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2001 DIGILAW 1687 (AP)

A. S. Kannaiyan v. B. Munemma

2001-12-24

B.S.A.SWAMY

body2001
B. S. A. SWAMY, J. ( 1 ) AGGRIEVED by the orders of the District Judge, Chittoor passed in CMA no. 14 of 2001 wherein the learned Judge set aside the orders dated 11. 10. 1996 passed by the Subordinate Judge, Chittoor in LA No. 625 of 1992 in OS No. 32 of 1983, the present CRP is filed. ( 2 ) AS the Respondent Counsel Sri V. Vidyasagar strenuously argued this matter. I am forced to pronounce a detailed order on his contentions, otherwise the revision petition would have been allowed with a few words. ( 3 ) THE factual background of this case is that the petitioner filed OS. No. 32 of 1983 against the respondents i. e. , B. Munemma and B. Venkatadri Naidu, the Son and the Mother, by showing them as D. I and D. 2 for relief of specific performance of agreement of sale dated 7. 5. 1982. In the suit one Sri R. S. V. Narasimha Raju along with two other advocates Mr. V. Suresh Babu and Mr. K. S. Gopalakrishna appeared for both the defendants. I understand two different written statements were filed on behalf of both the respondents herein but subsequently the suit was decreed ex parte on 23. 4. 1985. The petitioner i. e. , the defendant No. 2 thereafter filed two IAs. One is LA No. 517 of 1985 for condonation of delay in filing the application for setting aside the ex parte decree along with another application for the purpose. But the respondent did not press for the disposal of these applications. Supply this fact on 8. 7. 1992 i. e. , after seven years the respondent filed another application for condonation of delay is filed and that application was allowed by order dated 6. 9. 1996 in the following words "that the petitioner do deposit the suit costs and get ready for cross-examination of PW1 on 17. 9. 1996 failing which this petition stands dismissed". Having failed to comply with the order and obtained two adjournments. Thereafter she deposited the amount discretely on 25. 9. 1996. Subsequently the LA. for setting aside the ex parte decree was numbered as LA No. 625 of 1992. Even after condonation of the delay in filing the application, the respondent did not evince any interest to get the IA No. 625/ 92 disposed of. Thereafter she deposited the amount discretely on 25. 9. 1996. Subsequently the LA. for setting aside the ex parte decree was numbered as LA No. 625 of 1992. Even after condonation of the delay in filing the application, the respondent did not evince any interest to get the IA No. 625/ 92 disposed of. In fact, the Additional subordinate Judge, Chittoor, while allowing the application for condonation of delay on payment of suit costs on 6. 9. 1996 directed the respondent to get ready to cross-examine the plaintiff on 17. 9. 1996 with a default clause observed that the respondent has not evinced any interest in disposal of the application. It is useful to extract the order of the Sub-Judge, which is as follows: "on 25. 9. 1996 the 1st respondent plaintiff filed a memo requesting the Court to consider the conduct of the parties and to record on the docket the consequential order in pursuance of the failure of the petitioner to comply the conditions imposed by the Court on 6. 9. 1996. The 2nd respondent/defendant has filed some objections on the memo and in my opinion, they are all irrelevant. The 2nd respondent was enlightening the Court on its power of enlargement under Sections 148 and 151 of CPC. / am at a loss to understand the suspicious conduct of the petitioner to keep silent all these days subsequent to the conditional order dated 6. 9. 1996. It is at the instance of the petitioner/ 1st defendant, the petition is filed and for her benefit the order dated 6. 9. 1996 has been passed. There is absolutely no reason for the petitioner to keep silent without complying the order dated 6. 9. 1996. So far no application has been filed by the petitioner or the 2nd respondent for enlargement of the time for the deposit of the suit costs. " ( 4 ) IN view of the circumstances with an intention to give a fair opportunity to the petitioner to proceed with the main suit the present petition is allowed with the following conditions. (1) Petition is allowed on condition that the petitioner deposits the suit costs and get ready for cross-examination of PW1 on 17. 9. 1996 failing which the petition stands dismissed. ( 5 ) ON 17. 9. (1) Petition is allowed on condition that the petitioner deposits the suit costs and get ready for cross-examination of PW1 on 17. 9. 1996 failing which the petition stands dismissed. ( 5 ) ON 17. 9. 1996 one Sri V. Suresh Babu, Counsel for the 2nd respondent i. e. B. Venkatadri Naidu filed I. A. No. 565 of 1996 seeking adjournment on behalf of D2. It is interesting to note that the Counsel did not obtain the permission of the previous Counsel while filing his Valakat for D-1. The fact remains that this application is filed on behalf of D. 2 and the case was adjourned to 29. 9. 1996. On that day the same Advocate filed another I. A. No. 5718 of 1996 on behalf of the respondent herein by stating that the respondent is an old lady. But due to non-availability of leave the second respondent defendant was unable to attend before this Hon ble Court. On that petition the Sub-Judge adjourned the matter to 25. 9. 1996. On that day one Sri P. Umapathi Naidu filed Valakat for D2 again without the consent of the earlier Counsel. He seemed to have deposited the costs in the Court. On 11. 10. 1996 the I. A. No. 625 of 1992 seeking to set aside the exparte decree was dismissed by holding that there is absolutely no reason for the petitioner to keep silent without complying the order dated 6. 9. 1996 and so far no application has been filed by the petitioner or the second respondent for enlargement of time for the deposit of suit costs. It appears that the petitioner instead of seeking permission of the Court to deposit costs, has discretely deposited a sum of Rs. 1,507/- into Court on 25. 9. 1996. ( 6 ) BUT in the present case the petition is not under Section 151 of Civil Procedure Code but it is only an adjournment petition that has been filed by the 2nd respondent and not by the petitioner who has to comply with the conditions. There lies whole difference. Therefore, the so-called deposit of the suit costs cannot be treated as compliance of the conditional order. There lies whole difference. Therefore, the so-called deposit of the suit costs cannot be treated as compliance of the conditional order. Aggrieved by the said order, the respondent carried the matter in appeal and the learned District Judge allowed the CMA No. 14 of 2001 by observing that the Court is having ample power to enlarge the time under Section 148 of the CPC. It is interesting to note that the learned District Judge in Para 11 observed as follows: "it is to be noted that the conditions imposed by the trial Court in its order, dated 6. 9. 1996 were conditions fixed, decided and imposed by the Court itself, but not prescribed by the Code of Civil Procedure, 1908, though allowed by the said Code". I can only observe that the District Judge without looking into Order 9, rule 13 made such an observation where-under the Court is bound to make an order while setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. The reasoning given by the District Judge runs counter to this provision. In Para-14 the learned Judge observed "in any view there is no necessity to debate on the power of the Court to enlarge the time after expiry of the time or period fixed as the Court allowed the adjournment petition on 17. 9. 1996 and ordered on that petition that time was extended till 20. 9. 1996, without recording the automatic dismissal of LA. No. 625 of 1992. Without seeing the petition and the docket order, the learned Judge jumped at the conclusion that the time was extended. As far as the principle that the Court is having power to enlarge the time after expiry of the period of time there may not be any dispute provided the concerned party files an application seeking extension of time. ( 7 ) IN the light of these factual back ground this Court is called upon to decide whether the Court can enlarge the time for depositing the costs of the suit as observed by the District Judge. ( 7 ) IN the light of these factual back ground this Court is called upon to decide whether the Court can enlarge the time for depositing the costs of the suit as observed by the District Judge. ( 8 ) THE learned Counsel Sri Vidya Sagar appearing for the respondent while admitting that he has not filed any application seeking extension of time, strenuously contended that the very fact the learned Judge has adjourned the matter twice a presumption will arise that the time for depositing the amount is extended. I am sorry I cannot agree with the contention of the Counsel. Whatever may be the delaying tactics adopted by the respondent pointed out by the Sub-Judge for getting the applications for condonation of delay in filing the application for setting aside the exparte decree, I am limiting myself to examining the conduct of the party after the Court allowed the application on 6. 9. 1996. While allowing the application the trial Court categorically directed the respondent to deposit the suit costs and to get ready to cross-examine PW1 on 17. 9. 1996, in default the order allowing the application to set aside the ex parte decree stands dismissed. ( 9 ) THE learned Counsel for the respondent Mr. Vidya Sagar placed reliance on a judgment of Madras High Court in Basavayya v. Venkatappayya, AIR 1926 Mad. 676. The lower Court discussed the judgment and clearly pointed out that this judgment does not come to the help of the respondent. ( 10 ) FROM the above order, I have no hesitation to hold that the respondent has to comply both the conditions to proceed further in the matter. On 17. 9. 1996 and 20. 9. 1996 one Mr. Suresh Babu claiming to be the Counsel for the Venkatadri Naidu filed applications seeking adjournments on behalf of D2. The Counsel for the respondent submits that the said Mr. Suresh Babu has nothing to do with his client and he is appearing for Venkatadri Naidu. If that is a fact, as the application for setting aside the ex parte decree was filed by his client she must have paid the amount on that day and she must be ready to cross-examine the plaintiff. He has done neither of them. Suresh Babu has nothing to do with his client and he is appearing for Venkatadri Naidu. If that is a fact, as the application for setting aside the ex parte decree was filed by his client she must have paid the amount on that day and she must be ready to cross-examine the plaintiff. He has done neither of them. If the Counsel for the respondent is present physically in the Court he would have objected for filing an adjournment application by Suresh Babu if he is not representing the respondent therein but he did not move in the matter. On the other hand, on the 3rd day of adjournment i. e. , on 25. 5. 1996 the previous advocate has gone out of record and one Umapathi Naidu filed Vakalat on behalf of D-2 more so without consent of the previous advocate and the respondent some how managed and paid the amount in the Registry. When I. A. No. 625 of 1992 was taken up for hearing, the Subordinate Judge having noted the conduct of the respondent clearly observed that the amount was discretely deposited in the Court. The Counsel for the respondent submits that as the Court accepted the amount deposited, it should be deemed that the Court enlarged the time for payment of the costs. If really the officer is aware of the payment of the amount in the office he would have not passed such an elaborate order wherein the conduct of the parties was discussed and ultimately held that the so called deposit of the suit costs cannot be treated as compliance of the conditional order. The learned District Judge without examining the case of the parties from their proper perspective, jumped at the conclusion that the Court is having ample power to enlarge the time under Section 148 CPC. Yet time can be extended, but at what point of time and how it can be extended. It should be by way of Filing an application and on ordering such application only the time fixed by the Court will be extended otherwise not. It is not the case of the respondent that she paid the amount on 17. 9. 1996 nor she filed an application seeking extension of time. Hence, the trial Court is right in observing that the suit costs were deposited by the new advocate who entered appearance on behalf of D2. It is not the case of the respondent that she paid the amount on 17. 9. 1996 nor she filed an application seeking extension of time. Hence, the trial Court is right in observing that the suit costs were deposited by the new advocate who entered appearance on behalf of D2. Again, it can be seen from the order of the Court below that if the conditions are not fulfilled the application stands dismissed. On 17. 9. 1996 itself the order was worked out and unless it is reopened there is no need even for the trial Court to pass a detailed order in IA No. 625 of 1992. Be that as it may, while passing the orders he has correctly appreciated the facts of the case and dismissed the application. Hence, I have no manner of doubt that the District Judge gravely erred in allowing this application more so, in a case of this nature where the party is playing hide and seek tactics with the Court i. e. , having entered appearance and filed written statement she allowed the Court to pass an ex parte decree and then she filed the application for condonation of the delay and that delay was condoned after 7 years even though the application filed by the party for setting aside ex parte order was disposed of in the year 1996. After the I. A was filed without complying with the order she approached the Court for adjournment by giving lame excuse. It is interesting to note that the Advocate filed the affidavit in this case along with the petition. Normally if the client is not there and if the advocate received appropriate instructions he is expected to file a memo or a verified petition, but not an affidavit. Even this simple formality was neither followed by the Advocate nor the officer objected to the same. Now, the Counsel for the respondents strenuously contends that the respondent is not a party to the agreement and she is an elder and old woman and she is not aware of the legal procedure. Hence, she may be given an opportunity to put forth her case. Admittedly, the defendant No. 1 is her son and it is not her case that defendant No. 1 has not executed agreement of sale. Hence, she may be given an opportunity to put forth her case. Admittedly, the defendant No. 1 is her son and it is not her case that defendant No. 1 has not executed agreement of sale. In fact, the defendant No. 1 remained ex parte and he has never taken any steps to get the ex parte decree set aside. If really, that Venkatadri Naidu, the son of the respondent has sold the land without her consent nothing prevented her from filing a partition suit and getting her rights worked out in that suit as the executant never disputed the execution of the agreement of sale. It is also seen that the disposal of the IA No. 625 of 1992 the Court executed the sale deed on 6. 10. 1996 and the petitioner was put in possession of the property on 7. 11. 1996 and thereafter the revenue authorities also issued pass books. Hence, I feel that the application IA No. 625 of 1992 is filed only to drag on the proceedings without any sufficient cause and in fact the respondent succeeded in her attempt in dragging the proceedings from 1985 to 2001 i. e. , for 16 long years. Now it is time for her to take rest. ( 11 ) IN the circumstances of the case, the revision petition is allowed. No costs.