Madras High Court
R.Muniappan vs P.K.Kaliyappan on 17 June, 2017
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
C.R.P.(NPD)No.1660 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 17/08/2021
Delivered on 20/09/2021
CORAM :
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.R.P.(NPD)No.1660 of 2018 &
C.M.P.No.9031 of 2018
R.Muniappan .... Petitioner
Vs.
P.K.Kaliyappan .... Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the Fair and Decreetal Order dated 17.06.2017 passed in
I.A.No.395 of 2016 in I.A.No.392 of 2014 in O.S.No.210 of 2011, on the file
of the District Munsiff Court, Harur.
For Petitioner : Mr.Balan Haridas
For Mr.A.Prabakaran
For Respondent : Mr.AR.L.Sundaresan
For Mr.P.Valliappan
ORDER
This Civil Revision Petition arises out of the Fair and Decreetal order passed by the District Munsiff Court, Harur in I.A.No.395 of 2016 in I.A.No.392 of 2014 in O.S.No.210 of 2011.
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2. The brief facts of the case are that the respondent as plaintiff instituted the Suit O.S.No.210 of 2011, for specific performance. It is the case of the plaintiff that the defendant purchased the suit schedule properties from one Lakshminathan, vide sale deed dated 29.04.1993 and from Arimuthu and Chinnapalani, vide sale deed dated 03.05.1993, thereby he became absolute owner of suit schedule properties and on 11.07.1994, the defendant entered into sale agreement with the plaintiff agreeing to sell the suit properties for a total sale consideration of Rs.87,000/- and on that day itself, the entire amount was paid by the plaintiff and the possession was also handed over to him. It is further stated that the plaintiff had spent more than Rs.2,00,000/- to improve the land as such he has been enjoying the properties. He was always ready and willing to get sale deed executed in his favour, but the defendant was postponing execution of sale deed on one reason or other. While so, the defendant demanded a further sum of Rs.1,00,000/- from the plaintiff for executing the sale deed. Hence, he issued a legal notice, but the defendant evaded the notice.
3. The petitioner/defendant though entered appearance through his lawyer, however, he was set exparte on 27.06.2013 for non filing the written statement. Subsequently, the petitioner filed I.A.No.1024 of 2013 Page No.2/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 to set aside the exparte order. The said petition was dismissed for default on 09.01.2014. Thereafter, the plaintiff examined himself as P.W.1 and marked 8 documents. The trial Court decreed the suit on 30.01.2014.
4. In pursuance of the decree of specific performance, the plaintiff filed the Execution Petition No.4 of 2015 for execution of the sale deed, and even in the said proceedings also, the defendant remained exparte. Eventually, the Court executed the sale deed in favour of the plaintiff on 09.08.2016.
5. Thereafter, the defendant has filed two applications I.A.No.392 of 2014 to condone the delay of 26 days in filing the application and I.A.No.393 of 2014 to set aside the exparte Decree. I.A.No.392 of 2014 also came to be dismissed for default for non filing of batta on 01.07.2016.
Consequently, I.A.No.393 of 2014 was also dismissed on 17.06.2017.
6. I.A.No.395 of 2016 was filed to restore the application I.A.No.392 of 2014. It is his case that the interim application was posted on 01.07.2016 for filing batta, but on that day, the advocates boycotted the Court and he was also suffering from ailment, due to which, he could not Page No.3/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 file a Memo, hence, it was dismissed for default. The learned District Munsiff Court, Harur, dismissed the petition. Assailing the same, the present revision has been filed.
7. Mr.Balan Haridas, learned counsel appearing for the petitioner would argue that the sale agreement is a forged document. That apart, the suit was filed after lapse of 17 years, while Article 54 of the Limitation Act prescribes three years time to institute the suit. This aspect was not at all considered and the Judgment and Decree is not in confirmity with Order 20 Rules 4 and 5 of C.P.C. in as much as no finding has been given with regard to readiness and willingness as required under Section 16 (c) of the Specific Relief Act. He further added that in the year 2010 the property was settled by the defendant in favour his sons, who in turn executed a Power of Attorney and the property was sold by the Power Agent to one Shankar. He sold the property to one Geetha. The subsequent purchaser Geetha had also filed the suit O.S.No.49 of 2013 for declaration of her title and other reliefs, in which, she has given details of transactions, but it was not taken note of by the learned Judge. It is next contended that in the Execution Petition, no notice was served on the defendant, as the plaintiff gave wrong address.
Furthermore, on the date of execution of the sale deed, I.A.No.392 of 2014 Page No.4/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 and I.A.No.393 of 2014 were pending, therefore, the learned Judge ought not to have executed the sale deed in favour of the Decree Holder.
According to the learned counsel, the petitioner is entitled for an opportunity to defend his case and the present suit and the suit filed by Geetha in O.S.No.49 of 2013 can be tried together. He relied on the following judgments in support of his contentions:-
(i) Brahamand Farm Lands Ltd. Vs. Venkatesan [(2021) 3 CTC 84] "11. Insofar as the exparte decree is concerned in the suit for specific performance the litigation not to be terminated by default and the adjudication to be done as far as possible. In this regard, the learned Senior Counsel appearing for the petitioner relied upon the judgment reported in (2019) 7 SCC 359 in the case of Robin Thapa v. Rohit Dora, in which the Hon'ble Supreme Court of India held as follows:— “8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant.
The cause of justice does require that as far as possible, adjudication be done on merits."
(ii) M.Kumar Vs. Balan [2021 (4) CTC 330] "13. No doubt, the Hon'ble Supreme Court has held that mere delay in filing the suit for specific performance cannot be a ground to non-suit the plaintiff, if he is otherwise Page No.5/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 shown to be ready and willing to perform his part of the contract. Therefore, the judgment in Lakshmikantham's case cannot be a precedent to interpret law to the effect that the requirements of readiness and willingness were totally dispensed with. If only the plaintiff had issued notice within the time fixed under the agreement and filed the suit at the fag end of the limitation period, the decision in Lakshmikantham 's case would squarely apply and the plaintiff cannot be non-suited for being not ready and willing. But in the case on hand, the plaintiff had kept quiet for nearly 3 years before issuing notice seeking specific performance. No doubt, the delay after issuance of notice cannot be a ground to reject the relief for specific performance. In my considered opinion, the delay in issuing notice would definitely show that the plaintiff was not ready and willing to perform his part of the contract. Once it was found that the plaintiff was not ready and willing to perform his part of the contract, the appellate court erred in concluding that the delay in filing the suit cannot be taken as a ground for non-suiting the plaintiff."
(iii) K.P.Natarajan Vs. Muthammal [2021 (4) CTC 570] "22. The contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the exparte decree itself, by invoking the power under Article 227, does not Page No.6/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 appeal to us. It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code. In Surya Dev Rai vs. Ram Chander Rai and Others2, this Court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court. But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member Bench. In Radhey Shyam & Anr. vs. Chhabi Nath & Others3, the three member Bench, even while overruling Surya Dev Rai (supra) on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227 is distinguishable. Therefore, we do not agree with the contention that the High Court committed an error of jurisdiction in invoking Article 227 and setting aside the exparte decree."
(iv) In C.R.P.(NPD)No.2887 of 2018, dated 05.10.2018, this Court followed the earlier decisions of the Supreme Court, to condone the delay.
8. Per contra Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the respondent would contend that on the date of execution of the sale agreement, the respondent had paid the entire sale Page No.7/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 consideration and he was put in possession of the property. Thereafter, the plaintiff had spent more than Rs.2,00,000/- to develop the land and constructed a house by spending Rs.15,00,000/- and he has been residing in the property. He further added that no time limit is fixed for execution of sale deed and hence, it cannot be contended that the suit is barred by limitation. Admittedly, the defendant entered his appearance through an Advocate in the suit, but subsequently he was set exparte for his failure to file a written statement. Thereafter, he filed I.A.No.1024 of 2013 to set aside the exparte order, but he allowed it to be dismissed for default.
9. It is the submission of the learned Senior Counsel that though the defendant remained exparte, the learned Judge has categorically recorded the finding on readiness and willingness, which satisfies the requirement of Order 20, Rule 4 (1) & (2) of C.P.C. Thereafter, the defendant filed I.A.Nos.392 and 393 of 2014 for condonation of delay and to set aside the exparte decree. I.A.No.392 of 2014 was repeatedly adjourned on many occasions, specifically directing the petitioner herein to pay batta and eventually, it was dismissed on 01.07.2016 for default. But in the affidavit filed subsequently to restore the application, no wisher about non paying batta for about 23 hearings. It is further contended that the Page No.8/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 petitioner filed copy application only on 19.04.2018 for certified copy of the order, which was dismissed on 17.06.2017 and filed this revision on 07.05.2018. The conduct of the petitioner shows at each and every stage, he was lethargic, negligent and in the meanwhile, the respondent/plaintiff filed Execution Petition and sale deed was executed in favour of the respondent by the Court on 09.08.2016, and in the Execution Petition also, he remained exparte, hence, the petitioner is not entitled for indulgence of this Court. In support of the above submission, the following decisions have been relied upon:-
(i) 2009 (5) CTC 48 [Shanmugam Vs.Chokkalingam] "13. On a careful understanding of the aforesaid judgments of our Honourable Apex Court and this Court, I could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bona fide is imputable to a party claiming condonation.
14. In this backdrop, when we approach the facts and circumstances of the case, I could see that the petitioner had applied for condonation of delay of 332 days to set aside the ex parte decree on 9.6.2007 that was long after he had received notice in the EP and after taking time for filing counter in the said EP on 14.12.2006 and 25.1.2007. This would go to show Page No.9/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 that the petitioner was not diligent in filing the Petition to set aside the ex parte decree immediately after he received the notice in the execution proceedings. However, he had affirmed in his affidavit that he had filed the Petition immediately after the receipt of the notice in the Execution Petition and that is found to be untrue. Admittedly, the petitioner is working in a Bank and the reason stated by him was that he was not granted leave on 12.6.2006, on which date the ex parte decree was passed. He had also alleged that he was negligently silent and therefore, he could not take steps to set aside the ex parte decree immediately. Nothing was available in the affidavit towards the reasons for such negligence. Therefore, it could be construed as an inaction coupled with negligence on the part of the petitioner. The attitude of the petitioner in not filing the Petition to set aside the ex parte decree immediately after the receipt of the notice in the EP would also make that inaction coupled with negligence as wilful and that would also go to show that the petitioner has not placed the truth before the Court. Apart from that, he had not explained the delay in taking steps to set aside the ex parte decree from the date of receipt of the notice in the execution proceedings till he files the Petition to set aside the ex parte decree on 9.6.2007. That would show that the petitioner was not diligent in defending the case. According to the aforesaid judgments of this Court, the inaction even after taking notice from the EP Court would amount to wilful negligence on the part of the petitioner. Even if the Court wants to construe the reason assigned by the petitioner liberally in order to give him an opportunity to contest the Suit, the laches on the part of the petitioner in not taking steps to file the Petition to set aside the ex parte decree immediately on knowing the passing of ex parte decree against him would render no assistance from the Court. Even though the Page No.10/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 delay caused in filing the Petition to set aside the ex parte decree was 332 days, it was not explained by the petitioner with sufficient cause to condone the delay as contemplated in the judgment of our Honourable Apex Court. The petitioner is seriously lacking to apply the provision of Section 5 of Limitation Act, as the affidavit filed by the petitioner before the lower Court was also vague and bereft of particulars without any explanation for period commencing from the date of passing of the ex parte decree i.e., on 12.6.2006 till the date of filing of the Petition i.e., on 9.6.2007.
In the aforesaid circumstances, I could see that the lower Court had correctly exercised its jurisdiction to dismiss the Application filed by the petitioner. Therefore, I find no reason to interfere with the order passed by the lower Court."
(ii) 2011 (2) CTC 72 [Shivashankar and another Vs Sivabakkiam Muthusamy Trust] "12. Further, the earlier Application filed by the Revision Petitioners in I.A. No. 131 of 2008 on the very same ground was dismissed by the Court and that was not challenged and only after the rejection of the Application in I.A. No. 184 of 2010, the Revisions are filed. Even though, no time limit is prescribed for invoking the provisions of Article 227 of the Constitution of India, it must be exercised within a reasonable time and having allowed the order passed in I.A. No. 131 of 2008 in O.S. No. 397 of 2008 viz., the same Suit, it is not open to the Revision Petitioners to challenge the very Page No.11/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 same order by filing another Application. Hence, the order of the Court below is correct and I do not want to interfere with the order passed by the Court below."
(iii) 2014 (3) CTC 399 [Ayyanar Vs. Arumugan and another] "9. The Respondents herein, who approached the Trial Court with an Application to set aside the ex parte Decree, had caused a delay of 1185 days over and above the period of 30 days allowed for filing an Application under Order 9, Rule 13, C.P.C., to set aside the ex parte Decree. The entire stretch of delay had been sought to be explained at one stroke by casting the blame on the Advocate engaged by the Respondents herein. In the Affidavit filed in support of their Applications, it had been stated that the Advocate, who entered appearance on their behalf, got signatures in some papers informing them that the same would be used for preparing and filing Written Statement and that it would be enough for the Respondents herein to meet the Counsel only after receipt of intimation from him for trial."
(iv) 2016 (3) MWN (Civil) 73 [P.Sivaraj Vs. R.Selvaraj] "5. Without giving any details with regard to the ailments and treatment taken by the family members of the petitioner, the defendant sought to condone the delay of 255 days in filing the appeal. Even the document marked on the side of the defendant before the Lower Appellate Court as Page No.12/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 Ex.P1 relates to a surgery underwent by the defendant, which is after eleven months from the date of judgment and decree passed in the suit in O.S. No. 1523 of 2002. In the absence of any sufficient reason given by the defendant for condoning the delay of 255 days, the Lower Appellate Court has rightly dismissed the petition.
6. It is settled position that unless a party seeking for condonation of the delay gives sufficient cause for condoning the delay, the delay should not be condoned.
7. The ratio laid down by the Hon'ble Supreme Court in (2015) 1 SCC 680 [H. Dohil Constructions Company Private Limited v. Nahar Exports Limited] squarely applies to the facts and circumstances of the present case."
(v) 2016 (3) MWN (Civil) 404 [A.Aabitha Nachi Vs. K.S.Saroja] "20. In the case on hand, though the petitioners/defendants 1, 2 and 4 have stated that they came to know about the ex-parte decree only through a friend of the 5th defendant, the defendants did not even bother to mention the name of the so called friend of the 5th defendant. When the burden of proof lies on the defendants to satisfy the Court with regard to the delay, they should have mentioned the friend's name in the affidavit and have proved that they had the knowledge only in the first week of October 2013 through the said friend. In the case of Page No.13/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 failure on the part of the defendants to prove the contention stated in the affidavit, filed in support of the petition, the delay cannot be condoned. Though the defendants 1, 2 and 4 have stated that summons were sent to wrong address, the learned counsel, appearing for the respondents, pointed out that the summons were sent to the correct address and that, now the defendants 1, 2 and 4 have given the address of their Power Agent and are making submission that the address, mentioned in the plaint, is wrong.
21. When there is absolutely no explanation on the part of the defendants 1, 2 and 4 with regard to the delay, that had occurred between first week of October 2013 and 04.04.2014, the trial Court had rightly dismissed the petition. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned Senior Counsel for the petitioners, since the petitioners/defendants 1, 2 and 4 have not explained the reasons in any manner whatsoever, the said judgments are not applicable to the present case. The judgments, relied upon by the learned counsel, appearing for the respondents, squarely applies to the facts and circumstances of the present case.
22. The defendants 1, 2 and 4 having entered appearance in the Execution Petition on 14.02.2014, chose to file an application to set aside the ex-parte decree only on 04.04.2014. Since the delay that occurred between the first week of October 2013 and 04.04.2014 was not explained in Page No.14/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 any manner, whatsoever, the trial Court had rightly dismissed the application and declined to condone the delay."
(vi) 2017 (1) MWN (Civil) 372 [K.M.Balasubramanian Vs. C.Loganathan] "14. Now, the first point to be decided is whether the revision petitioner/judgment debtor has locus standi to file an application in E.A.No.136 of 2009 to set aside the sale?
It is pertinent to note that the revision petitioner/judgment debtor has no interest over the property on the date of the aforesaid transactions. Furthermore, as already stated, even though the property was attached on 28.01.2003 and the same was made absolute on 07.02.2003, the petitioner sold the property in favour of one M.Elangovan @ Karuppasamy on 10.04.2006 and he in turn sold the property in favour of one Parimala Devi, who is the wife of the petitioners Advocate on 18.03.2009. Thereafter, the revision petitioner/judgment debtor had filed this application on 18.04.2009 in E.A.No.136 of 2009 to set aside the sale on the ground that there was no proper publication of sale and that the decree itself is inexecutable. But as already stated, on the date of filing of the application in E.A.No.136 of 2009 and also on the date of the Court auction viz., 27.09.2007, the revision petitioner/judgment debtor is not the owner of Page No.15/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 the property and he is not having any right or interest in the property. In such circumstances, I am of the view that the revision petitioner/judgment debtor has locus standi to file the application.
24. Further, the revision petitioner in his evidence has categorically stated that he is aware of the fact that the sale has been conducted within one month from the date of auction. But instead of filing application under Order 21 Rule 90 CPC, he has filed the present application under Section 47 CPC, after a time period of 1 = years. So, on the date of filing of the said application, the revision petitioner was not having any right or interest over the property. So, the executing Court has rightly considered the same and came to a correct conclusion. Hence, I do not find any reason to interfere with the finding of the executing Court."
(vii) 2019 (1) MWN (Civil) 876 [Leela Vs. V.R.Asha] "12.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. There is no quarrel on such a proposition. But it is also well established principle that such an equity is subject to reasonable restrictions. It is no doubt true that an unintentional lapse on the part of the litigant should not normally cause the doors of the Court to be permanently shut to him. But more importantly such an equity would be Page No.16/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 extended only to the aid of a vigilant litigant and not the slumbering. The legal maxim Vigilantibus et non dormientibus jura subveniunt has come up for interpretation on various occasions before the Hon'ble Apex Court and the unanimous decision taken therein is that the law assists those who are vigilant and not those who sleep over their rights. The Court of law will never tolerate an indolent litigant since delay defeats equity. As such, the judgments relied upon by the learned counsel for the petitioner may not be of any help since the powers vested with the trial Court to invoke Section 5 of the Limitation Act is discretionary in nature and that there cannot be any positive and binding precedent compelling the trial Court to condone such an inordinate delay.
13.In the judgment of the Hon'ble Apex Court in the case of Hameed Joharan (dead) and others Vs. Abdul Saleem (dead) rep. by Lrs. and others reported in 2001 (7) SCC 573, it was observed that it cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times. In the judgment of the Hon'ble Apex Court in Chandigarh Administration and another Vs. Jasmine Kaur and others reported in 2014 (10) SCC 521, the Hon'ble Apex Court held that equity aids only the vigilant and not the one who sleeps over their right.
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14.The present case in hand is a classic example where the petitioner herein had insensibly slept over her rights for almost four years and three months. There is no explanation as to why and how she was unable to get in touch with her counsel or file an application inspite of her alleged medical ailment. Even otherwise, the certificate produced in the year 2016 with a causal reference that she had been suffering from back pain for the past six years, without any medical investigation, may not be considered as a proper document to establish her inability to file the application in time. As such, I do not find any infirmity in the order of the trial Court rejecting the petitioner's request to condone the delay in filing the application to set aside the ex-parte decree."
(viii) Salammal Vs. K.Arumugam and another (C.R.P.(NPD)No.2211 of 2013, dated 19.12.2018) "7.This Court has perused and examined the impugned order. As seen from the impugned order, the sale deed has been executed by the executing Court in favour of the first respondent and possession has also been delivered to the first respondent by the Court bailiff on 12.03.2013.
8.Further, it is the admitted case of the petitioner that an application to implead herself as a party to the suit O.S.No.73 of 2009 filed by the first respondent was also filed but not numbered and returned by the Registry and no Page No.18/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 further steps were taken against the return of the impleading application.
9.As seen from the impugned order, it is also made clear that the petitioner has also filed a separate suit O.S.No.36 of 2012 against the respondents for a declaration to declare that the suit schedule property in O.S.No.73 of 2009 is the absolute property of the petitioner. Only after recording these observations, the Executing Court by the impugned order has dismissed REA No.34 of 2013 filed by the petitioner. This Court is in agreement with the findings given by the Executing Court in the impugned order and therefore, does not find any infirmity in the same."
(ix) 2020 (1) MWN (Civi) 162 [D.Devarajan Vs. Alphonsa Mary] "9. However, the consequence of non-registration does not operate as a total bar to look into the contract, as the Proviso to Sec.49 itself carves out two exceptions : Where it can be used for any collateral purposes, and where it can be used as an evidence in a suit for specific performance. When the statute itself prescribes a legislative route within its scheme, that cannot be denied to the appellant herein."
(x) 2019 (1) MWN (Civil) 577 [M.S.Rathna Kumar Vs.Trilokchand]
8. This Court has perused the impugned order as Page No.19/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 well as the affidavit filed in support of I.A. No. 801 of 2007 filed by the petitioner/defendant seeking to condone the delay of 2019 days in filing the application to set aside the ex parte decree dated 13.08.1997. Admittedly, the petitioner received the suit summons in O.S. No. 163 of 1995 and has also engaged an Advocate to defend the suit. It is also an admitted fact that only due to the non-filing of the written statement, the petitioner/defendant was set ex parte and thereafter, only on 13.08.1997, an ex parte decree came to be passed in favour of the respondent/plaintiff against the petitioner/defendant. It is also an admitted fact, as recorded in the order passed in E.P. No. 29 of 2002 that the petitioner received notice in the execution petition who did not enter appearance and remained ex parte there also. It is also an admitted fact that the sale deed was also executed by the executing court in favour of the respondent/plaintiff. The petitioner/defendant has filed the condone delay application only after the sale deed was executed by the executing court in favour of the respondent/plaintiff. The only reason given in the affidavit filed in support of the condone delay application is that his Advocate did not inform him about the status of the suit.
9. The delay is an inordinate delay and no proper explanation has been given by the petitioner for condonation of such an inordinate delay. The Trial Court, after considering all these factors has rightly rejected I.A. No. 801 of 2007 Page No.20/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 filed by the petitioner seeking to condone the delay of 2019 days in filing an application to set aside the ex parte decree. This Court is of the considered view that there is no infirmity in the said order. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently connected miscellaneous petition is closed."
(xi) 2021 (1) MWN (Civil) 225 [M.Gopi Vs. A.S.Sasikala & another] "10. In the counter to I.A.No: 308 of 2016 the petitioner herein had taken a specific plea that the earlier application to set aside the exparte decree in I.A.No. 237 of 2014 was dismissed for non-compliance with the condition. At least after filing of said counter the petitioners should have filed an application for extension of time. The Trial Court dismissed I.A.No.308 of 2016 on the same ground, on 24.01.2017 at least thereafter, the petitioners should have sought for extension of time. They did not do so, they chose to challenge the order in I.A.No.308 of 2016 before this C.R.P.No. 2797 of 2018 Court and this Court also dismissed the civil revision petition. Of course, there was an observation that it will be open to the petitioners to approach the Court, seeking extension of time, if permissible under law. This observation was projected as if this Court had issued a direction to the Trial Court to extend the time, if an application is made by the petitioners. I find that the Page No.21/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 petitioners have been totally negligent and careless in their attitude in prosecuting the proceedings. May be, it is fault of the counsels who appeared for the petitioners but the petitioners cannot be allowed to blame their counsels and escape the rigour of law.
12. No doubt, the dismissal of an application to set aside an exparte decree would result in severe prejudice to the petitioners but the Court cannot also be oblivious to the plight of the person, who had succeeded in the suit as early as of the year 2014. I therefore, find that the Trial Court was in error in extending the time for compliance with the order dated 03.11.2014. The learned District Judge has not adverted to the reasons assigned for the non-compliance and the total absence of explanation for seeking extension earlier. The petitioners cannot be C.R.P.No. 2797 of 2018 allowed to blame their counsels and escape by changing their counsel at every stage."
10. I have given my anxious consideration to the submissions made by the counsels and perused the available materials.
11. In the instant case, the suit O.S.No.210 of 2011 was instituted for specific performance of the agreement dated 11.07.1994. In the plaint, it has been clearly stated that on the date of sale, entire consideration was Page No.22/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 paid to the defendant and the plaintiff was also put in possession of the property. It is further stated that the plaintiff was always ready and willing for registration of the sale deed, but the defendant was postponing to perform his obligation, stating that the plaintiff was already in possession of the property. Thereafter, the defendant demanded more money from the plaintiff and hence, he issued a notice and filed the suit.
12. A perusal of the records would show that originally, the local address of the defendant was mentioned in the plaint and thereafter address was amended and the notice was sent to his address in the State of Karnataka. The fact remains that the defendant entered his appearance through his counsel, but he failed to file written statement in time, hence he was set exparte on 02.07.2013. I.A.No.1024 of 2013 was filed to set aside the exparte order. Though the counsel appearing for the plaintiff had taken notice and opposed the petition, the Court directed the petitioner to give notice of hearing to the counsel. It is to be pointed out that on 07.01.2014, it was recorded that "already ample opportunity was given, notice of hearing not yet given, call on 09.01.2014, failing which the petition will be dismissed". Admittedly, on 09.01.2014, notice of hearing was not given to the counsel, who was appearing for the plaintiff, hence, the petition came Page No.23/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 to be dismissed for default.
13. The petitioner, who was well aware of the fact that he was set exparte in the suit filed by the respondent/plaintiff for specific performance, subsequently filed Application Nos.392 and 393 of 2014 seeking condonation of delay of 26 days in filing the application and to set aside the exparte order. It is evident from the records that in I.A.No.392 of 2014, the counsel, who appeared for the respondent-plaintiff made an endorsement stating that the notice can be sent to the party. So, the Court directed the petitioner to pay batta for sending notice to the respondent. It is pertinent to note that I.A.No.392 of 2014 stands adjourned from 25.06.2014 to 01.07.2016 for 23 hearings and on number of occasions, it was recorded that batta is to be paid within three days. It is not in dispute that batta was not paid. Eventually on 01.07.2016, I.A.No.392 of 2014 came to be dismissed. Consequently, the set aside petition I.A.No.395 of 2016 was also dismissed on 17.06.2017. In I.A.No.395 of 2016, which was filed to restore I.A.No.392 of 2014, the petitioner has stated that on 01.07.2016, the advocates boycotted the Court and he was also not well, except this nothing has been stated for his failure to pay batta on the earlier hearings, i.e., between 25.06.2014 and 26.06.2016. As already pointed, despite Court Page No.24/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 directions to the petitioner to pay batta in three days on many a times, it was not complied with. Considering these aspects, the learned Judge dismissed I.A.No.395 of 2016.
14. It is apposite to note that no time limit has been fixed in the sale agreement for performance of the contract. The agreement reads that as the purchaser had paid the entire sale consideration, the owner expressed his willingness to execute sale deed at any time. Article 54 of the Limitation Act stipulates three years to institute a suit from the date when the specific performance is refused. So, it cannot be contended that the suit is barred by limitation. In the execution petition, the local address of the petitioner has been mentioned and the notices were also affixed in his house. As mentioned above, originally in the plaint, local address was given subsequently a notice was sent to his karnataka address and he entered his appearance. In R.E.A.No.29 of 2016, which was filed to set aside the exparte in E.P, the petitioner/defendant himself has given his local address, which shows that he was not residing in the State of Karnataka. Perusal of the Judgment reveals that the learned District Munsiff has recorded the finding of the plaintiff's readiness and willingness in performing the contract. Furthermore, O.S.No.49 of 2013 was filed by the subsequent Page No.25/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 purchaser viz., Geetha, long after the suit for specific performance O.S.No.210 of 2011 was filed, therefore, it would not be appropriate to expect the respondent/plaintiff to mention the events which was taken place after filing his suit. Hence, I am unable to agree with the submission of the learned counsel for the petitioner.
15. Keeping in mind, the principles laid down in the above decisions and also taken note of the undisputed facts narrated above, in my considered opinion, the order impugned in this Revision does not warrants interference of this Court. In fine, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
20/09/2021 Index : Yes / No Internet : Yes Speaking order / Non Speaking Order rns Page No.26/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 Page No.27/29 http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 To The District Munsiff Court, Harur.
Page No.28/29http://www.judis.nic.in C.R.P.(NPD)No.1660 of 2018 K.KALYANASUNDARAM, J.
rns C.R.P.(NPD)No.1660 of 2018 & C.M.P.No.9031 of 2018 20/09/2021 Page No.29/29 http://www.judis.nic.in