Madras High Court
P.S.San Basha vs N.Govindan on 28 March, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) No.2454 of 2009 P.S.San Basha .... Petitioner Vs. N.Govindan ..... Respondent Civil Revision Petition is filed under Section 115 CPC against the order and decretal order, dated 24.04.2009 made in I.A.No.451 of 2008 in I.A.No.237 of 2008 in O.S.No.9 of 2007 on the file of the learned District Munsif-cum-Judicial Magistrate, Pennagaram. For petitioner : Mr.M.Selvam For respondent : Mr.R.Subramanian O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
2. Challenging the order and decretal order, dated 24.04.2009 made in I.A.No.451 of 2009 in I.A.No.237 of 2008 in O.S.No.9 of 2007 on the file of the learned District Munsif-cum-Judicial Magistrate, Pennagaram, the present revision has been preferred.
3. It is seen that a suit in O.S.No.9 of 2007 was filed by the petitioner against the respondent herein, seeking declaration that an agreement, dated 19.03.2006 between the petitioner and the respondent is not a valid. The respondent herein filed a suit in O.S.No.39 of 2007 before the Sub-Court, Dharmapuri, seeking a decree for specific performance of contract between the petitioner and the respondent. The suit filed in O.S.No.9 of 2007 was dismissed for default, hence, the petitioner / plaintiff filed an application in I.A.No.237 of 2008 to condone the delay in filing application under Order IX Rule 9 CPC. The application to condone the delay in filing the petition under Section 5 of the Limitation Act and the other application to set aside the exparte order of dismissal were numbered simultaneously and after hearing both sides, the Court below passed a conditional order, whereby directed the petitioner herein to pay a sum of Rs.150/- as cost to the respondent on or before 30.10.2008 for allowing the petition. As the conditional order has not been complied with by the revision petitioner / plaintiff, on 31.10.2008, both the applications in I.A.No.237 of 2008 and I.A.No.238 of 2008 were dismissed by the Court below.
4. It is seen that the petitioner subsequently filed Interlocutory Application in I.A.No.451 of 2008, seeking extension of time for the compliance of the conditional order. However, the same was dismissed by the Court below on the ground that the petition itself was not maintainable, after the dismissal of the said applications. In the accompanying affidavit, the petitioner herein has stated that they could not file a petition seeking extension of time due to his ill-health on account of Chickenkuniya suffered by him. It is seen that no supporting evidence was adduced to substantiate the averments that the petitioner was suffering from Chickenkuniya. It is not in dispute that the Court below could not have simultaneously numbered the application filed under Section 5 of the Limitation Act to condone the delay and the other application filed under Order IX Rule 9 CPC. However, that would not prejudice the rights of the petitioner herein to decide the revision in his favour. It is seen that the Court below had taken a lenient view in passing a conditional order, accordingly, directed the petitioner herein to pay Rs.150/- to the respondent / defendant towards costs, however, the conditional order was not complied with by the petitioner herein. The Court below held that there is no satisfactory reason on the side of the petitioner for extension of time. It cannot be said that the Court below has erred in not granting time extension for the compliance, as it is the discretion of the Court below.
5. It is an undisputed fact that a suit in O.S.No.39 of 2007 pending between the petitioner and the respondent, based on an alleged agreement for sale, dated 19.03.2006. The respondent herein has filed the suit against the petitioner, seeking a decree for specific performance, based on the said agreement. In the said circumstances, the petitioner, being the defendant has to defend the suit by raising his legal defence. However, the petitioner herein had filed the suit in O.S.No.9 of 2007, challenging the agreement, dated 19.03.2006 entered into between himself and the respondent, but without prosecuting the case properly, the petitioner herein left it for dismissal and subsequently, filed petition to restore the suit along with an application to condone the delay. Though the Court below had liberal approach in allowing the application to condone the delay and passed a conditional order, that was not complied with by the petitioner.
6. As contended by the learned counsel appearing for the respondent, the attitude of the petitioner would show only to create multiplicity of proceedings. The petitioner filed the suit relating to the revision, challenging the agreement for sale, dated 19.03.2006. When the respondent himself has filed a suit for specific performance, the petitioner herein could have defended the case according to law. Filing another suit, challenging the validity of the agreement is unwarranted and further, the suit was left for dismissal. Then the petitioner filed an application to set aside the exparte order of dismissal with an application to condone the delay. The Court below passed a conditional order, directing the petitioner herein to pay cost of Rs.150/-, but that was not complied with.
7. According to the learned counsel appearing for the respondent / defendant, the suit in O.S.No.39 of 2007 filed by the respondent herein, seeking specific performance, was decreed exparte by the Subordinate Court, Dharmapuri and the petitioner herein has filed an application under Order IX Rule 13 CPC along with an application to condone the delay of 182 days in filing the application. On the aforesaid circumstances, I am of the view that as held by the Court below, there is no satisfactory reason or sufficient reason to condone the delay and allow the application filed by the petitioner herein in I.A.No.451 of 2008 in I.A.No.237 of 2008 in O.S.No.9 of 2007 on the file of the District Munsif-cum-Judicial Magistrate, Pennagaram. Various Interlocutory Applications filed by the petitioner would show that the petitioner had been interested in creating multiplicity of proceedings instead of defending his case, as defendant in the suit filed by the respondent, seeking a decree for specific performance of the contract and further, the petitioner herein left the other suit in O.S.No.39 of 2007 on the file of the Subordinate Court for exprate decree and subsequently, filed Interlocutory Application under Order IX Rule 13 CPC along with an application to condone the delay. In the aforesaid circumstances, it was argued that the dismissal of the revision would not prejudice the rights of the petitioner and it would not lead to failure of substantial justice, but allowing the petition would only create multiplicity of proceedings between the petitioner and the respondent.
8. Learned counsel appearing for the petitioner, in support of his contention relied on the following decisions :
1. Pichammal vs. Annamalai, 2008 (1) CTC 47
2. Gowri Ammal vs. Murugan, 2006 (3) CTC 418
9. In Gowri Ammal vs. Murugan reported in 2006 (3) CTC 418, a Division Bench of this Court has held that the duty of a Court is to administer justice and in such process, rigours of procedural law will have to be loosened and substantive justice should be administered and no order could be passed, based on mere procedural formalities, since procedure is meant to facilitate administration of real justice and not to defeat the same.
10. However, the aforesaid decision is no way applicable to the present case, since there is no need for the petitioner herein to file a suit, challenging the agreement when the respondent himself has filed a suit, based on the agreement, dated 19.03.2006, seeking specific performance of the contract. Being the defendant, the petitioner could have raised all his legal defence in the suit filed by the respondent herein and there is no need for a separate suit, challenging the agreement and to file an application to restore the same, after leaving the same for dismissal, with an application to condone the delay and subsequently, for non-compliance of the conditional order, which would show that the petitioner is protracting the suit filed by the respondent.
11. In Pichammal vs. Annamalai, reported in 2008 (1) CTC 47, this Court (M.VENUGOPAL, J) has held that Interlocutory Application filed under Section 148 CPC, praying for extension of time in regard to the payment of costs filed before the trial court on 28.02.2003 by the revision petitioner therein, after the expiry of the dead line for payment of costs expired on 27.02.2003, was held in the light of the decision rendered by the Hon'ble Apex Court in Salem Advocate Bar Association's case and by this Court in Gowri Ammal's case, wherein it was held that the trial court has power to extend time for payment of costs and the conclusion arrived at by the trial court that the Court has become functus officio is not sustainable. It is a settled proposition of law that the Court below has power to extend the time for making payment, however, it is only a judicial discretion.
12. Learned counsel appearing for the respondent also not disputed the dictum that the Court is not 'functus officio' in extending the time. However, it is clear that the petitioner has not satisfactory explained the delay caused in filing an application to set aside the exparte order of dismissal and to restore the suit. As discussed earlier, the dismissal of the suit is no way prejudicial to the rights of the petitioner, since the validity of the sale agreement has to be decided only in the suit filed by the respondent herein and the petitioner is not entitled to adopt delay tactics, by way of restoring a suit, which is not legally needed to defend his claim.
13. In the aforesaid circumstances, this Court is of the view that the revision petition has to be dismissed, to meet the ends of justice. Accordingly, this Civil Revision Petition is dismissed. There is no order as to costs.
28.03.2011 Index : Yes Internet : Yes tsvn To The District Munsif-cum-Judicial Magistrate Pennagaram.
S.TAMILVANAN, J tsvn C.R.P (NPD) No.2454 of 2009 28-03-2011