Joseph Michael v. K. Ramachandran — 1991 DIGILAW 930 (MAD)

Judgment :- This is an application filed by the defendant in the suit, under Order 14, Rule 12 of Original Side Rules, read with S. 151 of Civil Procedure Code to condone the delay of 255 days in filing the appeal against the order of the learned Master passed in the Application No. 3453 of 1989 dated 23-4-1990. 2. Application No. 1175 of 1991: This is an application filed by the defendant under Order 14, Rule 12 and Order 7, Rule 9 of the Original Side Rules to set aside the order passed by the learned Master made in Application No. 3453 of 1989, on the grounds mentioned therein. 3. Application No. 1176 of 1991: This application was filed by the defendant under Order 7, R. 9 of the Original Side Rules to set aside the decree passed in C.S. No. 127 of 1985 dated 21-6-1990 on the file of this Court. 4. Application No. 1177 of 1991: This application was filed by the defendant under Order XIV, Rule-12 of the Original Side Rules and S. 151 of Code of Civil Procedure, praying for the stay of the execution of the decree dated 21-6-1990, made in C.S. No. 127 of 1985 on the file of this Court, pending disposal of the appeal. 5. The short facts of the applicant/defendants case as culled out from all the four applications are as follows:— On the basis of alleged violation of the stipulations made in an Agreement dated 30-9-1977 entered into between the parties herein committed by the applicant herein, the respondent has filed the above suit against the applicant to recover a sum of Rs. The short facts of the applicant/defendants case as culled out from all the four applications are as follows:— On the basis of alleged violation of the stipulations made in an Agreement dated 30-9-1977 entered into between the parties herein committed by the applicant herein, the respondent has filed the above suit against the applicant to recover a sum of Rs. 4,16,845,81 under Order-VII of the rules of the Original Side of the Court and that accordingly, on the receipt of the suit summons, the applicant ought to have filed an application within ten days from thereof praying for an unconditional leave to defend the suit which he had not done, because one of the vital defences taken up by the applicant was that this court has no territorial jurisdiction and that pursuant thereto, an Application No. 329 of 1986 for revoking the leave granted by this Court in Application No. 605 of 1985 to file the above suit was initiated and that the same was dismissed by this Court on 10-2-1989 and again, O.S.A. No. 146 of 1989 preferred against the dismissal was also ended with the same fate on 17-7-1989 with the observation that it was open to the applicant to raise the question of jurisdiction in the trial of the suit. Then on 20-7-1989, within three days from the date of the disposal of the O.S.A. on 17-7-1989, the applicant filed two applications, one for condoning the delay of 1, 450 days in filing the application to leave to defend the suit and another one or unconditional leave to defend and that the application to condone the delay was taken to file and numbered as Application No. 3453 of 1989 and the other application was kept unnumbered. [Discussioin of facts omitted -Ed] xx xx xx 12. Under the circumstances, the points which arise for consideration are the following:— “(1) Whether the applicant/defendant has satisfactorily explained the delay of 255 days by giving specific reasons as contemplated by law? (2) Whether the learned Master has committed any error in passing the impugned order dated 23-4-1990? (3) Whether the applicant is entitled to any relief claimed in the applications? (4) What are the reliefs, if any the applicant is entitled to?” 13. (2) Whether the learned Master has committed any error in passing the impugned order dated 23-4-1990? (3) Whether the applicant is entitled to any relief claimed in the applications? (4) What are the reliefs, if any the applicant is entitled to?” 13. It is the common case that the respondent/plaintiff has filed the above suit in Civil Suit No. 127 of 1985 against the applicant herein, viz., the defendant to recover the sum of Rs. 4,16,845-81, allegedly due as per the agreement dated 30-9-1977 under the special procedure contemplated under Order-7 of the Original Side Rules and that the defendant, viz., the applicant with a view to defend the suit ought to have obtained an unconditional leave to defend within 10 days from the date of the summons in the above suit as contemplated by law and procedure. It is seen that the plaint in the above suit as per the case records, was presented in the Court in the month of February 1985 after obtaining to leave the sue in the order passed in the Application No. 605 on 1985 under Clause-12 of the Letters Patent and that the typed set filed on behalf of the respondent clinches the fact that on 2-4-1985, Thiru M. Subramanian, the learned counsel appearing for the applicant/defendant informed the counsel for the plaintiff of his entering of appearance in the suit and that thereupon, he sought for the copies of the plaint in the above suit from the counsel for the plaintiff on 8-4-1985 and that in Application No. 1057 of 1985 taken by the plaintiff, the defendant/applicant filed his counter on 19-4-1985 and that according to the counter-affidavit filed in the above applications that till today, there is no genuine or serious attempt on the part of the applicant/defendant to discharge his liability due to the plaintiff and is only taking out application after application for getting the matter delayed. 14. As per the order passed by the learned Master in his impugned order dated 23-4-1990, the defendant was served with the suit summons on 12-6-1985 and that an Application No. 329 of 1986 was filed by the applicant/defendant for revocation of the leave granted in Application No. 605 of 1985. 14. As per the order passed by the learned Master in his impugned order dated 23-4-1990, the defendant was served with the suit summons on 12-6-1985 and that an Application No. 329 of 1986 was filed by the applicant/defendant for revocation of the leave granted in Application No. 605 of 1985. But after due contest, the same was dismissed on 10-2-1989 and against which in O.S.A. No. 146 of 1989, filed by the applicant/defendant against the order passed on 10-2-1989 was also ended in dismissal by this Court on 17-7-1989. Thus, it is seen that the applicant/defendant who received the suit summons on 12-6-1985 was bound to take steps to obtain the unconditional leave to defend the suit within 10 days from the date of suit summons as per the procedure laid down under the original side rules. He deliberately failed to do so. But, on the other hand, he has filed Application No. 329 of 1986, for the revocation of the leave granted, but he was unsuccessful throughout and that this factum has been admitted by him very candidly in his affidavit. But, it is significant to note that by filing Application No. 329 of 1986 on the question of jurisdiction, he is fighting his case in this court till 17-7-1989 for a period of more than three years. He further admits that he did not file the application for leave to defend as contemplated by law. The reason for his inaction was that he has filed the Application No. 329 of 1986 for revocation of the leave granted and that therefore, the delay in filing the Application No. 3453 of 1989 amounting to 1,450 days happened which is neither willful nor want on, according to him. [Discussion on facts omitted Ed]. xx xx xx Then comes the question as to whether there was any necessity for the defendant to wait for the copies of the order passed by the learned Master on 23-4-1990 with a view to prefer the appeal. 18. In this context, it is useful to refer O. 14, Rule 12 of the Original Side Rules under which the present appeal has been filed by the defendant. 18. In this context, it is useful to refer O. 14, Rule 12 of the Original Side Rules under which the present appeal has been filed by the defendant. “Any person affected by any order or decision of the Master (except on a question of Court-fees) or of the Registrar, in respect of all matters judicially dealt with in the exercise of the powers delegated to him by the Honourable the Chief Justice from time to time may appeal therefrom to a Judge. Such appeal shall be any Judges summons filed within eight days of the date of the order or decision or within such further time as the Judge may allow and shall briefly set out the grounds of the appeal. Except with the special leave of the Court, no fresh affidavit or document or evidence will be allowed to be filed or adduced.” “It shall not be necessary to file a copy of the order or decision appealed against and the time for obtaining any such copy shall not be excluded in computing the said period of eight days. Unless the Court shall otherwise order, the filing of an appeal shall not operate as a stay of the order or decision appealed against.” 19. Thus it has been specifically provided in the above rule that the appeal has to be filed by the person aggrieved by any order or decision of the Master or of the Registrar, within eight clear days of the date of the order or decision, i.e., from 23-4-1990. But this clause provides an exception envisaging the power to the Court to grant any further time to entertain the appeal only when the aggrieved person proves every fact set out in the grounds of appeal. 20. The second limb of this rule clarifies the matter in detail as it clearly envisage the fact that it shall not be necessary to file the copy of the order or decision appealed against and the time for obtaining any of such copy shall not be excluded in computing the period of eight days. 20. The second limb of this rule clarifies the matter in detail as it clearly envisage the fact that it shall not be necessary to file the copy of the order or decision appealed against and the time for obtaining any of such copy shall not be excluded in computing the period of eight days. Thus, it was made very clear that if an appeal against the order of the decision of the Master is to be preferred, the aggrieved person need not produce the order copy to prefer an appeal and that this mandatory obligation has been further clarified in the second limb that the time for obtaining such copy of the order shall not be excluded in commuting the period of eight days. Thus the mandate specifically provided in this rule has to be clearly followed by the aggrieved person in order to have an immediate relief and remedy by preferring an appeal against the order of the learned Master and that in as much as the said conditions stipulated in this rule are mandatory in nature, the applicant/defendant ought to have filed the petition immediately within the time stipulated. 21. In the light of the above procedural law, I may at the outset reject the contention of the defendant made in para-4 of the affidavit filed in support of this Application No. 1174 of 1991 to the effect that the defendant had waited to get the order of the Master till 20-12-1990 and that for want of specific and adequate materials for the delay occurred, and I am of the definite view that the reasonings given in paras-4 and 5 of the affidavit to condone the delay of 255 days in preferring the above appeal are not correct, but the delay is wilful, deliberate and wanton and cannot be sustained for any purpose. In short, the defendant was fully aware that he need not wait till the copies of the orders from the Master is to be obtained nor it is necessary to be filed for preferring this appeal. In this context, the learned Master has elaborately and very crisply discussed the entire matter in substratum. 22. In short, the defendant was fully aware that he need not wait till the copies of the orders from the Master is to be obtained nor it is necessary to be filed for preferring this appeal. In this context, the learned Master has elaborately and very crisply discussed the entire matter in substratum. 22. Having considered the entire pleadings and the arguments advanced by the learned counsel Thiru Venkatapathy, on behalf of the applicant/defendant, I am not convinced with the given grounds for sustaining the same and hence, I reject each and every one of his contentions. Therefore, the applicant/defendant has not given any specific reasons for condoning the delay of 255 days nor explained any of the attendant circumstances warranting the indulgence of this Court to condone the alleged delay of 255 days. On the other hand, the reasonings given by the plaintiff in his counter-affidavit are found in total substance with the considerable merits and that therefore, accepting the contentions raised in his counter-affidavit, I hereby answer the point No. 1 that the applicant/defendant has not satisfactorily explained the delay of 255 days, by giving any explanation or reasons and that therefore, I am not in a position to condone the delay in presenting the appeal. Accordingly, I answer the Point No. 1 against the applicant/defendant 23. Accordingly, I answer the Point No. 1 against the applicant/defendant 23. Point No. 2: The main ground upon which the impugned order was challenged is that before passing the order in Application No. 3453 of 1989 on 23-4-1990 by the present learned Master, Thiru Kalimullah Baig, the former learned Master, heard the entire application in full and reserved for orders on 15-9-1989 and that when the present learned Master took over the charge, he did not re-open the case and hear any fresh arguments, but, however, he has chosen to pass the order on 23-4-1990 and that by doing so, the procedure adopted by the learned Master is highly objectionable and opposed to all cannot of principles of judicial precedents and thus the learned Master has committed procedural and legal impropriety and that the second ground urged before me by Thiru K.V. Venkatapathy, the learned counsel for the applicant is that the learned Master while dismissing the application, has not appreciated the factual points with reference to the delay of three days and his observation shows the non-application of his mind in the light of the fact that the appellant/defendant is the resident of Palai town in Kerala State and that in this context, the learned Master has failed to see that the delay of two days in between 17-7-1989 and 20-7-1989 has not affected the case much. 24. Per contra, Thiru, S. Gopalaratnam, vehemently opposed this ground and he drew my attention to the order of the learned Master to disprove the case of the defendant even on factual aspects of the case. With regard to the grievance expressed by the learned counsel for the applicant/defendant pertaining to the non-reopening of the case and not hearing the counsel by the present learned Master, I have perused the impugned order dated 23-4-1990. With regard to the grievance expressed by the learned counsel for the applicant/defendant pertaining to the non-reopening of the case and not hearing the counsel by the present learned Master, I have perused the impugned order dated 23-4-1990. The relevant para-3 at page-3 of the impugned order reads as follows:— “This court on perusal of the application, the affidavit and the counter-affidavit and the records relating thereto and on hearing the arguments of the learned counsel appearing for the applicant/defendant and also of the respondent/plaintiff orders as follows.” Thus a casual reading of this paragraph clinches the fact that there was no shadow of doubt that the learned Master perused the application, the affidavit and the counter affidavit along with the relevant records relating to the matter in issue and heard the arguments of the learned counsel for respondent/plaintiff and applicant/defendant and then only he has come to the conclusion that the applicant/defendant has no case at all. Thus, it has been made clear in the impugned order itself that the present learned Master has heard the arguments of the learned counsel for both parties, after the perusal of entire case records of the case. In the light of this specific observation, the grounds made in the application as well as the affidavit, that the learned Master has not reopened the case, nor heard the counsel on merits is to be thrown out as they have no merits at all. Even assuming the same as true, it is for the applicant/defendant to establish the alleged error and the impropriety of the learned Master. But the observations made by the learned Master specifically stipulated in the impugned order, clearly demonstrates the fact that he has not committed any impropriety or any procedural error, but it is manifest that the applicant himself made an attempt to take shelter under the pretext of the imaginary error or impropriety which has no substance in its base. 25. In this context, Thiru Gopalaratnam, the learned counsel appearing for the respondent/plaintiff drew my attention to several case laws reported in A.I.R. 1982 S.C. 1249, and the observations made by Lord Atkinson in Somasundaram v. Subramanian A.I.R. 1917 P.C. 30 and Madhusudan v. Chandrabati (A.I.R. 1917-P.C. 30 in support of his case. 26. 25. In this context, Thiru Gopalaratnam, the learned counsel appearing for the respondent/plaintiff drew my attention to several case laws reported in A.I.R. 1982 S.C. 1249, and the observations made by Lord Atkinson in Somasundaram v. Subramanian A.I.R. 1917 P.C. 30 and Madhusudan v. Chandrabati (A.I.R. 1917-P.C. 30 in support of his case. 26. The Privy Council in Somasundaram v. Subramanian A.I.R. 1917 P.C. 30 has held as follows:— “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar of by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court, are co nclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happening in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error and that is the only way to have the record corrected. If no such step is taken, the matter must necessarily rest there. Of course, a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross i njustice; but he may not call in question the very fact of making the concession as recorded in the judgment.” 27. In the light of the above legal ratio held out by the Privy Council and followed by all courts of our country throughout and in the context of the specific narration of events given in para-3 of the impugned order by the learned Master and that in as much as nothing has been attributed against the order of the learned Master, till the date of filing, this appeal covering for a period of 255 days, I am of the firm view that the alleged impropriety or the procedural error claimed to have been committed by the learned Master is nothing but a devise schemed out by the appellant/defendant to drag on the proceedings for some more time with a view to have an escape from his liability against the decree passed in the above suit and that therefore, the averments made by the applicant/plaintiff are clearly amounting to abuse of process of law as well as this Court and that therefore, the said ground is to be rejected in limine . 28. It is very unfortunate that an allegation has been made against the learned Master who disposed of the impugned application after perusing all the affidavits, counter-affidavits relating to the matter in issue only after hearing the arguments of the learned counsel for both parties herein. In this context, I may observe that what has been stated in the judgment or order by the Court is to be taken as conclusive, unless it has been proved contrary with reference to the actual proof of records as observed by Lord Atkinson in His decision in Somasundaram v. Subramanian A.I.R 1926 P.C. 136 that the judgments cannot be treated as mere counters in the game of litigations and that in the light of the said view, if at all the learned Master did not hear counsel for the applicant as well as the respondent and passed the impugned order on 23-4-1990, one would not expect the applicant/defendant to keep mum and inactive for a period of 255 days from the date of the said order without filing any appeal or without even taking any steps to correct the observation of the said order. Even on factual aspects of the case, the only ground urged before the learned Master on behalf of the applicant/defendant has been considered in its full stretch. Even on factual aspects of the case, the only ground urged before the learned Master on behalf of the applicant/defendant has been considered in its full stretch. For the points raised by Thiru Gopalratnam, the learned counsel appearing for the applicant/defendant was not in a position to meet the same with regard to the alleged legal impropriety. 29. Having considered, I am entirely in agreement with the learned counsel Thiru Gopalratnam and accept his contentions and arguments, and I am fully satisfied to hold that there are no merits and substance in this appeal and that accordingly, I hold that the learned Master has not committed any impropriety or procedural error in dismissing the Application No. 3453 of 1989 on 23-4-1990 and that nothing has been brought to my notice further to interfere with the order passed by the learned Master. Accordingly, I answer this point against the applicant/defendant. 30. Point No. 3: In Application No. 1176 of 1991, it was prayed that the decree passed by the learned Master in the above suit on 21-6-1990 was to be set aside on the same ground that the learned Master had dismissed the application without hearing the counsel and the party. This relief was resisted very seriously on behalf of the respondent by filing a counter-affidavit and the main attack brought on behalf of the respondent/plaintiff was on the basis of O. 7, R. 9 or Original Side Rules, which read as follows: “After decree, the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give level to the defendant to defend the suit, if it seems reasonable to the court so to do, and on such terms, as the Court thinks fit.” A bare reading of this rule envisage the fact that if a decree passed by the learned Master is to be set aside, the aggrieved person should prove the special circumstances to set aside; that it was provided further the necessary power to the court to stay the execution proceedings and set aside the execution levied already and grant leave even to the defendant to defend the suit subject to the condition that the Court finds it reasonable to do so. Thus, it was made clear that a vast discretionary power has been empowered to the court by this rule, but the exercise of the discretionary power necessarily depends upon the special circumstances which have to be proved. If that is the position what was the special circumstances which have been given in the instant case? 31. The only ground urged in Application No. 1175 of 1991 is the special circumstances according to the applicant/defendant herein and about which, I have given my clear and definite finding in Point No. 2 supra and in the light of my specific finding given in point No. 2 I am not even inclined to accept the said ground of alleged impropriety or procedural error which are pure innovations in the mind of the applicant and they do not amount to special circumstances as contemplated by law. In short, as was justifiably contended by the learned counsel, Thiru S. Gopalratnam, this application to set aside the decree passed by the learned Master is nothing but a ruse and a devise schemed out by the applicant/defendant in order to avoid the payment of the decree amount by the learned Master and that as such, I am able to see that the application is bereft of any merits and as such, liable to be dismissed. In this context, it may not be out of point to refer the inability of the learned counsel appearing for the applicant/defendant to defend the suit and that the defence of the applicant/defendant to the suit was practically nil and that under the present circumstances, I am of the definite view that there are no iota of merits in all the applications filed by the defendant in the suit. 32. Consequent to my findings given in all the above three applications, I am not inclined to accept the same ground taken in Application No. 1177 of 1991. 33. Having considered the entire pleadings, records, rival contentions and the established case and that under the said context, all the applications must fall to the ground. 34. Point-4:— In the result, all the application Nos. 1174 1175, 1176 and 1177 of 1991 are dismissed with costs.