Madras High Court
R. Ayyasamy vs Ganesan And Ors. on 25 July, 2005
Equivalent citations: (2005)4MLJ190
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Revision is preferred against the order of the Additional District Munsif, Kallakuruchi, made in I.A.No. 2993 of 1998 in O.S.No. 747 of 1990, dated 27-01-1999, dismissing the Application filed under Section 151 C.P.C., declining to condone the delay of 1024 days in representing the Petition to set aside the exparte decree. The 11th Defendant Ayyasamy, is the Revision Petitioner.
2. The relevant facts for disposal of this Revision Petition could briefly be stated thus:-
a) O.S.No. 747 of 1990:- Claiming through one Ayyangkutty, the Plaintiffs have filed the Suit for 1/3rd share in the suit properties. The parties are related as under:-
Perumal (Died in 1950) | _________________________________________________________________ | | | Guardu Sadayan Ayyangkutty @ Chinnapaiyan (Died in 1965) (Died in 1985) (Died in 1982) | | _______________________________________ ____________________________ | | | | | | | | | Ramasamy Ayyakannu Dhanapal Pip Pappa Jaya Selvamani Annamalai Ganesan (D.1) (D.4) (D.5) (Died in (P.1) (P.2) (P.3) (D.3) (D.2) in 1980) | __________________ | | | Dhanakodi Sellan Ammusamy (D.6) (D.7) (D.8) Claiming their 1/3rd share, the Plaintiffs have issued legal notice on 8-5-1990. Even after the receipt of the Notice, the Defendants have not partitioned the property and allotted 1/3rd share to the Plaintiffs (1/9th share each). Hence, the Plaintiffs have filed this Suit for partition of their 1/3rd share.
b) Denying the averments in the Plaint, the Second Defendant has filed the Written Statement contending that the suit properties belonged to his father Guardu alone. It is further alleged that the father of the Plaintiffs, viz., Ayyangkutty left the Village about 30 years back and that he has never returned back to the Village. All the Plaintiffs were married even before 30 years and ousted from the possession and enjoyment of the suit properties. The Defendants have perfected their title by way of adverse possession. Hence, the Plaintiffs are not entitled for claiming partition in the suit properties. To the Notice issued by the Plaintiffs, the Defendants have sent a suitable reply.
c) Though, the Defendants have filed the Written Statement, the Defendants have not appeared on the date of hearing (12-03-1996). Hence, the Suit was decreed exparte on 12-03-1996. Unnumbered I.A. of 1996 was filed on 9-4-1996 under Order 9 Rule 13 C.P.C. to set aside the exparte decree dated 12-03-1996. There was a delay of 19 days in filing the Application. Hence, another Application in Unnumbered I.A. of 1996 was also filed under Section 5 of the Limitation Act, to condone the delay of 19 days in filing the Application to set aside the exparte decree. In the supporting Affidavit, the Defendants have alleged that they have left the Village in connection with attending a marriage and the marriage work and hence, could not appear on the date of hearing (12-03-1996). According to them, their non-appearance on 12-03-1996 was neither wanton nor wilful and prayed to set aside the exparte decree passed on 12-03-1996.
d) That Application was returned for rectification of certain defects. But, they have not represented within the stipulated time. It is alleged that in the meantime, there was a Panchayat and the Panchayatdars directed the Defendants to pay certain amount to the Plaintiffs and the Plaintiffs also agreed for the same. But, later the Plaintiffs have refused to receive that amount and hence, the compromise could not fructify. Alleging that in view of the compromise entered into during the interregnum period, they could not represent the Application, the Defendants have filed I.A.No. 2993 of 1998 to condone the delay of 1024 days in representing those Applications. In the supporting affidavit, they have referred to about the Panchayat and the circumstances, wherein the Plaintiffs have refused to receive the amount.
e) The Plaintiffs have filed the counter statement denying the allegations in the affidavit. The Plaintiffs have denied any such Panchayat. They have alleged that though the Application was filed on 9-4-1996, steps have not been taken for representing the same within the stipulated time. The Panchayat has been alleged only to explain away the inordinate delay in filing the Application.
f) Upon consideration of the contention of both the parties, the learned District Munsif has found that there is an inordinate delay in representing the Application. Finding that no satisfactory material has been adduced showing the Panchayat, it was further held that even if the alleged Panchayat has been held, which did not fructify, the Application ought to have been filed within one year, since, as per the alleged compromise the time for payment was only one year. It was further held that, if the Plaintiffs have not agreed to receive the amount as per the compromise, the Defendants ought to have been filed the Application within the period of one year. Finding that there is an inordinate delay of two years and the delay has not been satisfactorily explained, the trial Court dismissed the Application.
3. Aggrieved over the dismissal of the Application in I.A.No. 2993 of 1998, the 11th Defendant has preferred this Revision. The Revision Petitioner is represented by the Counsel S.D.Balaji. Respondent Nos. 5 to 10, 12, 14 and 17 have been served, but they have not entered appearance. Their names have been printed in the cause list. Though, Respondent Nos. 1 to 4, 11 and 13 have not yet been served, considering the fact that the contesting Respondents have been served, the Revision Petition itself is taken up for final disposal.
4. The learned counsel for the Revision Petitioner has submitted that the Defendants were under the bonafide impression that by the compromise arrived at by the Panchayatdars, they would be able to persuade the Plaintiffs to accept the amount. Drawing the attention of the Court to the conduct of the Defendants in filing the Application to set aside the exparte decree without any delay i.e., on 9-4-1996, the learned counsel for the Revision Petitioner has submitted that an opportunity is to be afforded to the Defendants, who had taken diligent steps for conducting the Suit, by condoning the delay in representation. There appears to be a considerable delay.
5. The main points that arise for consideration in this Revision are:-
i.Whether the contention that the condonation of inordinate delay of 1024 days in representing the Application is only between the Court and the Party is acceptable ? and ii.Whether the Order declining to condone the delay suffers from any material irregularity warranting interference ?
6. The exparte decree was passed on 12-03-1996. Under Section 5 of the Limitation Act, discretion is conferred on the Court for condoning the delay. If the Court below had exercised the discretion in granting or refusing the condonation of delay and when there is proper exercise of discretion, the High Court would be slow to accept the order of the Court below, unless, it is shown to be erroneous. In this case, the discretion has been exercised in refusing to condone the delay in representation. The High Court would not accept that order, unless, it is shown to be erroneous. If sufficient cause for delay is shown, the Court is to adopt a liberal approach in condoning the delay. Each days delay has to be satisfactorily explained. For setting aside the exparte decree dated 12-03-1996, the Application to set aside the exparte decree was filed on 09-04-1996, with a delay of 19 days. That Application was returned for rectification of certain defects, but was not represented within the stipulated time. According to the Revision Petitioner/11th Defendant, during the interregnum period, there was a Panchayat, wherein, the Panchayatdars have directed the Defendants to pay an amount in lieu of the share of the Plaintiffs. It is further alleged that when the amount was later tendered to the Plaintiffs, they have refused to receive the same. They have further alleged that due to the Panchayat and the compromise arrived thereon, they have not taken steps for immediate representation of the Application in setting aside the exparte decree. The trial Court negatived the contention of the Defendants finding that if really the Panchayat was not fructified, then and there, the Defendants ought to have taken steps in representing the Application. The learned District Munsif also found that no Panchayatdar had been examined to substantiate the contention of the Defendants.
7. In the supporting affidavit, the Defendants have clearly alleged that during the interregnum period, between 9-4-1996 till the date of filing of the Application in 1998, there was a Panchayat and the Panchayatdars have directed the Defendants to pay the amount and the compromise did not fructify in view of the refusal of the Plaintiffs to receive the amount. There is nothing to disbelieve the version of the Defendants. Being Villagers and Rustic, quite reasonably the Defendants were waiting to persuade the Plaintiffs through the Panchayatdars to accept the amount. The Defendants being Rustic may not have been aware of the implication of the non-representation of the unnumbered Application to set aside the exparte decree and the unnumbered Application to condone the delay of 19 days in filing that Application. The learned District Munsif has not properly appreciated the averments in the Affidavit. In cases of this nature, it would be futile to expect the examination of the Panchayatdars, who may not be willing to take sides with the parties. The learned District Munsif has not adopted a liberal approach in the reasons set forth by the parties, whether they had sufficient cause for the delay in representing the Application.
8. It is also relevant to note that the Suit is for partition. In that Suit, the Defendants have adopted the plea of adverse possession. According to them, the father of the Plaintiffs, namely, Ayyangkutty, have left the Village long ago and that the Plaintiffs were given in marriage even 30 years prior to the filing of the Suit and that the Plaintiffs have not participated in the income of the Joint Family Properties. The merits of the defence plea could be gone into only by affording opportunity to the Defendants to substantiate their plea. By declining to condone the delay in representing the Application, the Defendants would be shut out from putting forth their defence. The impugned order declining to condone the delay of 1024 days in representing the Application is erroneous and cannot be sustained. The learned District Munsif ought to have afforded opportunity to the Defendants to represent the Applications filed under Order 9 Rule 13 C.P.C and Section 5 of the Limitation Act. In that view of the matter, the impugned order is to be set aside and this Revision Petition is to be allowed.
9. For the foregoing reasons, the order of the Additional District Munsif, Kallakuruchi, made in I.A.No. 2993 of 1998 in O.S.No. 747 of 1990, dated 27-01-1999, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P.Nos. 91 of 2000 and 18150 of 1999 are closed. In the circumstances of the case, there is no order as to costs. The delay of 1024 days in representing the unnumbered I.A. of 1996 (Application under Section 5 of the Limitation Act) and unnumbered I.A. of 1996 (Application under Order 9 R.13 C.P.C.) is condoned. The learned Additional District Munsif, Kallakurichi, is directed to take those Applications on file (if otherwise in order) and dispose of them in accordance with law.