Madras High Court
P.A.Kathirvelu (Deceased) vs K.Rathinam on 18 August, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :18.08.2010
Coram
The Honourable Mr.Justice G.RAJASURIA
C.R.P.(NPD) No.1664 and 1665 of 2005
and
C.M.P.Nos.14329 and 14330 of 2005
1. P.A.Kathirvelu (Deceased)
2. K.Arul Rani
3. K.Bagawathkumar (Minor) ... Petitioner in both CRPs
rep. By his mother and natural guardian
2nd petitioner.
(Petitioners 2 and 3 are brought on record as L.Rs of the deceased 1st Petitioner vide order of Court dated 18.03.2008)
Vs.
1. K.Rathinam
2. V.Santhammal ... Respondents in both CRPs
Civil Revision Petitions filed under Article 227 of the Constitution of India against the order made in I.A.Nos.232 and 233 of 2005 in A.S.Nos.47 and 48 of 2004 on the file of the Principal District Court, Coimbatore, dated 30.03.2005.
For Petitioners : Mr.K.M.Vijayan, Senior Counsel
for Mr.M.Baskar
For respondents : Mr.K.Goviganesan
O R D E R
Inveighing the order dated 30.03.2005 passed in I.A.Nos.232 and 233 of 2005 in A.S.Nos.47 and 48 of 2004 by the learned Principal District Judge, Coimbatore, these civil revision petitions are focussed.
2. Heard both sides.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these two revisions would run thus:
(i) The respondents herein filed three suits, O.S.Nos.940 of 1999, 1468 of 1996 and 1573 of 1995 seeking permanent injunction as against the revision petitioner. All the three suits were disposed of by a common judgment, as against which three appeals were filed in A.S.Nos.47, 48 and 55 of 2004.
(ii) P.A.Kathirvelu, the revision petitioner (deceased) after entering appearance in the appeals, filed respective applications under Section 151 of CPC for dismissing the appeals on the ground that A.S.Nos.47 and 48 of 2004 were taken on file without any application for getting the delay condoned in filing such appeals. Whereupon, the matter was contested and ultimately, the Court passed common order dated 30.03.2005 dismissing those applications. Being aggrieved by and dissatisfied with the same, these revisions have been filed on various grounds.
4. The learned Senior Counsel for the revision petitioners placing reliance on the grounds of revision, would develop his arguments, the pith and marrow of them would run thus:
(a) Even though a common judgment was passed in disposing of the aforesaid three suits, the appellants in those three appeals did choose to file three separate copy applications for obtaining the certified copy of the common judgment and decree and it is not as though on one and the same day, those copy applications were filed.
(b) The copy applications to obtain the certified copy of the common judgment and decree of the lower Court relating to A.S.Nos.47 and 48 of 2004, it is evident, were filed belatedly. Even though three appeals were presented on one and the same day, i.e. on 12.01.2004, yet only one appeal, i.e. A.S.No.55 of 2004 was in time in view of the relevant copy application for obtaining the said common judgment was filed earlier to two other copy applications as set out supra.
(c) Even though the Court held that A.S.No.47 of 2004 was filed within time taking into account the fact that one other appeal A.S.No.48 of 2004 was filed in time, yet there was actually a delay of fourteen days in filing the appeal. But the lower Court failed to take into consideration the same The learned Senior Counsel for the revision petitioners would also submit that the Full Bench decision relied on by the lower Court was improper and it is having nothing to do with the factual scenario involved in this case.
Accordingly, the learned Senior Counsel for the revision petitioners prays for setting aside the order of the appellate Court and for allowing I.A.Nos.232 and 233 of 2005 filed before the appellate Court.
5. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the revision petitioners, the learned counsel for the respondent would advance his arguments, the gist and kernel of them would run thus:
(a) In compliance with Order 41 Rule 1 of CPC, the appellate Court vide the order in I.A.Nos.135 and 136 of 2004 dispensed with the production of the separate certified copies, but permitted the appellants therein to file one certified copy of the judgment and decree.
(b) The Full Bench decision of this Court reported in 1970-1-MLJ-608 [State of Madras rep. By the Special Tahsildar, Regional Engineering College, Scheme, Tiruchirapalli v. Muthurethinam and others], would also support the view taken by the appellate Court and as such, no interference with the common order passed by the lower Court is required.
Accordingly, the learned counsel for the respondent prays for the dismissal of these revisions.
6. The point for consideration is as to:
Whether A.S.Nos.47 and 48 of 2004 filed before the lower Court could be taken as one within time or not? and whether there is any perversity or illegality in the order passed by the appellate Court in dismissing I.A.Nos.232 and 233 of 2005?
7. A 'resume' of the factual scenario is absolutely necessary:
(i) Indubitably and indisputably, the common judgment was passed by the trial Court relating to three suits between the same set of parties. It so happened that the respondent herein did choose to file three separate copy applications in respect of those three suits for the purpose of obtaining one and the same common judgment and decree.
(ii) In respect of A.S.No.55 of 2004, the respondent filed the copy application without any loss of time and thereby as on the date of the filing of the appeal on 12.09.2003 it was well within time. Similarly, A.S.No.48 of 2004 which was filed on 12.01.2004 along with earlier A.S.No.55 of 2004 was also turned out to be within time even though the relevant copy application pertaining to that original suit was filed with a few days delay.
(iii) However, even though A.S.No.47 of 2004 was filed on 12.01.2004 along with the aforesaid two appeals, the relevant copy application to obtain the common judgment and decree in O.S.No.940 of 1999 was filed belatedly and accordingly if calculated, it might appear as on 12.01.2004, the date of filing of that appeal, as though there was a delay of about fourteen days. But the appellate Court correctly and properly pointed out that since a common judgment emerged in respect of the three suits and the Court also dispensed with the production of other certified copies of the same judgment and decree as per Order 41 Rule 1 of CPC and that the three appeals were permitted to be filed on the strength of one certified copy of the common judgment and decree which was obtained relating to the O.S. concerning A.S.No.55 of 2004, absolutely there is no delay at all and no interference with the order of the appellate Court is required.
8. The learned Senior Counsel for the revision petitioners would submit that when the law enjoins that three separate appeals should be filed, the question of relying on one and the same certified copy of the common judgment would not arise. The cause of actions were different and in such a case, the procedure adopted by the lower Court was against law. In support of his contention, the learned Senior Counsel for the revision petitioners would rely upon the following judgments:
(i) The decision of the Hon'ble Apex Court reported in AIR 1964 SC 1336 [Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others], an excerpt from it would run thus:
"11. Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribe therefore by the I Schedule irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the Subordinate Court comes to an erroneous decision, it is open to the Court to in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter."
(ii) The decision of this Court reported in 1995 MLJ 84 [C.Selvaraj (died) and others v. The Corporation of Madras represented by its Commissioner and others], an excerpt from it would run thus:
"20. Learned counsel for the appellants contends that the plea of limitation was not raised in the trial court and it was not open to the appellate court to consider the question of limitation. There is no merit in this contention. Sec.3 of the Limitation Act provides that it is the duty of the court to dismiss any suit instituted, appeal preferred and application made after the prescribed period although the limitation has not been set up as a defence. ....."
9. A mere poring over and perusal of those judgments would clearly show that those are all judgments relating to different sets of facts and the factual scenario as found in the present case is not similar to the ones found exemplified in those decisions and in my considered opinion those judgments were cited out of context. However the Full Bench decision of this Court reported in 1970-1-MLJ-608, an excerpt from it would run thus:
"The common appellant having filed a copy of the judgment in one of the connected appeals and filed copies of decrees in each of the appeals the benefit of exclusion on the basis of the endorsements, of the time taken in furnishing the certified copy of the judgment was filed but would enure also to the other connected appeals filed by the same party against the common judgment."
would clearly point out that the Court has got the power to dispense with the production of several certified copies of common judgment and decree and it could place reliance on one certified copy of the common judgment in respect of several appeals emerging out of a common judgment. Here the lower Court dispensed with the production of separate certified copies for each and every appeal and the Court was satisfied with the production of one certified copy of the common judgment. The particular certified copy of the common judgment which was obtained by filing copy application in time relating to O.S.No.1573 of 1995 was relied on by the Court. Precisely, the revision petitioners cannot try to pin down the appellants by contending that in view of they having filed belatedly one copy application relating to O.S.No.940 of 2009 (relevant to A.S.No.47 of 2004), the time for filing appeal relating to O.S.No.940 of 1999 should be calculated and computed separately. As such, I could see no perversity or illegality in the order passed by the lower Court. Accordingly, I could see no merit in these revision petitions and the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
10. The learned counsel for the respondent would make an extempore submission that a time frame may be fixed for the disposal of the appeals, as the appeals are of the year 2004. I could see considerable force in the submission, accordingly, I would like to direct the appellate Court to dispose of the appeals within a period of four months from the date of receipt of a copy of this order.
18.08.2010 gms To The Principal District Judge, Coimbatore.
G.RAJASURIA.J., gms C.R.P.(NPD) No.1664 and 1665 of 2005 18.08.2010