Madras High Court
H.Basheer Ahmed vs S.Anandakumar on 28 July, 2023
CRP (NPD) No.1344 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 26.06.2023
Pronounced on 28.07.2023
CORAM:
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
CRP (NPD) No.1344 of 2016
and
CMP.No.7561 of 2016
H.Basheer Ahmed ... Petitioner/Plaintiff
Vs.
S.Anandakumar ... Respondent/1st defendant
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India seeking to set aside the fair and decreetal order dated 04.12.2015
made in I.A.No. 1995 of 2015 in O.S.No.691 of 2010, on the file of the
Principal District Munsif Court, Coimbatore.
For Petitioner : Mr.C.R.Prasanan
For Respondent : Ms.Kalaiselvi
*****
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https://www.mhc.tn.gov.in/judis
CRP (NPD) No.1344 of 2016
ORDER
The revision petition is preferred by the plaintiff against the order dated 04.12.2015 made in I.A.No.1995 of 2015 in O.S.No.691 of 2010 on the file of the Principal District Munsif Court, Coimbatore, for condoning the delay of 901 days in filing the petition to set aside the exparte decree passed on 09.01.2013, wherein and whereby the learned judge has allowed the petition by imposing cost of Rs.2500/- to the respondent and Rs.200/- to District Legal Authorities, Coimbatore.
Facts:
The petitioner/ plaintiff filed a suit for permanent injunction restraining the defendants and his men encroaching into 4 feet width East West passage and for mandatory injunction to demolish the building illegally constructed by the defendants in 4 feet common pathway in the suit property. According the petitioner/plaintiff, inspite of several opportunities afforded to the defendants, the defendants wantonly prolonged the suit by not filing their written statements for more than 2 years. The defendants having knowledge about the fact of passing of ex parte decree on 09.01.2013 and the same can be inferred 2/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 from the fact that they have filed a detailed counter statement on 13.10.2014 in E.P.No.18 of 2014 in O.S.No.691 of 2010 on the file of the Principle District Munsif Court, Coimbatore. There is no explanation on the part of the respondents/1st defendant as to why he has not preferred an application to set aside the ex parte decree along with his counter statement in E.P.No.18 of 2014 in O.S.No.691 of 2010, which was filed on 13.10.2010 itself. The respondents/1st defendant has come forward with the false statement that he was suffering from psychiatric problem whereas he had been contesting the execution petition. Though the respondent/1st defendant opposed the execution petition in the year 2014 itself, he has taken steps to set aside the exparte decree only on 29.07.2015. The respondent/1st defendant failed to give sufficient reason in the affidavit for filing the petition to condone the delay of 901 days for setting aside the exparte decree. The trial Court failed to consider the above facts and erroneously condoned the delay of 901 days in filing the petition to set aside the exparte decree passed on 09.01.2013. Aggrieved by this, the present revision petition filed.
2.The petitioner herein is the plaintiff in the suit in O.S.No.691 of 2010 on the file of the Principle District Munsif Court, Coimbatore. The plaintiff 3/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 has filed the above suit for the following relief:
(a) Mandatory injunction to demolish the defendants illegal construction in the 4 feet width East West common passage situated to the north of the plaintiff's building.
(b) Permanent injunction restraining the defendants for putting up any construction in the 4 feet width East West common passage situated to the north of the plaintiff's building.
3. The defendants were set exparte on 09.01.2013 for not filing their written statement. Thereafter, the respondent/1st defendant filed I.A.No.1995 of 2014 to condone the delay of 901 days in filing the petition to set aside the exparte decree passed on 09.01.2013. The trial Court allowed the application to condone the delay of 901 days in filing the application to set aside the exparte decree passed in O.S.No.691 of 2010. The present civil revision petition is against the order passed in I.A.No.1995 of 2015.
4.Heard on both sides, records perused.
5.Mr.C.R.Prasanan, the learned counsel for the petitioner/plaintiff 4/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 submitted that the trial Court erroneously condoned the delay of 901 days in setting aside the exparte decree passed on 09.01.2013 without assigning any proper reason. The trial Court failed to appreciate the fact that there is no explanation on the part of the respondent as to why he had not preferred an application to set aside the exparte decree along with counter statement in E.P.No.18 of 2014 in O.S.No.691 of 2010 which was filed on 13.10.2014 itself. The trial Court failed to take note of the fact that the respondent/ 1st defendant wantonly prolonged the suit by not filing the written statement for more than 2 years. He would further submit that the delay was inordinate which does not deserve any consideration. According to him, the respondent/1st defendant was given ample opportunities in the suit. Inspite of that, the respondent/1st defendant failed to file the written statement in the suit. The respondent/1st defendant failed to produce medical record to substantiate the cause for the inordinate delay and therefore sought for allowing the civil revision petition.
6.On the other hand, the learned counsel for the respondent/1st defendant countered the arguments of the petitioner's counsel and submitted 5/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 that the respondent/1st defendant has a valid and arguable defence in the suit. Therefore, in the interest of the justice, the trial Court has taken a lenient view and condoned the delay. According to him, there is no infirmity in the order of the trial Court.
7.I have given careful consideration to the submissions made by the respective counsel.
8.The delay in the instant case is 901 days, which can be termed as an inordinate delay. However, it has to be seen as to whether the defendants have properly explained each and every days delay. Before, venturing into the explanation adduced by the defendants, it would be appropriate to look into the conduct of the defendants through out the proceedings before the trial Court, Execution Court and ascertain as to whether he had been vigilant through out the entire course of the proceedings. The suit came to be filed in the year 2010. The defendants were set exparte on 09.01.2013 for not filing their written statements. Though ample opportunities were extended to the defendants to file their written statement, they have failed to do so and 6/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 ultimately they were set exparte on 09.01.2013. Thereafter, the petitioner/plaintiff has filed E.P.No.18 of 2014 in O.S.No.691 of 2010 for execution of the decree passed. In the said execution proceedings the revision petitioner/ 1st defendant after receipt of the notice has filed his counter statement on 13.10.2014. However, he failed to take steps to set aside the exparte decree. Only on 29.07.2015 a petition was filed to condone the delay of 901 days in filing the petition to set aside the exparte decree passed on 09.01.2013. The trial Court had allowed the said application by observing that, ''Though the causes insufficient, to prevent miscarriage of justice or injustice and in the interest of justice abide by natural principles of justice, this Court is inclined to allow this petition subject to cost to meet the ends of justice''.
9.The trial Court failed to take note of the fact that a mere averment that the respondent/1st defendant was suffering from psychiatric problem for the past 901 days would not be a proper and sufficient explanation for condoning the delay without any medical evidence, particularly, when the delay is inordinate. The issue as to whether the respondent/1 st defendant had a 7/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 good and arguable case in the main suit would be irrelevant in the case of a party who is not vigilant over his rights. Inspite of sufficient opportunities given to the respondent/1st defendant, failed to file his written statements for more than two years. As such the trial Court had not properly exercised its discretion in while allowing the petition to condone the delay. In an application seeking for condonation of delay, the seriousness of the case should be taken into account while exercising the discretion under Section 5 of the Limitation Act.
10.It is no doubt, true that the discretion under Section 5 of the Limitation Act 1963, has to be exercised liberally in order to advance substantial justice. But it is also well established principle that such an equity is subject to reasonable restrictions. The facts remains that the petitioner/plaintiff has initiated the execution proceedings in E.P.No.18 of 2014 in O.S.No.691 of 2010. Though the respondent/1st defendant filed his counter statement on 13.10.2014 failed to file an application to set aside the exparte decree. The respondent/1st defendant had filed the petition to condone the delay in filing a petition to set aside the exparte decree only on 8/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 29.07.2015. This would goes to show the lethargic attitude of the respondent/1st defendant. Except the mere averment in the affidavit, the respondent/1st defendant failed to show sufficient cause for his non- appearance before the trial Court. No medical evidence produced by the respondent/1st defendant before the trial Court. He has slept over his rights from the year 2010. As such the order passed by the trial Court in condoning the delay of 901 days in filing the application to set aside the exparte decree calls for interference.
11.In view of the foregoing reasons, I am constrained to hold that there are merits in the present civil revision petition. Accordingly, the same stands allowed. The impugned order passed in I.A.No.1995 of 2015 in O.S.No.691 of 2010 is set aside. Consequently, connected miscellaneous petition is closed. No costs.
28.07.2023 Index : Yes/No Internet : Yes vsn/cp 9/10 https://www.mhc.tn.gov.in/judis CRP (NPD) No.1344 of 2016 To The Principal District Munsif, Coimbatore.
K.GOVINDARAJAN THILAKAVADI vsn/cp Pre-deliver order made in CRP (NPD) No.1344 of 2016 and CMP.No.7561 of 2016 28.07.2023 10/10 https://www.mhc.tn.gov.in/judis