Madras High Court
B.Rajendran vs D.Bakthavachalu on 10 December, 2021
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
C.R.P(PD)Nos.3447 & 3448 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 17.11.2021
Pronounced on 10.12.2021
Coram
The Honourable Mr.Justice J.SATHYA NARAYANA PRASAD
C.R.P(PD)Nos.3447 & 3448 of 2016
and C.M.P.No.17586 of 2016
B.Rajendran
...Petitioner in both C.R.Ps
Versus
D.Bakthavachalu
...Respondent in both C.R.Ps
Common Prayer:
These Civil Revision Petitions are filed under Article 227 of the
Constitution of India praying to set aside the order made in I.A.Nos.665 of
2015 & 437 of 2016 in O.S.No.115 of 2012 dated 30.06.2016 on the file of
Subordinate Judge, Cheyyar.
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C.R.P(PD)Nos.3447 & 3448 of 2016
For Petitioner
in both C.R.Ps : Mr.S.Umapathy
For Respondent
in both C.R.Ps : Mr.K.G.Senthilkumar
COMMON ORDER
These Civil Revision Petitions have been filed by the petitioner/plaintiff challenging the order passed by the learned Subordinate Judge, Cheyyar in I.A.Nos.665 of 2015 & 437 of 2016 in O.S.No.115 of 2012 dated 30.06.2016 respectively, in and by which, the learned Subordinate Judge has allowed the two Interlocutory Applications filed by the respondent/defendant, viz.,
(i) I.A.No.665 of 2015 filed under Section 5 of the Limitation Act, for condoning the delay of 356 days for filing a petition under Order IX Rule 13 of C.P.C.
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(ii) I.A.No.437 of 2016 filed under Order IX Rule 13 of C.P.C, for setting aside the ex-parte decree dated 27.02.2014.
2. The brief facts of the case are as follows:
The petitioner/plaintiff has filed an Original Suit in O.S.No.115 of 2012 before the Subordinate Court, Cheyyar for the following reliefs:
(a) Directing the respondent/defendant to receive the balance of sale consideration of Rs.2,03,000/- or more or less as per the actual measurement and after discharging this debt due to the Bank.
(b) Directing the respondent/defendant to deliver the suit properties to the petitioner/plaintiff and if he does not act as per the sale agreement.
(c) Restraining the respondent/defendant, his men and agent from encumbering the suit lands or alienating it to anybody executing to this petitioner/plaintiff and if he does not execute the sale deed.
(d) To execute the sale deed in favour of the petitioner/plaintiff and deliver the lands to the petitioner/plaintiff through Court. 3/12
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(e) If for any reason this Court comes to the conclusion that the petitioner/plaintiff is not entitled to the relief of specific performance then directing the respondent/defendant to return an advance sum of Rs.2,00,000/- with damages by way of interest at 24% in a sum of Rs.25,400/- till today and thereafter, at 12% p.a on Rs.2,00,000/- till realization.
(f) Directing the respondent/defendant to pay the suit costs to the petitioner/plaintiff.
2.1. When the suit O.S.No.115 of 2012 was posted for trial on 27.02.2014, the respondent/defendant did not appear before the trial Court. Therefore, he was set ex-parte and an ex-parte decree was also passed by the learned Subordinate Judge, Cheyyar. Subsequently, the respondent/defendant has filed an Interlocutory Application in I.A.No.665 of 2015 under Section 5 of the Limitation Act, for condoning the delay of 356 days in filing the petition under Order IX Rule 13 of C.P.C. The respondent/defendant has filed an affidavit in support of the said Application, in which, he has stated that he could not appear for trial on 4/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 27.02.2014 since he was suffering from Jaundice at that time and due to which, he could not go out his house.
2.2. The petitioner/plaintiff has filed a counter affidavit in I.A.No.665 of 2015, in which, he has stated that when the suit was initially taken up for hearing on 03.12.2012, the respondent/defendant did not appear before the trial Court and thereafter, on 10.01.2013, the respondent/defendant was set ex-parte and on the very same day, the ex- parte decree was passed by the learned Subordinate Judge, Cheyyar, as against which, the respondent/defendant has filed an application for setting aside the ex-parte decree dated 10.01.2013 passed by the trial Court. In the affidavit filed in support of the said application, the respondent/defendant has stated that on 02.02.2013, he was suffering from severe fever. The said application was allowed by the trial Court and thereafter, the suit was posted for cross examination of the petitioner/plaintiff by the respondent/defendant on 17.01.2014 and then, time has been extended for the same till 26.02.2014, however, the respondent/defendant did not appear before the trial Court for cross examination. Finally, on 27.02.2014, the trial Court has 5/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 passed an ex-parte decree in O.S.No.115 of 2012. Subsequent to the said ex-parte decree, the respondent/defendant has filed two Interlocutory Applications, viz.,
(i) I.A.No.665 of 2015 filed under Section 5 of the Limitation Act, for condoning the delay of 356 days for filing a petition under Order IX Rule 13 of C.P.C.
(ii) I.A.No.437 of 2016 filed under Order IX Rule 13 of C.P.C, for setting aside the ex-parte decree dated 27.02.2014.
2.3. The ex-parte decree in O.S.No.115 of 2012 was passed by the trial Court on 27.02.2014, but, the respondent/defendant has filed the aforesaid two Interlocutory Applications, only on 18.03.2015 i.e., after a period of one year from the date of ex-parte decree dated 27.02.2014. There were some defects in the aforesaid Interlocutory Applications which were filed by the respondent/defendant and therefore, the trial Court granted time for rectifying the same. After rectifying those defects, the respondent/defendant has filed the said Application once again on 05.11.2015, after a lapse of nine months.
6/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 2.4. In the meantime, the petitioner/plaintiff has filed an Execution Petition in E.P.No.101 of 2014 before the Subordinate Court, Cheyyar, under Order XXI Rule ii (a) of C.P.C., for executing the sale deed in respect of the schedule mentioned property in his favour and the same was allowed. The petitioner/plaintiff has paid a sum of Rs.54,100/- towards stamp paper charges and the sale deed was executed in his favour on 16.12.2015.
3. As far as this case is concerned, previously, the respondent/defendant was set ex-parte and an ex-parte decree was passed by the trial Court in O.S.No.115 of 2012 vide judgement and decree dated 10.01.2013 and thereafter, on 27.02.2014, he was again set ex-parte, by the trial Court, for the second time. On 10.01.2013, when the trial Court had passed an ex-parte decree in O.S.No.115 of 2012 for the first time, the respondent/defendant had filed an application for setting aside the said ex- parte decree, by stating that he was suffering from severe fever and so, he could not appear before the Court on 10.01.2013 and thereafter, on 27.02.2014, when the trial Court has passed an ex-parte decree in O.S.No.115 of 2012 for the second time, the respondent/defendant has filed 7/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 the aforesaid two Interlocutory Applications, namely, I.A.No.665 of 2015, for condoning the delay of 356 days for filing a petition under Order IX Rule 13 of C.P.C and I.A.No.437 of 2016, for setting aside the ex-parte decree dated 27.02.2014. There is an inordinate delay of 356 days in filing the condone delay petition under Section 5 of the Limitation Act. The respondent/defendant has to explain as to why he did not file the above petition, within a limitation period of 30 days. But, he has stated only one reason for the delay that he was suffering from jaundice on 27.02.2014, the date on which the ex-parte decree was passed in O.S.No.115 of 2012, apart from that, he has not mentioned anything about how long he was suffering from jaundice, the period of treatment and when he got recovered from jaundice. The learned Subordinate Judge ought to have seen whether the reasons stated in the affidavit filed in support of I.A.Nos.665 of 2015 & 437 of 2016 by the respondent/defendant are substantiated by relevant materials and facts.
4. Further, it is to be noted that the aforesaid two Interlocutory Applications were filed by the respondent/defendant belatedly, only after a 8/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 period of one year, which shows his lethargic attitude in conducting the case. Even after receiving the notice in E.P.No.101 of 2014, the respondent/defendant did not choose to participate in the said proceedings and remained ex-parte. The learned Subordinate Judge ought to have taken into consideration the conduct of the respondent/defendant, while passing orders in I.A.Nos.665 of 2015 & 437 of 2016, allowing the Applications. The suit in O.S.No.115 of 2012 was filed by the petitioner/plaintiff for specific performance and the sale deed was also executed in the favour of the petitioner/plaintiff as early as on 16.12.2015. Both I.A.Nos.665 of 2015 & 437 of 2016 were filed after a delay of 356 days and that too with certain defects, for which, the respondent/defendant took nine months to rectify the same and filed the petition only on 05.11.2015. Hence, nothing survives in the suit itself. But, all these facts were not taken into consideration by the learned Subordinate Judge while allowing the Interlocutory Applications filed by the respondent/defendant in I.A.Nos.665 of 2015 & 437 of 2016. The reason given by the learned Subordinate Judge for allowing these Applications is to avoid multiplicity of proceedings is not valid and tenable. 9/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016
5. In view of the above facts and circumstances of the case, the orders passed by the learned Subordinate Judge, Cheyyar in I.A.Nos.665 of 2015 & 437 of 2016 in O.S.No.115 of 2012 dated 30.06.2016 respectively, are hereby set aside and these Civil Revision Petitions are allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
10.12.2021 mrr Index : Yes/No Speaking Order (or) Non-Speaking Order 10/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 To The Subordinate Judge, Cheyyar.
11/12 https://www.mhc.tn.gov.in/judis C.R.P(PD)Nos.3447 & 3448 of 2016 J.SATHYA NARAYANA PRASAD, J.
mrr C.R.P(PD)Nos.3447 & 3448 of 2016 10.12.2021 12/12 https://www.mhc.tn.gov.in/judis