Madras High Court
Noor Jahan vs Pappireddipatty Town Panchayat, ... on 30 January, 1992
Equivalent citations: (1992)1MLJ590
ORDER Abdul Hadi, J.
1. This civil revision petition is filed by the plaintiff in O.S.No.437 of 1984 on the file of the District Munsif s Court, Harur. The said suit is for injunction restraining the respondent-Town Panchayat from levying or collecting property-tax for door No. l0/48-A and for injunction restraining the said Panchayat from collecting property tax for Door No. 10/48 in excess of Rs. 77-40 per year. An ex parte decree as prayed for was passed in the said suit on 11.6.1987 and there was a delay of 721 days in the defendant-panchayat filing a petition to set aside the exparte decree. Hence I.A.No.425 of 1989 was filed by the said Panchayat to excuse the said delay, The said LA. was allowed by the court below by order dated 5.4.1991 and against the said order this civil revision petition has been filed by the plaintiff.
2. The learned Counsel for the petitioner submits that there was no sufficient grounds to condone the inordinate delay of 721 days. The ground alleged in the affidavit in support of the said I.A. is as follows:- The suit was originally pending in the District Munsif s court, Dharmapuri and was subsequently transferred to the District Munsif s Court, Harur and the Government Pleader did not inform the Panchayat about the said transfer. Further, he told the Executive Officer of the Panchayat that it was enough if the latter attended court after the former informed latter. Believing him, the said Executive Officer did not meet the said Government pleader. Therefore, the said executive officer could not get information as to where and by whom the case was conducted. He came to know of the abovesaid ex parte decree only on the date of the said affidavit, vis., 7.7.1989.
3. These averments are totally denied in the counter affidavit filed by the plaintiff by making necessary specific averments.
4. From the order of the court below, it is found, the abovesaid suit was filed in 1983 in the District Munsifs Court, Dharmapuri, but was transferred to Harur District Munsif s Court in 1984 itself on the ground of jurisdiction and after the transfer, issues were framed on 23.2.1984 and after posting the suit in the special list on 11.6.1987, the abovesaid ex pane decree was passed on the said date, in view of the non-appearance of the defendant. The main reasoning of the court below for passing the impugned order is that the version of P.W.I, (Executive Officer of the abovesaid Panchayat on the date of deposition) that the "counsel for the Panchayat did not give necessary information regarding the hearing date, is believable.
5. But, I find that the plaintiff has filed E.P. No. 90 of 1989 for executing the decree for costs awarded to her in the abovesaid suit and the notice of the said execution petition has been received by the Defendant on 9.5.1989 itself. While so, the averment in the abovesaid supporting affidavit that only on 7.7.1989, the defendant came to know of the ex parte decree is false.
6. Further, in the above said I.A., it has only to be seen whether there is. ground for excusing the delay of said 721 days in filing the petition to set aside the ex parte decree. So, the allegation that the Government Pleader did not inform the transfer of the suit, even assuming it is true, is not relevant, because the aforesaid delay has occurred only subsequent to the passing of the ex parte decree in the transferred court. Further, though it is alleged that the said Government Pleader told the defendant that it was enough if the defendant attended court after he informed the defendant, it is not alleged as to when the Government Pleader stated so, nor any affidavit has been filed from the said Government Pleader stating that he told the defendant so. In fact, I gave an opportunity to the learned Counsel for the petitioner for filing such an affidavit from the said Government Pleader. The said Government Pleader is stated to be one Muniraman, as deposed by P.W.I. But no such affidavit has been filed from the said Muniraman. That apart, P.W.I admits that there is nothing in the office file to show that the said Muniraman has written any letter stating that it is enough if the defendant attends court when he informs so. The defendant has also not examined the said Muniraman. However, an affidavit by one Mr. Prabakaran, Advocate, practising at Harur has been filed. Therein, it is stated that he appears for the defendant in the abovesaid I.A.No.429 of 1989 and that as per the instructions of his client, he has filed the said I.A. and that the Government pleader at Harur District Munsif s Court has not informed the 'matter' to the defendant and that hence there was the abovesaid delay of 721 days. This affidavit in no way helps the defendant. The ex parte decree only states that the abovesaid Mr. Muniraman was present at the time when the exparte decree was passed though the defendant was not present.
7. Subsequent to the said exparte decree alone, the abovesaid delay has occurred. But, to excuse the same, there is no necessary averment either in the supporting affidavit, or in the deposition of P.W.1. As already stated, in this context, the fact that the defendant has not been informed regarding the transfer of the suit, has no relevance in deciding the question whether the abovesaid delay subsequent to the ex pane decree, could be excused. Further, P.W.1 has also admitted thus:
So, there is clearly sheer indifference on the part of the defendant in not having filed the petition to, set aside the ex parte degree in time. Therefore, despite the absence of any relevant averment for excusing the abovesaid delay which has occurred subsequent to the ex parte decree, either in the supporting affidavit or in the deposition of P.W.I, the court below has allowed the abovesaid I.A. As already stated, the reasoning ,of the court below for allowing the said I.A., that the counsel did not inform the defendant about the hearing date. This reasoning obviously cannot be applied for excusing the abovesaid delay, which has occurred only subsequent to the abovesaid hearing date when the abovesaid exparte degree was passed. Therefore, it is clear that the court below has acted in exercise of its jurisdiction illegally or with material irregularity.
8. In the view so taken, there is absolutely no scope for application of the decisions cited by the learned Counsel for the respondent viz., Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee , Sagayam Engineering Works v. Srivatsa Tube Corporation (1989)1 L.W. 27 and U.P. State Road Corporation v. Kedhar Singh . For the same reason, there is also no necessity for me to refer to the decisions cited by the learned Counsel for the petitioner viz., Vinaitheerthal Achi v. Chidambaram Chettiar 80 L.W. 477. S. Veeranna v. Krasayamma and Rame Gowda v. Special Land Acquisition Officer, Bangalore .
9. No doubt, I must also state that the ex parte decree that has been passed seems to be a blanket one without any qualification. In respect of Door No. 10/48 A it appears that the respondent-Town Panchayat could never levy or collect any property tax at all. Such an injunction cannot be granted at all. Further, even with reference to Door No. 10/ 48, it appears from the decree that no property tax could be collected forever by the respondent-Panchayat in excess of the abovesaid sum of Rs. 77.40 per year. Such an injunction also cannot be granted. When I pointed out this, the learned Counsel for the petitioner fairly admitted that the said injunction should be read only as restraining the respondent-Town Panchayat from levying or collecting tax in respect of either of the door Numbers except in accordance with law.
10. In the result, the civil revision petition is allowed, the order of the court below is set aside and I.A.No.425 of 1989 shall stand dismissed. However, there will be no order as to costs.
11. I may also add that it is highly regrettable that a public body like the respondent-Town Panchayat should have conducted itself so indifferently in defending the case against it. I also wish to point out that even in granting ex parte decree., the courts below should bestow necessary attention, so that patently unsustainable injunction decrees are not granted.