner is that when the Court has chosen to dismiss the application filed under Section 5 of the Limitation Act, the Court should have granted breathing time for the petitioner to move the higher Forum and even without granting that time, ordered delivery of the property on the very same day in haste.
5. So far as CRP(NPD) No.793 of 2016 is concerned, the grievance of the learned counsel for the revision petitioner is that
a) the procedure under Order 21 Rule 35 C.P.C. was not followed by the bailiff;
b) fair hearing was not given in the Execution Petition;
c) after dismissing the application to condone the delay, the Executing Court, by ordering delivery, on the same day, has closed the avenues of appeal/revision;
d) the Executing Court should have taken note of the fact that the plaintiff had already sold the property in favour of third parties and that the suits filed by the third parties were also pending; and
e) the decree did not disclose the factum of the existence of the plant and machinery being situated in the suit property.
6. The learned counsel for the respondent submitted that the lower Court is absolutely right in dismissing the application to condone the delay on account of the following reasons:
(i) no reason whatsoever has been stated in the application to condone the delay, therefore, there is no possibility/opportunity of considering the sufficiency of the reason.
(ii) The sign and seal of the defendant company dated 16.12.2014 stand as a proof for summon having been served in the suit; once there is a proof of service of summon, the presumption is that there is a willful negligence on the part of the defendant in not appearing before the Court.
These contentions are not correct. In the petition to condone the delay, it is stated that the summon seems to have been served on the Company, but, the Company had the knowledge only on receipt of notice in the Execution proceedings. Therefore, it cannot be said that no reason has been alleged for maintaining the application under Section 5 of the Limitation Act. Whether the reason stated is sufficient or not? is the different issue, but, it cannot be said that no reason has been stated in the petition.
Yet another contention that once the summon bears the seal of the Court, there is a presumption that non-appearance is willful, cannot be accepted. The seal on the summon indicates that summon has been served on the defendant. But, whether summons were served on the company (legal entity), has been brought to the notice of the person, managing the affairs of the Company, is yet another issue. The parties are at liberty to explain why they did not appear before the Court.
(iii) Yet another contention is that negligence and inaction on the part of the defendant are apparent and stand as a corroborative piece of evidence, when the defendant herein did not take any steps to get his suit for specific performance transferred to District Court, Chengalpet (as ordered by the High Court).
This contention is incorrect as the direction has been issued to the Registry to transfer the case file and documents.
It is not in the hands of the defendant to transfer the case file to the Court and therefore, no negligence can be alleged on the part of the defendant.
(iv) Relying upon two decisions, the learned counsel for the learned counsel for the respondent contended that it is not the duration of delay, but the acceptability of the reason for delay, and in this case, there is neither reason/nor acceptable reason and therefore, the delay is not rightly condoned.
(a) 2007 (1) MLJ 577 (Kaliammal vs. Sundharammal)
16. Only at the execution stage, the Revision Petitioners seek to challenge the Preliminary Decree. Sufficiency of cause is a condition precedent for exercise of discretionary jurisdiction for condoning the delay. The range of delay is no matter. But acceptability of the explanation is the only criterion. Some times, delay of short range may be uncondonable due to want of acceptable explanation. Whereas in certain other cases, delay of long range can be condoned, as the explanation therefor is satisfactory. Where there is reasonable ground to think that the delay was occasioned by the party, deliberately to gain time, then the Court should not show indulgence in accepting the explanation.
(b) 2004 (3) MLJ 36 ( Rathinathammal vs. Muthusamy) Only on receipt of the notice in the execution petition filed for delivery of the plaint 'B' schedule property, with a view to delay the proceedings further, the 11th defendant filed the petition, subject matter of this revision under Section 5 of the Limitation Act to condone the delay of 545 days in filing the petition to set aside the ex parte decree. Though it is stated that the counsel engaged by her to contest the execution petition was instructed to take steps for setting aside the ex parte decree of the suit and the said counsel did not take steps and also not filed counter in the execution petition because of which delivery was ordered in the execution petition, she has not examined the said counsel. In the reported case, the delay of 545 days in seeking to set aside the ex parte decree was not condoned, when the party aggrieved was not diligent in pursuing the matter and approached the Court only during execution proceedings. But, so far as this case is concerned, neither the delay is huge nor it is intentional.
From the dictum laid down in the above case, the point to be considered is, whether there could have been any intentions on the part of the revision petitioner to prolong the matter or to leave the matter uncontested? That cannot be the case, because the revision petitioner has already parted with a sum of Rs.2,08,00,000/- while getting possession of the property. Moreover, the suit for specific performance filed by the revision petitioner is pending. Under such circumstances, the non-appearance before the Court cannot be intentional.
(v) It is contented by the learned counsel for the respondent that pendency of the suit in C.S.No.856 of 2005 (suit for specific performance) cannot be the ground to condone the delay.
No doubt, the pendency of the suit for specific performance filed by the revision petitioner herein, cannot be the sole ground to condone the delay, but, surely, it is one of the ground to be considered in unearthing his diligence to prosecute the suit for possession filed by the respondent herein.
(vi) The bone of contention is that the valuable right has accrued to the decree-holder by taking delivery of the property; therefore, after termination of the execution petition, settled right in favour of the decree-holder cannot be unsettled by condoning the delay.
In support of this contention, the following decisions are relied upon:
(i) Mary @ Crusemary and another vs. Malliga (2012 (4) TNLJ 479 (Civil)) 5. In the aforesaid circumstances, as per the findings of the Court below, the petitioners have not shown sufficient cause to condone the delay in filing a petition to set aside the exparte decree passed in the suit in O.S.No.136 of 2006 and allowing the Interlocutory Application in I.A.No.366 of 2010. In the impugned order, the Court below has given a finding that in view of the delivery of possession of the schedule of property effected, the same was recorded and the E.P was ordered to be closed. It is seen that the petitioners have not explained satisfactorily the inordinate delay of 924 days for filing a petition under Section 5 of Limitation Act to condone the delay in filing a petition under Order 9 Rule 13 CPC, further after the exparte decree, E.P was filed by the respondent / decree-holder. Though the petitioners herein appeared in the E.P, had failed to file petition to set aside the exparte decree, immediately. Similarly left the E.P for passing exparte order and E.A to set aside the exparte order was not filed within 30 days.
6. Learned counsel for the respondent submitted that after the delivery of possession and recording of delivery by the Court below, the petitioners are not entitled to maintain revision against the order passed in the Interlocutory Application. In support of his contention, learned counsel for the respondent relied on the following decisions :
1. Muthusaamy vs. Subramanian, (2009) 7 MLJ 746
2. Kaliammal vs. Sundharammal, (2007) 1 MLJ 577
3. Rathinathammal vs. Muthusamy, (2004) 3 MLJ 36
(ii) Esha Bhattacharjee vs Mg.Commit.Of Raghunathpur Nafar (Civil Appeal Nos.8183-8184 of 2013 (arising out of S.L.P.(C)Nos.24868-24869 of 2011))
7. In G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore [2], Venkatachaliah, J. (as his Lordship then was), speaking for the Court, has opined thus:-
The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See :Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd.[3]; Shakuntala Devi Jain v. Kuntal Kumari[4]; Concord of India Insurance Co. Ltd. V. Nirmala Devi[5]; Lala Mata Din v. A. Narayanan[6]; Collector, Land Acquisition v. Katiji etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression sufficient cause in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.
(iii) Subramaniam and another vs. K.Veerakumar (2014 (2) MWN (Civil) 74) 13. It is a settled legal principle that law of limitation is founded on Public Policy not meant to destroy rights of the parties, but to see that the parties do not resort to dilatory tactics. Likewise, it has been held that liberal approach in considering an Application under Section 5 of the Limitation Act should not override the substantial law of limitation and no premium can be given for lethargic attitude or utter negligence. From the reported decisions, what is expected of this Court to look for is whether there is a) gross negligence or b) deliberate inaction or c) lack of bona fide in the conduct of the revision petitioner, which if proved would disentitle him to get the delay condoned.
7. The learned counsel for the revision petitioner pointed out the following circumstances in order to support the contention that the revision petitioner cannot afford to remain negligent.
i) The revision petitioner has paid a sum of Rs.2 crores, to the respondent, which is evident by the receipt dated 31.08.1995.
ii) lease deed dated 07.11.1995, in which, there is a clause that the lease and ground rent shall be Rs.300/- p.a.
iii) additional sum of Rs.8 lakh has been paid by the revision petitioner on 21.03.1997.
iv) there was a proposal to transfer the property in the name of Vibrant-Besser Concrete System Ltd., for the purpose of expansion of business as evidenced by the letter dated 07.08.1997 addressed by the revision petitioner to the Bank of Madura.
v) Minutes dated 18.09.1997, in which, it is recorded that the suit property has been hypothecated by the revision petitioner to Bank of Madura Ltd. for an overdraft facility availed by Vibrant Investment Property Ltd.
vi) The sale agreement dated 10.10.1997, in which, there is a clause reciting that Vendee offered to purchase the property at Rs.2 crores, which offer, the vendor accepted.
8. The learned counsel for the revision petitioner also relied upon the following decisions contending that the revision petitioner has made out a case for condonation of delay and therefore, the delay has to be condoned.
(i) 1987 (2) SCC 197 (Collector Land Acquisition, Anantang and another vs. Mr.Katji and others) The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the 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. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
(ii) 1998 SCC 123 (N.Balakrishnan vs. M.Krishnamurthy) Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.
(iii) 2001 (6) SCC 176 (M.K.Prasad vs. Arumugam) In construing Section 5 of the Limitation act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal & Ors. v. Rewa Coalfields Ltd. [AIR 1962 SC 361] held:
"Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal & the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr.Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous.
In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant."
Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors. [1972 (1) SCC 366 and G.Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore [1988 (2) SCC 142 this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bonafide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123] this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed:
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
(iv) 2010 (15) SCC 714 (Trishala vs. M.V.Sundar Raj and another) 3. The first appeal in the High Court is by the defendants against an ex parte decree of the trial Court. It appears that the defendants were proceeded ex parte from the very beginning. The suit property is an immovable property. The ex parte decree directs declaration of title, delivery of possession and ascertainment of mesne profits. According to the appellants the summons in the suit were not served on them and they were not aware of the suit or the ex parte decree passed therein. On becoming aware of the ex parte decree they obtained certified copies of the judgment and decree and filed the appeal. It is further stated that there are several suits relating to this property and in each of the suits the appellant-defendants are contesting and there is no reason why the defendants, if served, would not have appeared and contested the suit.
(v) 2011 (3) SCC 545 (Primala vs. Veena Alias Bharthi) 12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence.
Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand.
There cannot be a strait-jacket formula of universal application.
9. Therefore, it is for the Court to find out whether the guidelines /directions issued in respect of grounds to be considered while condoning the delay has been made out in the application to condone the delay.
10. Learned counsel for the plaintiff/respondent submitted that it is not a case where notice did not get served personally and it is not a case where notice by publication or affixture has been done and when the summon shows the date and seal of the Company, then, there is no reason as to why the defendant did not appear before the Court; except saying that, the defendant was surprised to receive the notice in E.P.No.6 of 2016 and there is no reason why he did not appear from 23.12.2014 to 09.04.2015 and why there was a delay in filing the petition to set aside the ex parte decree, which ought to have been filed at least on 09.04.2015.
11. In order to appreciate the contentions raised, it is necessary to look into the averments stated in the affidavit filed by the petitioner.
(i) In para 11 of the affidavit, it is stated that notice seems to have been served on the petitioner, but, the petitioner was unaware of the pendency of the suit and hence, had not entered appearance through their advocate.
(ii) In para 12 of the affidavit, the efforts taken by the revision petitioner to find out how the service of notice was effected and how it was not brought to his notice. Thereafter, the petitioner had taken steps to obtain documents and on obtaining entire papers, the petitioner understood the implication of the decree and judgment passed against them.
12. From the averment made, it cannot be said that no reason is alleged to explain the delay. The fact that it has been served to somebody in the Company is also not suppressed. The revision petitioner being a Company has been served through some officials in the Company. There is a difference in service when it is served personally and when it is served through the persons in representative capacity. On behalf of the Company, somebody representing the Company has received the notice. The Court can take judicial notice of the fact that there is degradation in the values and the values relating to honesty, sincerity, dedication, commitment and hard work have been diminishing gradually among the employees. There is no reason as to why the revision petitioner would have refrained from attending the Court, especially, i) when the petitioner is carrying on the business in the said premises and when he has sought for specific performance of the sale agreement of the place which is the subject matter in the suit itself; therefore, the contention that notice served was not brought to the notice of the petitioner must be true. The diligent conduct on the part of the revision petitioner after the service of notice is exhibited by the prompt filing of subsequent petitions before the Executing Court as well as before this Court. Therefore, it is a case where there is no deliberate inaction or mala fides on the part of the revision petitioner. Therefore, the delay ought to have been condoned.
13. The most serious contention is that when the delivery has been effected and the execution proceedings have been brought to an end, the delay should not be condoned and the ex parte decree should not be set aside.
14. Under normal circumstances, if really, the delivery has been effected by following due process of law, this Court would not have chosen to condone the delay. This is a case, a) where there are serious procedural violations, b) prima facie disrespect to the orders passed by this Court, and c) the Court itself shut the avenues of appeal/revision by ordering delivery on the same day on which the application to condone the delay was dismissed. Therefore, the contention that the litigation came to a finality and therefore, it should not be reopened, cannot be accepted. Therefore, prima facie, when the termination of proceedings was not brought out lawfully, the finality to the litigation cannot be a ground to refuse to condone the delay.
15. The learned counsel for the revision petitioner would submit that delivery was effected contrary to the orders of the stay of execution proceedings ordered by this Court and therefore, the order of delivery is non est in the eye of law.
16. The learned counsel for the respondent would submit that the respondent came to know about the order of stay only on 12.01.2016 and not on 08.01.2016 and therefore, the delivery effected is valid in law.
17. The learned counsel for the revision petitioner claimed that the petitioner is in possession of a SMS Message and apart from, video graphs to show that there are violations in effecting delivery and that the delivery was effect knowing fully well the about orders of stay passed by the High Court. The validity/invalidity of the delivery proceedings is a matter for examination and enquiry by the Executing court.
18. The prima facie it appears that on the day on which Section 5 application was dismissed by the Court, the delivery has been ordered. The Executing Court ought not to have done this. Having dismissed the application to condone the delay, the Court ought to have granted waiting time for the defendant to move the appellate Forum. That has not been done. Under such circumstances, the contention that the ex parte decree should not be set aside, because, delivery is effected, could not be accepted.
18.1. Having regard to the connected litigations pending, reasons stated for condoning the delay, the amount of delay involved, the order dismissing the application filed under Section 5 of the Limitation Act and the order of delivery in the execution proceeedings having been made on the same day closing the avenues of appeals / revisions for the revision petitioner and the suits by purchasers of part of the property remaining pending, and the possibility of comprehensive disposal of all matters together being possible, cumulatively taken together compel this Court to set aside the order dismissing the petition to condone the delay and to pass an order setting aside the ex-parte decree. Ends of justice and avoidance of multiplicity of proceedings can be ensured only by setting the ex-parte decree.
Restitution
19. The learned counsel for the revision petitioner prayed for restitution of the property invoking the provisions of Section 144 of the Code of Civil Procedure and also relying upon the several decisions.
20. Section 144 of the Code of Civil Procedure reads as under:
144. Application for restitution.- (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified ii any suit instituted for the purpose, the court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are property consequential on such variation; reversal, setting aside or modification of the decree of the decree or order.
Explanation: ......
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).
21. From the perusal of the provisions of Section 144 C.P.C., it is evident that the following conditions are necessary for the application of restitution.
1. The restitution sought must be in respect of that decree or order which had been varied or reversed;
2. The applicant has lost, or been deprived of, something by reason of the decree or order which has been subsequently varied or reversed;
3. The party applying for restitution must be entitled to a benefit under a reversing decree or order;
4. The relief claimed must be properly consequential on such variation of the decree or order; and
5. The applicant must be a party to the litigation which has terminated according to law.
22. From the explanation to Section 144 C.P.C., it is obvious that the application by any of the party entitled to the benefit by way of restitution and other wise, shall be filed before the 'Court which passed the decree'. The Court which passed the decree shall be deemed to include:-
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance;
(b) where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order;
(c) where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.
23. When the party who is entitled to the restitution cannot file a separate suit for the purpose of obtaining restitution, then the remedy is to file an application under Section 144 C.P.C. before the Court which passed the decree.
24. The following decisions relied upon by the learned counsel for the revision petitioner:
(i) 2000 (10) SCC 405 (Anwarbi vs. Pramod DA Joshi and others) 3. In view of the obstruction so caused it was for the decree-holder to take appropriate steps under Order 21 Rule 97 for removal of the obstruction and to have the rights of the parties including the obstructionist adjudicated under the provisions of Order 21 Rule 101. We do not know if any such proceedings have been taken by the decree-holders and whether such proceedings are pending or not. The Appellant, however, made various applications including the present application under Section 151 of the Code of Civil Procedure read with Order 21 Rule 35 and Order 21 Rule 101 for adjudication of her rights. All these applications of the Appellant have been dismissed on the ground that these are premature since she is in possession.
4. Learned Counsel for the Appellant has contended that the Appellant is being repeatedly threatened with dispossession. We, therefore make it clear that the possession of the Appellant cannot be disturbed except in accordance with law; and that in view of the obstruction raised by her to the execution of the said decree, the rights of the obstructionist will have to be decided in appropriate proceedings, in accordance with law. Unless and until such proceedings terminate in favor of the decree-holder, the decree-holder cannot take possession and the Appellant is entitled to retain possession.
(ii) P.Janardhana Rao vs. Kannan and other (2004 (11) SCC 511)
8. Order 21 Rule 97 CPC is the provision for removal of the person bound by the decree who does not vacate. It takes into account a situation where resistance to possession is offered by the judgment-debtor or any other person bound by the decree which will include the claim of a person who claims to be in possession in his own right and independently of the judgment-debtor but whose claim ex-facie is unsustainable. Where, however, resistance is offered or where obstruction proceeds from the claimant claiming to be in possession in his own right and whose claim cannot be rejected on the ground of want of good faith, without investigation, the decree-holder must proceed under Order 21 Rule 97. [See: Ragho Prasad v. Pratap Narain Agarwal reported in MANU/UP/0115/1976 : AIR1976All470 .
9. In the case of Noorduddin v. Dr. K.L. Anand MANU/SC/0533/1995 : (1995)1SCC242 , it has been held as follows:--
"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right title and interest in the immovable property in execution.
9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviors and succor for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right title or interest in the immovable property under execution.
10. The question is whether the executing court was right in dismissing the application on the ground that the dispute was adjudicated in RFA No. 305 of 1986 or as held by the High Court that the dispute was decided in the writ proceedings referred to earlier. The execution court is enjoined to adjudicate the claim or the objection or the claim to resistance. As seen, Rule 97 enables such a person to make an application which must be independent of the judgment-debtor or a person having derivate right from the judgment-debtor. The applicant in his own right must be in possession of the property...."
(iii) Dr.Madina Balakrishna vs. B.Suryam Court Amien (MANU/AP/00555/2011) 27. An officer of the Court entrusted with execution of a judicial order is expected to act with responsibility and is beholden to uphold the majesty of the rule of law. The present case reflects that be it for whatever consideration, the Amin willfully chose to disobey the order of this Court. His conduct leaves no room for doubt that he was made aware of the stay order passed by this Court but continued with the execution of the delivery warrant. This uncaring and wanton disregard by a Court employee towards a superior Court's order cannot be condoned or dealt with leniently.
28. The judicial hierarchy is a measure of checks and balances and a litigant must necessarily go through the process before reaping the benefits of a decree obtained by him. Armed with a decree which is yet to become final, it is not open to a litigant to thwart the judicial process by getting it executed, thereby presenting a fait accompli to the superior Court.
29. ....
30. ....
31. ....
32. ....
33. Being a cog in the machinery of the justice delivery system, the Amin knew the implication of the stay order passed by this Court. His conduct puts it beyond doubt that he was made aware of the stay order while still in the process of executing the delivery warrant. In spite of the same, his disregard and lack of respect towards the said order, as is evident from the fact that he did not even choose to seek the advice of the Judicial Officers or his superiors as to what his future course of action should be, clearly indicates that he was bent upon completing the process of execution. This wilful disobedience to the order of this Court cannot be viewed lightly.
(iv) Tanmai Jewellers vs. Ch.Sreesaila Kumari and another Whenever an E.P. is filed for recovery of possession of an immovable property, notice is required to be served on both the parties and if there is no obstruction, delivery of possession can be effected. If there is obstruction by any parties, the matter has to be reported to the Court and specific orders in this regard are to be obtained. If the premises are locked, an order for breaking open the lock must be obtained from the Executing Court. If, at the time of execution of the decree, any law and order problem has been created, or noticed, the matter has to be reported to the Court by the bailiff, so that, adequate protection can be given after considering the issue in detail. However, in the instant case, just on the basis of a delivery warrant, not followed by any applications, or report of bailiff, be it, removal of obstruction, breaking open of lock, or granting police protection, much less an order of the Court in that behalf, this is what the bailiff did in his maiden attempt.
.....
Though the 2nd respondent is said to have been inducted into possession, the same was subject to the outcome of the appeal, and he cannot derive any independent rights. If he has chosen to take the promise on lease, even while several proceedings are pending, he has run the risk and cannot plead for sympathy. The principle underlying Section 144 C.P.C., applies to the facts of the case. It becomes the duty of a Court to set at naught the injustice and wrong caused to a party on account of an order or decree which is found to be untenable. Further, when the very delivery of possession was illegal and contrary to the procedure prescribed under C.P.C., and the warrant is set aside by this Court, the necessity to file an application under Section 144 C.P.C. does not arise.
25. From the reported decisions, it is clear that the granting of restitution is consequential to the decree being varied or reversed or modified or set aside and it is not discretionary, but mandatory. The Court is bound to put the parties status quo anti. The duty and jurisdiction of the Court to grant restitution is inherent in the general jurisdiction of the Court to act fairly and rightly in the circumstances towards all parties involved.
26. Under such circumstances, the restitution application is forwarded to the Court which passed the decree and the Court is directed to pass order in accordance with the provisions of Section 144 C.P.C and other applicable principles.
27. The learned counsel for the respondent submitted that there shall be an order for status quo to be maintained. But, the law enjoins the Court to consider the application for restitution, i.e., not status quo, but, status quo ante, having regard to the ex parte decree being set aside. Once the ex parte decree is set aside, automatically, the order of delivery, as ordered by the Executing Court becomes non est in the eye of law. But, the order is stated to have been executed already, based on which, the revision petitioner seeks restitution also.
28. Therefore, the CRP(NPD) No.793 of 2016 is allowed, but, subject to orders being passed in the application for restitution, by the Court which passed the decree.
29. It is for the Court which passed the decree to pass orders on the application filed under Section 144 C.P.C., and to dispose of the same within a period of one month from the date of receipt of a copy of this order.
30. In the result, CRP(NPD)No.60 of 2016 is allowed and the order dated 05.01.2016 in I.A.No.1515 of 2015 in O.S.No.668 of 2014 on the file of the District Munsif Court, Chengalpet, i.e. the order declining to condone the delay is set aside. I.A.No.1515 of 2015 in O.S.No.668 of 2014 is allowed and ex parte decree is set aside.
O.S.Nos.121 of 2011, 122 of 2011, 130 of 2011, 131 of 2011 and O.S.No.668 of 2014 stand transferred to the Principal District Court, Chengalpet. The Principal District Court, Chengalpet, is directed to conduct simultaneous/joint trial of the suits in C.S.No.856 of 2005, O.S.Nos.121 of 2011, 122 of 2011, 130 of 2011, 131 of 2011 and O.S.No.668 of 2014 and to conclude the same within a period of three months, from the date of disposal of the restitution application by the Court which passed the decree. No costs. Consequently, connected miscellaneous petitions are closed.
01.07.2016 ogy To The District Munsif Court, Chengalpet.
S.VIMALA, J.
ogy Orders Reserved on: 25.04.2016 Orders pronounced on: 01.07.2016 PRE-DELIVERY ORDERS IN CRP(NPD)Nos.60 and 793 of 2016 01.07.2016