Madras High Court
A.Y. Abdul Raheem : Revision vs M.B. Ramesh on 9 February, 2016
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.02.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
CRP(NPD)(MD).No.197 of 2016 and
CMP(MD).No.865 of 2016
A.Y. Abdul Raheem : Revision Petitioner
Vs.
M.B. Ramesh : Respondent
Civil Revision Petition is filed under Article 227 of the constitution
of India against the fair and decreetal order dated 07.01.2015 passed in
RCA.No.27 of 2014 on the file of Rent Controller ? Appellate Authority
(Principal Sub Court), Madurai confirming the order and decreetal order dated
04.06.2014 in I.A.No.17 of 2014 in RCOP.No.158 of 2009 on the file of the
Principal District Munsif Court), Madurai.
!For Petitioner : Mr. R. Suriya Narayanan
^For Respondent : Mr. T.R. Jeyapalan
:O R D E R
This Civil Revision Petition is filed against the fair and decreetal order dated 07.01.2015, passed in RCA.No.27 of 2014, on the file of Rent Controller ? Appellate Authority (Principal Sub Court), Madurai, confirming the order and decreetal order, dated 04.06.2014 in I.A.No.17 of 2014 in RCOP.No.158 of 2009 on the file of the Principal District Munsif Court, Madurai.
2. The revision petitioner is the tenant. The respondent filed RCOP.No.158 of 2009, on the file of the learned Principal District Munsif Cum- Rent Controller, Madurai for eviction of the petitioner, on the ground of wilful default and owners occupation. The petitioner has filed his objection on 19.11.2009. On the enquiry in the RCOP, dated 02.09.2010, the respondent was examined in chief as PW.1 and it was posted for cross examination of PW.1. The petitioner took adjournments on various dates. Subsequently, he remained absent. The petitioner did not cross examine the respondent either through his counsel or himself. Therefore, the petitioner was set ex parte on 21.10.2010 and ex parte decree was passed on 21.10.2010, granting two months time for vacating the premises. The petitioner filed I.A.No.303 of 2012 to condone delay in filing petition to set aside the ex parte decree. The said petition was ordered on 03.04.2013 and the RCOP was restored and posted for cross examination of PW.1, by the petitioner. Subsequently, on various dates, the petitioner did not appear either in person or through his counsel. On 23.04.2013, the Rent Controller issued notice to the petitioner. Even after service of notice, the petitioner did not appear in the Court. He was called absent and set ex parte on 07.06.2013 and the evidence of PW.1 was closed and it was posted for petitioner's evidence. On various dates, petitioner was not present and he was called absent and therefore, the evidence of the petitioner was closed on 21.08.2013 and it was posted for arguments on 27.09.2013. On that day also there was no representation on behalf of the petitioner. The learned Rent Controllor heard the arguments of the respondent and passed an order of eviction on 04.10.2013, directing the petitioner to vacate and hand over the possession within three months time. Against the said order, on 31.10.2013 he filed an application in I.A.No.17 of 2014 to set aside the ex parte decree passed in RCOP dated 04.10.2013,. The respondent filed counter and resisted the same.
3. After considering all the materials on record and the arguments of the learned counsel for the petitioner and respondent, the Rent Controller, dismissed the I.A.No.17 of 2014. Against the dismissal order, petitioner filed RCA.No.27 of 2014, on the file of the learned Principal Subordinate Judge, Madurai. The revision petitioner filed RCA reiterating the averments made in the set aside petition. The learned Appellate Authority dismissed the RCA on 04.06.2014 holding that petitioner has not given reason to interfere with the order passed by the learned Rent Controller in I.A.No.17 of 2014. Against the said dismissal order, the petitioner has come out with the present revision.
4. The learned counsel appearing for the petitioner contended that the Courts below erred in coming to the conclusion that the petitioner is not interested in prosecuting the case. The Courts below failed to consider that in every stage of the petition, the petitioner had engaged an Advocate before the Trial Court and Appellate Court. The interest of justice requires that a litigant should be given an opportunity to defend his case on merits. The Courts below failed to see that the petitioner and his deceased father were regular in payment of rents and suddenly the respondent herein in collusion with one Veerarahavan tried to evict the petitioner against the statute. In support of his contention the learned counsel appearing for the petitioner has relied on the following judgments:
(i) 1992(1) MLJ 595 (Sumitra Bai Vs. V.G. Shyamsundar Sah), para 7 reads as follows:-
7. With regard to the merits of the case, learned District Judge dismissed the application considering the previous conduct of the parties. The previous conduct of parties or that of the advocate need not be looked into at all while disposing of an application filed under Order 9 Rule 13, C.P.C Order 9, Rule 13, C.P.C reads as follows:
13. Setting aside decree ex parte against defendant: In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit....
Order 9, Rule 13, C.P.C. contemplates that if a party is prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs. That section does not contemplate the conduct of the party or of the advocate previously appeared for him when the party were called upon to answer as to how he was prevented from appearing before the lower court by giving sufficient cause. If the appellant has satisfied that he was prevented from appearing before the court by giving sufficient cause, the court has to restore the application upon such terms and costs only and nothing else. In this case, when the appeal was dismissed for default, on the same date, an application was filed to set aside the exparte decree immediately with the affidavit of the advocate appearing for the appellant in the lower appellate court. Learned District Judge has referred to the previous conduct of the parties and ultimately held that there is no sufficient cause for his absence on the particular date. Especially in an appeal, there is no necessity for the appellant to be present and the appeal will be argued only by an advocate. Under such circumstances, learned District Judge need not have put it as a bar for rejecting the application, as if the appellant's presence was necessary on the same date when he dismissed the appeal for default. Learned Counsel for the appellant has shown sufficient cause for the absence of the appellant on the date when the appeal was dismissed for default. I am satisfied with the reasons given by the appellant for his absence on the date when the appeal was posted for hearing and I hold that there is just and sufficient cause-for his absence and that the appeal deserves to be restored to file.
(ii) 2001(1)MLJ 604 (Kuppummal (died) and 3 others Vs. S.V. Kandasami), para 11 and 13 reads as follows:-
11. The Apex Court, in the case of New India Insurance Company Ltd., V. Shanthi Misra, AIR 1976 S.C.237 has stated what constitutes sufficient cause cannot be laid down by hard and fast rules. The expression ?sufficient cause? should receive a liberal construction. Even in condoning the delay under Sec.5 of the Limitation Act, the Apex Court in the case of O.P.Kathpalia V. Lakshmir Singh, A.I.R. 1984 S.C. 1744 has observed:
? If the refusal to condone the delay results in grave miscarraige of justice, it would be a ground to condone the delay?.
In Collector, Land Acquisition V. Katiji (1987)2, SCC 107, the Apex Court observed.
? The expression ?sufficient cause? is adequately classic to enable the court to apply the law in a meaningful manner which observes 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 taking a justifiably liberal approach in matters instituted in the Court .....
..... 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 injustice being done because of a non-deliberate delay.?
13. In the instant case also, we feel that the cause shown by the appellant was sufficient for her non-appearance on 26.09.1984 and she cannot be penalized for her previous negligence, if any as it has already been overlooked and condoned by the court and she must be given an opportunity to defend the case on merits to meet the ends of justice. But, however, taking into consideration that the lis is pending from the year 1982 and the respondent has been dragged from one court to the other, he should be compensated by way of costs, which we fix at Rs.5,000/-
(iii) 2000(2) CTC 27 (G.P. Srivatasava Vs. Shri. R.K. Raizdada and others), para 7 and 8 reads as follows:-
7. Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex-
parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.
8. In the instant case, it is not disputed that the nephew of the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. Both the Trial Court as also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of the appellant despite the fact that he had put a reasonable defence and had approached the Court for setting aside the ex-parte decree, admittedly, within the statutory period. Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time.
5. The learned counsel appearing for the Caveator has filed counter affidavit and contended that the petitioner has filed Interlocutory Application only to drag on the proceedings. The petitioner has filed a petition to set aside the ex parte decree on two occasions and the petition filed by the petitioner to set aside the ex parte decree, he did not produce any documentary evidence on his side and he has filed a petition suppressing the fact. The petitioner has not given any valid or sufficient reason for remaining ex parte on two occasions. Only with a view to prolong the matter he did not appear and contest the matter.
6. The RCOP has been filed in the year 2009 and the petitioner was set ex parte in 2010. Subsequently, he filed Petitions to set aside the ex parte decree and the respondent did not oppose the same in order to re decision on merits. The eviction petition was restored and again petitioner was set ex parte. Hence, the learned Rent Controller closed the evidence of the petitioner and heard the arguments of the respondent side passed an order directing the petitioner to vacate and hand over the possession within three months. Against which he has filed I.A.No.17 of 2014 to set aside the ex parte decree dated 04.10.2013 passed in RCOP and the same was dismissed. He filed R.C.A.No.27 of 2014, on the file of the Rent Control Appellate Authority / Principal Subordinate Judge, Madurai and the same has also been dismissed on 07.01.2015.
7. The respondent has filed E.P.No.4 of 2014 and the notice was ordered and the petitioner refused to receive the notice and notice was served by paper publication. Only after paper publication, he appeared and filed E.A.Nos.118 of 2014, 135 of 2014, 255 of 2014, 37 of 2015 and 208 of 2015 in Execution proceedings. In respect of his contention the learned counsel for the respondent has relied on the judgment reported in (2002) 7 SCC 531, para 11 reads as follows:-
11. Once it is proved that summons, were sent by registered post to a correct and given address, the defendants own conduct becomes important.
Before the trial Court, the appellants were allowed to lead evidence in support of their contentions. An order to this effect was passed by the trial court on 11.01.1991. The premises in question are occupied by two defendants jointly ? Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant Besant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on Besant Singh but not on Hari Singh when they occupied the tenanted premises jointly.
8. I have heard the learned counsel appearing on either side and perused the materials available on record.
9. From the materials on record it is seen that the intention of petitioner is to prolong the rent control proceedings filed against him for eviction. On two occasions, the petitioner was set ex parte and ex parte order of eviction was passed. At the first instance, when the petitioner filed petition to set aside ex parte decree the respondent did not oppose the petition with a view to get decision on merits. Therefore, the ex parte decree was set aside and petitioner was given opportunity to defend the case. He did not utilise the opportunity and he was set ex parte. The petition filed by the petitioner to set aside the ex parte decree on second occasion the Courts below dismissed the same as the petitioner has not given any valid and sufficient reasons for setting aside the ex parte decree. It is contended by the learned counsel for the respondent that Execution Petition was filed to execute the decree of eviction and petitioner refused to receive notice. Only after publication of notice in the EP, the petitioner appeared in the EP and filed various applications. The various judgments relied on by the learned counsel for parties categorically states that a party must be given an opportunity to put forth his case on merits. A party should not be shut out at threshold itself. But, at the same time, the intention of party must be bonafide. It is well settled that if intention of litigant is not bonafide he is not entitled to indulgence of the Court. In the present case, the petitioner has remained ex parte on two occasions and has not given sufficient and valid reasons to set aside the ex parte decree. The Courts below have considered all the facts and circumstances in proper perspective and dismissed the application and appeal filed by the petitioner by giving cogent and valid reasons. There is no reason warranting interference by this Court.
10. In the result, the Civil revision petition is dismissed confirming the Judgment and Decree of the learned Rent Controller - Appellate Authority / Principal Subordinate Court, Madurai confirming the order and decreetal order dated 04.06.2014 passed in I.A.No.17 of 2014 in RCOP.No.158 of 2009 on the file of the Rent Controller / Principal District Musnif Court, Madurai. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1. The Rent Controller ? Appellate Authority (Principal Sub Court), Madurai
2. The Principal District Munsif Court, Madurai.
.