Madras High Court
Murugesan vs A.R.S.Ramalingam(Died) on 20 April, 2023
Author: C.Saravanan
Bench: C.Saravanan
C.R.P(MD).No.1376 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.04.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P(MD).No.1376 of 2021
and
C.M.P(MD).No.7833 of 2021
Murugesan ... Petitioner/Petitioner/4th Defendant
Vs.
A.R.S.Ramalingam(Died)
1.Raj ... 2nd Respondent/2ndRespondent/
2nd Plaintiff
2.R.Gandhimathi
3.R.Narayanan
4.R.Subbaiah ... Respondents 2 to 4/
Respondents 3 to 5/3rd parties
PRAYER:- This Civil Revision Petition has been filed under Article
115 of CPC, to allow the civil revision petition by setting aside
the order passed in I.A.No.1 of 2020 in O.S.No.541 of 2009 dated
17.08.2021 on the file of the Additional District Munsif Court,
Tenkasi.
For petitioner : Mr.N.GA.Natraj
For R1 : Mr.D.Srinivasa Raghavan
For R2 to R4 : Mr.R.J.Karthick
ORDER
This Civil Revision Petition has been filed by the petitioner to set aside the order passed by the Additional District Munsif Court, Tenkasi, in I.A. No. 1 of 2020 in O.S. No. 541 of 2009, dated 17.08.2021.
2. I.A.No.1 of 2020 in O.S.No.541 of 2009 was filed by the petitioner to condone the delay of 1680 days in filing an application to set aside ex-parte decree dated 06.07.2015.
3. I.A.No.1 of 2020 in O.S.No.541 of 2009 was dismissed vide impugned order dated 17.08.2021 by the learned Additional District https://www.mhc.tn.gov.in/judis 1/7 C.R.P(MD).No.1376 of 2021 Munsif Court, Tenkasi with the following observations:-
“16.nkYk;> kDjhuh;/4k; gpujpthjp jug;gpy; jhf;fy; bra;j cah;ePjpkd;w cj;jut[fspd; tHpfhl;Ljypd;go ,k;kDtpid ghprPypf;ifapy; kDjhuh;/4k; gpujpthjp jug;gpy; jw;nghJ fhyjhkj;jpw;fhf ,k;kDtpy; Twg;gl;Ls;s fhuzq;fs; nghJkhdjhf ,y;iy vd;Wk;> fhyjhkjj;jpw;fhf brhy;yg;gl;Ls;s fhuzk; kDjhuh;/4k; gpujpthjpahy; rhl;rpaq;fspd; K:yk; eU:gzk; bra;ag;gltpy;iy vd;gjhYk;> nkw;go Kd;jPh;g;g[ bewpfspd; tHpfhl;Ljypd; go ,t;tHf;if Muha ntz;oa mtrpak; vHtpy;iy vd;nw ,e;ePjpkd;wk; fUJfpwJ.
17.nkYk;> ,k;kDtpd; fhyjhkjj;jpw;F Fwpg;gpl;Ls;s fhuzk;
Vw;Wf;bfhs;sj;jf;fjy;y vd;W jPh;t[ fz;Ls;s epiyapy;> ePjpapd;ghw; bghUl;L ,k;kD epiyf;fj;jf;fjy;y vd;W ,e;ePjpkd;wk; jPh;t[ fhz;fpwJ.
18.Kothf> ,k;kD bryt[j;bjhifapd;wp js;Sgo bra;J cj;jutplg;gLfpwJ.' ”
4. It is noticed that earlier by an order dated 28.02.2022, this Court had dismissed the present Civil Revision Petition. At the same time, this Court directed the Trial Court to reopen the case with the following observations:-
“7.In the suit in O.S.No.541 of 2009 the plaintiff has claimed declaration for 77 cents in Survey No.149/1 on the basis of the sale deed, dated 19.02.2013, in which the plaintiff had produced document only for 60 cents. But, he claimed title for 77 cents. The plaintiff has not filed any document before the Court below to prove his title. But, the trial Court has not considered the document filed by the plaintiff and straightaway decreed the suit for 77 cents.
8.In view of the foregoing reasons, this Court invoke Article 227 of Constitution of India.
Accordingly, this Civil Revision Petition stands dismissed by confirming the order, dated 17.08.2021 in I.A.No.1 of 2020 in O.S.No.541 of 2009 passed by the learned Additional District Munsif, Tenkasi. The Judgment and Decree, dated 06.07.2015 in O.S.No.541 of 2009 passed by the learned Additional District Munsif, Tenkasi, is set aside. The trial Court is directed to re-open the suit in O.S.No.541 of 2009 and peruse all the documents and evidences already produced by the plaintiff and pass decree. The petitioner is not entitled to contest the case since the order in I.A.No.1 of 2020 is confirmed. No costs. Consequently, connected miscellaneous petition is closed.”
5. In fact, this Court had also accepted the reasoning of the Trial Court while passing the order earlier on 28.02.2022. This Court found no reason for condoning the delay. Yet it directed the Trial Court to re-open the suit in O.S.No.541 of 2009 and peruse all https://www.mhc.tn.gov.in/judis 2/7 C.R.P(MD).No.1376 of 2021 the documents and evidences already produced by the plaintiff and pass decree.
6. The petitioner was not entitled to participate in the said proceedings. The right of the first respondent herein (second plaintiff) was thus sought to be restricted to 60 cents of land.
7. Aggrieved by the same, the first respondent had preferred C.A.No.1584 of 2023 before the Hon'ble Supreme Court (Arising Out of SLP(C).No.19249 of 2022). The Hon'ble Supreme Court of India by its order dated 03.03.2023 allowed the C.A.No.1584 of 2023 and has held as under:-
“If a prayer for condonation of delay in filing the petitioner for setting aside ex-parte decree was not being accepted, the matter before the High Court would have ended there. It is a different matter as to whether the said application was to be accepted or not and as to what orders were to be passed but, we are clearly of the view that looking to the subject matter before it, the High Court could not have expanded the scope of its power of superintendence under Article 227 of the Constitution of India so as to set aside the ex-parte decree with the observations that the plaintiff had not filed any document to prove title. We say no more.
For what has been discussed herein above, this appeal succeeds and is allowed. The impugned order dated 28.02.2022 is set aside and C.R.P. (MD)No.1376/2021 is restored for reconsideration of the High Court.”
8. Thus, the Civil Revision Petition was listed for a fresh hearing before this Court.
9. The petitioner is the fourth defendant in O.S.No.541 of 2009 before the Additional District and Munsif Court at Tenkasi. The suit was filed by one A.R.S.Ramalingam (since deceased) along with the second respondent/plaintiff for the following reliefs:-
https://www.mhc.tn.gov.in/judis 3/7 C.R.P(MD).No.1376 of 2021 Tamil English “m) gpuhjpd; jgrpy; brhj;J 1k; thjpf;Fa) To declare that 2nd plaintiff is ghj;jpag;gl;L 1k; thjp 2k; thjpf;F 19.02.2013y; jhth tHf;fpw;Fg; gpd; fpiuak;the owner of the suit schedule bfhLj;jpUg;gjhy; jgrpy; brhj;J 2k; thjpf;Fg;property since the 1 st plaintiff ghj;jpag;gl;lbjd gpujpthjpfSf;F vjphpy;who was the erstwhile owner, had tpsk;g[if bra;tjd; K:yk; gpuhjpd; jgrpd;
brhj;ij 2k; thjp mikjpahd Kiwpay;sold the the suit schedule mDgtpj;J tUtij> gpujpthjpfshtJproperty to the second defendant mth;fsJ tifahl;fshtJ> ntiyahl;fshtJon 19.02.2013 after the suit and ahbjhU ,ilQ;rYk; bra;ahjgo nkw;goahh;fs; bgahpy; xU epue;ju jilahizthereby declaring a permanent cj;jput[ tHq;Fk;gof;Fk;> injunction against the defendant, M) ,jd; jgrpy; brhj;ijg; bghWj;J ,e;j 1k; gpujpthjp 4 Kjy; 6 gpjpjpthjpfSf;Ftheir men’s and servants from 25.07.2003y;; Mjut[ vz;.1222/2003 K:yk;disturbing the peaceful enjoyment vGjpf; bfhLj;j ed;bfhil gj;jpuk; Voidof the suit schedule property by document vd tpsk;g[if bra;a[k;gof;Fk;> the the 2nd plaintiff; ,) ,jd; jgrpy; brhj;ijg; bghWj;J ,e;j 1k; gpujpthjp 2k; gpujpthjpf;F 09.05.2006y; Mjut[ vz;.1084/2006 K:yk; xU Vw;ghL Mtzk; vGjpf; bfhLj;jpUg;gJ Void document vd tpsk;g[if bra;a[k;gof;Fk;> <) ,jd; jgrpy; brhj;ijg; bghWj;J ,e;j 2k; gpujpthjp; 3k; gpujpthjpf;F 06.07.2006y; Mjut[ vz;113/2006 K:yk; vGjpf; bfhLj;j gth; gj;jpuk; Void document vd tpsk;g[if bra;a[k;gof;Fk;> b) To declare that the gift deed
c) ,ttHf;Fr; bryt[ thjpf;F gpujpthjpfsplkpUe;J fpilf;Fk; executed by the 1st defendant to gof;Fk;> the 4th to 6th defendants vide C) gpd;Dk;> nfhh;l;lhh; mth;fSf;F cr;rpjkhf njhd;Wfpw ,ju ghpfhuq;fSk; thjpf;FDocument No.1222/2003 dated gpujpthjpfsplkpUe;J fpilf;Fk;gof;Fk;25.07.2003 in respect of the suit jPh;g;g[bra;acj;jputhfgpuhh;j;jpf;fg;gLfpwJ.'bghW schedule property is a void j;J ,e;j 1k; gpujpthjp 2k; gpujpthjpf;Fdocument; 09/05/2006y; Mjut[ vz/1084-2006 K:yk; xU Vw;ghL Mtzk; vGjpf; bfhLj;jpUg;gJ Voidc) To declare that the settlement Document vd tpsk;gi [ f bra;a[k;gof;Fk;; deed executed by the 1st defendant in favour of the 2nd defendant vide Document.No. 1084/2006 in respect of the suit <) ,jd; jgrpy; brhj;ijg; bghWj;J schedule property is a void ,e;j 2k; gpujpthjp; 3k; gpujpthjpf;F document; 06/07/2006y; Mjut[ vz;113-2006 K:yk;
vGjpf; bfhLj;j gth; gj;jpuk; Void Document vd tpsk;g[if bra;a[k;gof;Fk;;
d) To declare that the power of attorney deed executed by the 2nd
c) ,t;tHf;Fr; bryt[ thjpf;Fdefendant in favour of the 3rd gpujpthjpfsplkpUe;J fpilf;Fk; gof;Fk;; defendant vide Document No. 113/2006 dated 06.07.2006 in respect of the suit schedule property is a void document;
C) gpd;Dk;. nfhh;l;lhh; mth;fSf;F cr;rpjkhf njhd;Wfpw ,ju ghpfhuq;fSk;e) to the cost of the suit;
https://www.mhc.tn.gov.in/judis thjpf;F gpujpthjpfsplkpUe;J 4/7 C.R.P(MD).No.1376 of 2021 06.07.2006y; Mjut[ vz;113/2006 K:yk;defendant in favour of the 3rd vGjpf; bfhLj;j gth; gj;jpuk; Void document vddefendant vide Document No. tpsk;g[if bra;a[k;gof;Fk;>
c) ,ttHf;Fr; bryt[ thjpf;F113/2006 dated 06.07.2006 in gpujpthjpfsplkpUe;J fpilf;Fk; gof;Fk;> respect of the suit schedule C) gpd;Dk;> nfhh;l;lhh; mth;fSf;F cr;rpjkhfproperty is a void document;
njhd;Wfpw ,ju ghpfhuq;fSk; thjpf;F
gpujpthjpfsplkpUe;J fpilf;Fk;gof;Fk;
jPh;g;g[ bra;a cj;jputhf gpuhh;j;jpf;fg;gLfpwJ.' e) to the cost of the suit;
f) To such other further relief as the court deems fit and proper;
10. The petitioner herein was arrayed as the fourth defendant in O.S.No.541 of 2009. It appears that the first three defendants in the suit had also filed their written statement. The petitioner however failed to file a written statement and therefore the petitioner was set ex-parte on 07.12.2009.
11. The specific case of the petitioner is that though the petitioner was set ex-parte on 07.12.2009, and thereafter ex-parte decree came to be passed on 06.07.2015, the first respondent herein, who is the second plaintiff in O.S.No.541 of 2009 purchased only 60 cents of land from the first plaintiff A.R.S.Ramalingam (since deceased).
12. It is submitted that the document that was furnished by the first respondent herein (second plaintiff) also reveals that out of total extent of 85 cents of land only 60 cents of land was purchased by the first respondent herein from the original plaintiff A.R.S.Ramalingam (since deceased). Out of the balance 25 cents of land, 8 cents of land was sold by the first plaintiff A.R.S.Ramalingam to one Arunachala Nayakkar and therefore, balance 17 cents of land still belonged to the said A.R.S.Ramalingam (since deceased).
13. It is therefore submitted that although the petitioner has not properly explained the delay in filing the application for setting aside the ex-parte decree dated 06.07.2015, substitute the Justice requires that the petitioner be allowed to contest the proceedings.
14. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondents.
15.There is no scope for diluting the decree passed by the Trial Court on 06.07.2015. The only issued that could be agitated before this Court is whether the trial Court was justified in dismissing I.A.No.1 of 2020 filed by the petitioner to condone the delay of 1680 days in filing the application for setting aside the https://www.mhc.tn.gov.in/judis 5/7 C.R.P(MD).No.1376 of 2021 ex-parte decree passed on 06.07.2015.
16. The affidavit filed by the petitioner in support of the above application is bereft of details. The petitioner has merely stated that the petitioner suffered from Jaundice and therefore, the petitioner could not earlier file an application for setting aside the ex-parte decree passed on 06.07.2015.
17. The Trial Court has considered the above, while passing the impugned order dated 16.08.2021 in I.A.No.1 of 2020.
18. Reading of the affidavit filed before the Trial Court and their impugned order indicates that the petitioner has not sufficiently explained the reasons for condoning the delay. Mere statement that the petitioner suffered from Jaundice is not sufficient to allow the application for condoning the delay in filing the application for setting aside the ex-parte decree dated 06.07.2015.
19. The petitioner should have explained the period during which he suffered for such ailment and what stopped him from filing the application earlier after he recovered for the aforesaid ailment.
20. The Trial Court has rightly dismissed the application filed by the petitioner in I.A.No.1 of 2020 by regretting the prayer to condone the un-explained delay of 1680 days in filing the application to set aside the ex-parte decree dated 06.07.2015. The impugned order does not call for any interference.(*) However liberty is given to the parties to approach the court under section 152 of CPC for appropriate relief
21. In the light of the above observations, this Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
Sd/-
Assistant Registrar(CS-III) (*)Corrected as per the order of this court dated 21.06.2023 Sd/-
Assistant Registrar(CS-III) // True Copy // /07/2023 Sub Assistant Registrar(CS) dss https://www.mhc.tn.gov.in/judis 6/7 C.R.P(MD).No.1376 of 2021 To
1.The Additional District Munsif , Tenkasi.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
+1 CC to M/s.N.GA.NATRAJ, Advocate ( SR-29525[F] dated 21/06/2023 ) +1 CC to M/s.D.SRINIVASARAGAVAN, Advocate ( SR-29574[F] dated 21/06/2023 ) +1 CC to M/s.N.GA.NATRAJ, Advocate ( SR-22612[F] dated 21/04/2023 ) +1 CC to M/s.D.SRINIVASARAGAVAN, Advocate ( SR-22953[F] dated 21/04/2023 ) C.R.P(MD).No.1376 of 2021 and C.M.P(MD).No.7833 of 2021 20.04.2023 KB(06.07.2023) 7P 8C https://www.mhc.tn.gov.in/judis 7/7