Madras High Court
Nagarathinammal vs Madhammal on 28 February, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.02.2014 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.R.P.(NPD) No.1567 of 2012 and M.P.No.1/2012 1.Nagarathinammal 2.Kasthuri 3.Mahesh 4.Madesh ... Petitioners Vs. Madhammal ... Respondent Civil Revision Petition filed under Section 115 of CPC against the order of learned District Munsif, Dharmapuri dated 19.03.2012 made in I.A.No.187 of 2011 in O.S.No.96 of 1985. For Petitioners : Mr.S.Baskaran For Respondent : Mr.V.Ayyadurai ORDER
The defendants 2, 8, 9 and 11 in O.S.No.96/1985 on the file of the District Munsif, Dharmapuri, are the petitioners in the present revision petition. The said suit was filed by the respondent herein for partition claiming = share in 16 items of landed properties and a house property, besides movables. After entering appearance through a counsel and submitting a written statement, they failed to contest the suit, as a result of which an ex-parte preliminary decree for partition came to be passed on 7.8.2008.
2. The revision petitioners filed an application under Order IX Rule 13 CPC (un-numbered) to set aside the ex-parte preliminary decree dated 7.8.2008. As the said application was not filed in time, they also filed an application under Section 5 of the Limitation Act, 1963 for condoning the delay of 903 days in filing the application under Order IX Rule 13 CPC to set aside the ex-parte preliminary decree dated 7.8.2008. The said application filed under Section 5 of the Limitation Act, 1963 was taken on file as I.A.No.187/2011. The learned judge of the trial court, after hearing, dismissed the above said application I.A.No.187/2011, by order dated 19.03.2012. The said order is the subject matter of challenge in the present revision petition.
3. The respondent/plaintiff has entered appearance through counsel. The arguments advanced by Mr.S.Baskaran, learned counsel for the revision petitioners and by Mr.V.Ayyadurai, learned counsel for the respondent are heard. The copy of the impugned order, grounds of revision and also the additional grounds raised, are perused and taken into consideration. The documents produced in the form of typed set of papers and additional typed set of papers are also taken into consideration.
4. The original defendants were 5 in number and they entered appearance through one Mr.Raghavendran, advocate. Later, Mr.Raghavendran, advocate reported "no instructions", pursuant to which first defendant, second defendant (first petitioner in the revision), 4th defendant and 5th defendant engaged one Mr.P.Srinivasan, advocate and filed Vakalat. By then, the third defendant had died. Even before the death of the third defendant, written statement was filed by the first defendant and the same was adopted by the defendants 2 to 5. After the suit stood adjourned to a future date, the trial court, suo motu advanced the hearing and included the same in the special list for disposal. Since the defendants were not present and ready to get on with the trial, exparte trial was conducted and an ex-parte preliminary decree came to be passed on 22.11.1994. As no notice regarding advancement of the hearing date was given, the said preliminary decree was set aside on an application filed as I.A.No.101/1995 under Order IX Rule 13 CPC. Such an order came to be passed on 20.8.1996.
5. Again, when the suit stood posted for trial on 3.12.1996, both parties were absent and there was no representation either on behalf of the plaintiff or on behalf of the defendants. Hence the suit was dismissed for default on 3.12.1996. Of course, an application for the restoration of the said suit was filed in time as I.A.No.309/1997. But meanwhile Defendants 1, 4 and 5 died, applications for impleadment of the legal representatives came to be filed and allowed and consequential amendment petitions were also filed and allowed. At last, the said application I.A.No.309/1997 was allowed on 21.11.2006 restoring the suit, which had been dismissed for default on 3.12.1996. Thus, it is clear that the suit stood dismissed for default for about 10 years and was restored to file about a fortnight before the expiry of a period of 10 years.
6. Even there after, the case was prolonged because of the successive applications filed for amendment and applications seeking orders to set aside abatement caused by the death of some of the parties. It seems the 5th defendant was also reported death. Though the plaintiff took an application to bring on the legal representatives of the deceased 5th defendant, he did not pursue the same and obtained an order exonerating the fifth defendant and it took about a further period of eight months for starting trial by the examination of PW1. PW1 who filed a proof affidavit, did not appear for his examination on 28.7.2008. Hence the case was adjourned to 5.8.2008 for marking of the documents and for cross-examination of PW1. On 5.8.2008 the contesting defendants were absent. However, the court marked Exs.A1 to A5 and adjourned the matter after two days i.e. 7.8.2008 for cross-examination of PW1. On 7.8.2008 also, the contesting defendants were absent. Hence they were set ex-parte and the trial court, after considering the proof affidavit and the documents, held that the plaint averments stood proved and passed a preliminary decree as prayed for.
7. After the passing of the preliminary decree, the respondent herein/plaintiff waited for one year and three months and then filed I.A.No.901/2009 for passing a final decree. The 8th defendant (the second petitioner in the revision) was set ex-parte on 18.3.2010. The 6th defendant was also set ex-parte on 16.6.2010. Meanwhile, the 10th defendant Chandra also died. The other defendants did not enter appearance in the final decree application . On 18.2.2011, the revision petitioners, who are defendants 2, 8, 9 and 11, filed the application to set aside the ex-parte preliminary decree dated 7.8.2008, along with I.A.No.187/2011 under Section 5 of the Limitation Act, 1963 to condone the delay of 903 days in filing the application to set aside the ex-parte preliminary decree. Of course, in the supporting affidavit, it was stated that the deponent, namely the 4th petitioner in the revision, cited the following reasons.
" 1) 2 = years prior to the filing of the petition, the respondent herein/plaintiff informed him that they would settle the matter and that he would withdraw the suit;
2) After lapse of one month thereafter, the respondent/plaintiff informed him that he had withdrawn the suit;
3) On receipt of notice in the final decree application, namely I.A.No.901/2009, the respondent/plaintiff was enquired in the presence of panchayatdars and at that point of time, he assured to withdraw the suit; and
4) Since his mother was unwell, he had taken her to other stations for treatment and hence, he was not in a position to know the stage of the proceedings."
Based on the said averments, a prayer had been made for setting aside the ex-parte preliminary decree and also for condoning the delay of 903 days in filing the application to set aside the ex-parte decree.
8. The application was resisted by the respondent herein by filing a counter disputing the correctness of the reasons assigned in the supporting affidavit and contending that even after receiving notice in the final decree application and only after receipt of notice in I.A.No.950/2010 filed for amendment of I.A.No.901/2009 on 18.11.2010, they had entered appearance engaging a counsel on 9.12.2010 and that thereafter, they caused a delay up to 25.2.2011 in filing the application to set aside the ex-parte decree and also the application to condone the delay.
9. The learned trial judge, after hearing the application, in which two witnesses were examined on the side of the petitioners and no witness was examined on the side of the respondent and no document was marked on either side, came to the conclusion that the revision petitioners herein did not prove that they were prevented by a reasonable cause from approaching the court in time for setting aside the ex-parte preliminary decree and dismissed the said application by order dated 19.3.2012. The said order is now challenged in the present revision petition.
10. Though the supporting affidavit filed before the court below did not contain an averment to the effect that the counsel engaged by the revision petitioners in the suit was suspended by the Bar Council of Tamil Nadu and the ex-parte preliminary decree came to be passed during the period of his suspension, they wanted to raise it as an additional ground in the present revision. Considering the nature of the plea sought to be raised, this court has permitted the petitioners to raise such a plea. In support of their plea, they have produced a copy of the notice issued by the Bar Council of Tamil Nadu to the said advocate and also a copy of the order imposing punishment and also a direction to pay some amount to the plaintiff, with a rider that in the event of failure to pay the same, the suspension period will be prolonged for a further period of one year. The suspension period was stated to be three years and prolonged suspension on default, was to be four years. Under the said circumstances, the petitioners have stated that they had to engage a different counsel and file the necessary application to set aside the ex-parte preliminary decree and the application to condone the delay.
11. The learned trial judge, traversed various aspects except the fact that the suit itself stood dismissed for about 10 years for default to be restored at the fag end of 10 years The learned trial judge did not give any concrete finding as to whether notice was served on the revision petitioners in the final decree application, namely I.A.No.901/2009. On the other hand, in paragraph No.8 of the order, the learned trial judge made an observation that there was possibility of the revision petitioners having knowledge of the the ex-parte decree on receipt of notice in the final decree application. The learned trial judge also referred to the appearance of the revision petitioners on 9.12.2010 in I.A.No.950/2010 filed for amendment of I.A.No.901/2009 and that the present applications under Order IX Rule 13 CPC and under Section 5 of the Limitation Act, 1963 came to be filed more than two months thereafter and based on the said observations, the learned trial judge held that there was unexplained delay.
12. The learned counsel for the revision petitioners would submit that even as per the counter statement of the respondent, the notice for the amendment application came to be served on the revision petitioners on 18.11.2010 and they appeared on 9.12.2010; that thereafter, it took about two months for verification of the dates and other particulars and that, without causing much delay thereafter, the petition came to be filed on 18.2.2011 itself. The learned counsel for the revision petitioners also contends that the erstwhile counsel of the revision petitioners, who had been suspended by the Bar Council of Tamil Nadu, had kept them in dark and the same was the reason for the filing of the application to set aside the ex-parte preliminary decree with a delay of 903 days.
13. Though the other averments that the petitioners were misled by the assurance made by the respondent/plaintiff to withdraw the case and that the 4th revision petitioner had gone to outstations for the treatment of his ailing mother could be construed to be averments not substantiated and insufficient for condoning the delay, the other reason, namely the suspension of the advocate by the Bar Council of Tamil Nadu, which was not known to the revision petitioners previously, can be held to be a valid reason for seeking an order condoning the delay in filing the application to set aside the ex-parte preliminary decree. This court is of the considered view that, when such is the contention of the revision petitioners and such is the reason assigned by them, the interest of justice requires passing of an order giving the revision petitioners one more opportunity to contest the case and get a contested verdict and at the same time, direct the revision petitioners to compensate the respondent/plaintiff by a cost of Rs.10,000/-.
In the result, the civil revision petition is allowed. The order of the learned District Munsif, Dharmapuri dated 19.03.2012 made in I.A.No.187/2011 in O.S.No.96/1985 is set aside. I.A.No.187/2011 is allowed on condition that the revision petitioners shall pay a sum of Rs.10,000/- to the respondent/plaintiff on or before 18.03.2014, failing which the said petition shall stand dismissed. The trial court shall take up the other application, namely un-numbered application filed under Order IX Rule 13 CPC and dispose of the same as expeditiously as possible. In the event such application being allowed, the trial court shall make an endeavour to dispose of the suit itself as expeditiously as possible, in any event not later than four months from the date of such order setting aside the ex-parte decree, if such order shall be passed. In view of the cost awarded in I.A.No.187/2011, there shall be no separate order for payment of cost in the civil revision petition. Consequently, the connected miscellaneous petition is closed.
28.02.2014 Index : Yes Internet : Yes asr/-
To The District Munsif, Dharmapuri P.R.SHIVAKUMAR, J.
asr C.R.P.(NPD) No.1567/2012 and M.P.No.1/2012 28.02.2014