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2001 DIGILAW 424 (MAD)

Palanisamialias Palaniappan v. P. K. Damodaran

2001-04-02

K.P.SIVASUBRAMANIAM

body2001
ORDER The above revision is directed against the order of the I Additional Subordinate Judge, Coimbatore, in C.M.A.No.96 of 1991 confirming the order of the I Additional District Munsif, Coimbatore, in I.A.No.517 of 1900 in O.S.No.1450 of 1973. 2. I.A.No.517 of 1980 was filed under O.9, Rule 13, C.P.C. read with Sec.151, C.P.C. and Sec.17 of the Limitation Act, by the judgment debtor. 3. He contended that he received a notice on 17.1.1979 in E.P.No.9 of 1979 in O.S.No.1450 of 1973 from the Court and only on that day and subsequent to the verification of the records he came to know that the respondents had obtained an ex parte decree on 8.1.1974. Though the decree had been passed on 8.1.1974, he had no knowledge of the decree till now and there was no negligence on his part in not taking any steps to set aside ex parte decree. Immediately after service of notice in E.P.No.9 of 1979 and verification of the records he has filed the present application to set aside the ex parte decree. He was in possession and enjoyment of the property for over 35 years having taken a vacant site measuring about 62 feet east-west on either side and 65 feet south to north from one Kondaswamy, father of the respondent. He was regularly paying rents and also spent more than Rs.10,000 for putting up the superstructure. The description of property given in the plaint was incorrect. There was a fire accident in the year 1968 and several houses were destroyed and when the affected victims were rebuilding their houses, the respondents filed O.S.No.953 of 1968 alleging falsely that they are trespassers and sought for an injunction to restrain them from rebuilding their houses. He has also filed a detailed written statement and asserted his right under the city Tenants Protection Act. Ultimately, the suit was dismissed. After some years, the respondents kept quiet and were collecting only ground rents from all the tenants. The respondents were not in the habit of issuing any receipt. On 7.12.1971, the respondents issued a notice stating that he was in arrears of rent for 41 months at the rate of Rs.12 per month. a suitable reply was given on 23.12.1971. After some years, the respondents kept quiet and were collecting only ground rents from all the tenants. The respondents were not in the habit of issuing any receipt. On 7.12.1971, the respondents issued a notice stating that he was in arrears of rent for 41 months at the rate of Rs.12 per month. a suitable reply was given on 23.12.1971. In the middle of 1973, there were talks of settlement amount the different land owners with their respective tenants and since all the tenants were entitled to the benefits of the City Tenants Protection Act, the negotiations prolonged indefinitely. He had also contacted his lawyer and in the meanwhile the respondents agreed to sell the site in his possession for Rs.1,950 per cent and paid an advance of Rs.1,500 by cheque. At the same time, one Devaraj, son of Venkidusway Naidu being the adjacent land owner, also sold some plots to some of his tenants for the same price. He is also aware of the sale agreement in favour of the respondents. He had also obtained an affidavit from him and filed along with the application for setting aside ex parte decree. He has paid a sum of Rs.2,900 and Rs.2,500 on different date and altogether he has paid Rs.6,900 towards sale consideration. The respondents promised to execute the sale deed after settling with other tenants also. As soon as the payment was completed, it was informed that they will ask their lawyer and his lawyer to withdraw the quit as settled out of Court. Believing the words of respondents, he did not meet his advocate thereafter. Subsequently, respondents told him that they had withdrawn the suit and therefore, he had not knowledge about the ex parte decree. Therefore, according to the petitioner, the decree under execution has been obtained by fraud and the respondents were trying to take steps to evict him from the premises. He has not committed any default in payment of the rents. The notice of termination of tenancy was illegal. He would further state that he had no knowledge of E.P.No.140 of 1976 and that once the respondents took his signature in a filled paper saying that it was a notice for the survey department for sub-dividing the property and that he now suspects that the respondent had cheated him by obtaining his signature with ulterior motives. He would further state that he had no knowledge of E.P.No.140 of 1976 and that once the respondents took his signature in a filled paper saying that it was a notice for the survey department for sub-dividing the property and that he now suspects that the respondent had cheated him by obtaining his signature with ulterior motives. With the result, revision petitioner herein, prayed for setting aside the ex parte decree passed against him on 8.1.1974. 4. Along with the said affidavit, he had also fled a supporting affidavit from one V.Devaraj claiming to be an adjacent land owner. According to him all the landlords agreed to sell their sites to the tenant for Rs.1,950 per cent and had received an advance of Rs.1,500. He would further state that the defendants also told him that the suit against him was withdrawn. 5. In the counter statement by the respondents, while denying the allegations, the respondents, contended that in E.P.No.140 of 1975, the petitioner had in fact received the notice. Even assuming that he came to know about the decree only later, the petition should have been filed within 30 days for setting aside the ex parte decree. The contention that he was in possession for over 35 years was also denied. The father of the plaintiff had obtained possession of the suit site only in the year 1954 after final decree in O.S.No.257 of 1946. The suit referred to in paragraph No.4 of the affidavit was only an injunction suit and had nothing to do with the present application. Ever since the suit notice had been served on the petitioner on 7.12.1971, he had not paid even a single paise to the plaintiff. No payment was at all made to the plaintiff. The cheque referred to in paragraph No.6 of the affidavit was issued under totally different circumstances. The defendants son needed money and he approached one Purushothaman for money. Since he did not have ready cash, he approached the plaintiff for money and he gave the money to the said Purushothaman, who appears to have handed it over to Chandran. When the amount was returned by the said Chandran, since it was due to the plaintiff, Purushothaman directed Chandran to issue a cheque for Rs.1,500 in the name of the plaintiff. The plaintiff had in turn collected the amount. When the amount was returned by the said Chandran, since it was due to the plaintiff, Purushothaman directed Chandran to issue a cheque for Rs.1,500 in the name of the plaintiff. The plaintiff had in turn collected the amount. The said amount was not given as an advance or any such thing towards the sale of the site. The allegation that he had paid sum of Rs.2,900 and Rs.2,500 respectively was absolutely false. The petitioner had full knowledge of E.P.No.140 of 1976 and the notice had been served on him through Court. It was rather peculiar that the petitioner had not mentioned about this and should have stated the same for the first time now. Therefore, the excuse given by the petitioner was totally false. 6. The trial Court on consideration of the mutual submissions held that there was absolutely no justification for the petitioner which had been filed with an unexplained delay of five years and hence, dismissed the application. On appeal also, the Appellate Court confirmed the order of the trial Court and dismissed the appeal. Hence, this revision petition by the judgment-debtor. 7. Mr.T.R.Mani, learned senior counsel for the petitioner took me through the affidavit of the petitioner and the supporting affidavit and contended that the factum of negotiations between the landlord and tenants had been clearly established. The third party had also in his supporting affidavit mentioned that he was informed by the petitioner that the suit against him had been withdrawn. But he was also examined in the evidence as P.W.2. In fact, P.W.2 was related to the respondents. There was no evidence at all on the side of the respondents in this context and hence the Courts below ought to have accepted the case of the petitioner. The findings otherwise by the Courts below are totally unsustainable and without any evidence. The only document filed on the side of the respondents, the service of notice on the petitioner in E.P.No.140 of 1996 was not properly proved in accordance with law by examining any witness. The payment of Rs.1,500 towards sale consideration by the petitioner has not been disputed and there was also no explanation by the respondents for having received the said amount. The execution of the agreement had also not been denied. Therefore, the petitioner had established fraud and also the respondents had not adduced any rebuttal evidence. The payment of Rs.1,500 towards sale consideration by the petitioner has not been disputed and there was also no explanation by the respondents for having received the said amount. The execution of the agreement had also not been denied. Therefore, the petitioner had established fraud and also the respondents had not adduced any rebuttal evidence. In this background the evidence clearly established fraud as alleged by the petitioner. On 7.12.1971, the suit notice which had been issued for which a reply was also sent on 23.12.1971. It is pertinent to note that thereafter nothing happened and the suit was filed only on 28.7.1973 and the petitioner had filed appearance on 12.10.1973. In the meantime it was only due to negotiations, and payment of Rs.1,500 which was received by the respondents, the petitioner did not attend the further proceedings in the suit. 8. In support of his contention that there was no need to file a petition under Sec.5 of the Limitation Act, learned senior counsel relied on Sec.17 of the Limitation Act and Sec.17 of the Contract Act. While Sec.17 of the Contract Act defines the expression “fraud.” Sec.17 of the Limitation Act restricts the period of limitation and the limitation would begin to run only after the applicant had discovered the fraud. He also relies on the following ruling in support of his various contentions. 9. In J.P.Mohan Rao v. A.J.Panchalaliah J.P.Mohan Rao v. A.J.Panchalaliah J.P.Mohan Rao v. A.J.Panchalaliah A.I.R. 1978 A.P. 345 Jeevan Reddy, J. as he then was, held that the failure on the part of the decree-holder to perform an undertaking amounted to fraud and the application by the judgment-debtor based on the allegation of fraud would be protected under Sec.17(1)(a) of the Limitation Act. 10. Reference is made to the observations in the judgment of a Division Bench of this Court in Athappa Chettiar v. Ramasethu (1994)1 MLJ. 612 , that in a suit for setting aside the sale in execution of the decree, if there is an allegation that the defendant had committed fraud, Sec.17 of the Limitation Act would apply. 11. The same view was expressed by a learned single Judge of this Court in S.Pechiyammal v. N.Gnanasundaram Nadar S.Pechiyammal v. N.Gnanasundaram Nadar S.Pechiyammal v. N.Gnanasundaram Nadar A.I.R. 1995 Mad. 372. 12. 11. The same view was expressed by a learned single Judge of this Court in S.Pechiyammal v. N.Gnanasundaram Nadar S.Pechiyammal v. N.Gnanasundaram Nadar S.Pechiyammal v. N.Gnanasundaram Nadar A.I.R. 1995 Mad. 372. 12. Reliance is placed on the observation that if a decree was obtained by fraud it can be summarily thrown out at any stage of the proceedings vide judgment of the Supreme Court in S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath A.I.R. 1994 S.C. 853. 13. Further reference is made to the judgment in Vidhyadhar v. Mankikrao Vidhyadhar v. Mankikrao Vidhyadhar v. Mankikrao A.I.R. 1999 S.C. 1441 in support of his contention that if a party does not enter into the witness box to state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him was not correct. This submission is made in the context of the present case namely, that in spite of fact that the petitioner had alleged fraud and given positive evidence contending that there was an agreement between himself and the respondent, the failure on the part of the respondent to have examined himself in evidence would result in throwing out his case. 14. Reference is made to the judgment of the Supreme Court in Malkiat Singh v. Joginder Singh A.I.R. 1998 S.C. 258 holding that when the suit proceeded ex parte on the counsel reporting no instructions and the defendants getting knowledge of the ex parte decree only when he approached his counsel, the defendants cannot be said to be careless on negligent and the application to set aside the decree within four days of their knowledge should be allowed. 15. In Tahil Ram v. Ramchand A.I.R. 1993 S.C. 1182 the Supreme Court held withdrawal of the vakalath by advocate and the client being absent and not aware of the date of hearing, the order of dismissal for default was liable to be set aside considering that there was no fault on the part of the litigant. 16. Learned counsel further points out that on the aspect of the payment of Rs.1,500 also there was no cross-examination of P.W.2 and hence, there was no justification for the Courts below to have disbelieved him. 17. 16. Learned counsel further points out that on the aspect of the payment of Rs.1,500 also there was no cross-examination of P.W.2 and hence, there was no justification for the Courts below to have disbelieved him. 17. Mr.T.R.Rajagopalan, Additional Advocate General for the respondents contends that there is absolutely no basis for the contention that there was any agreement between the parties, the landlord agreeing to sell the land or promise to settle the dispute resulting in the petitioner believing that the suit shall not be proceeded further. Learned counsel also refers to the contradiction between the oral evidence and the affidavit of P.W.2 and that therefore, his evidence did not deserve any acceptance. The crucial issue to be decided is as to whether the petition is sustainable in the absence of a petition under Sec.5 of the Limitation Act to condone the delay in praying for setting aside the ex parte decree. The attempt on the part of the petitioner to do so would depend entirely on proving to the Court that he had no knowledge of the ex parte decree. Such a claim is totally disproved by Ex.B-1 being service of notice on the petitioner in the execution proceedings. Therefore, the very basis of the claim as regards knowledge of the decree having been disproved beyond all doubts, the petition under O.9, Rule 13, C.P.C. was liable to be dismissed and rejected. Under Art.123 of the Limitation Act, it is the date of the decree which alone is relevant and not the date of the knowledge and even otherwise, in this case, knowledge of the decree was clearly established under Ex.B-1. The petitioner had also engaged a counsel and hence the date of the decree was the only relevant factor. Only in cases where summon is not served, the knowledge of the decree would be relevant. 18. Learned counsel for the respondent in this context refers to the judgment of the Supreme Court in Panna Lal v. Murari Lal A.I.R. 1967 S.C. 1384. Reliance is placed on the observation that the expression “knowledge of the decree” in Art.164 (old Act) means the knowledge of the particular decree which is sought to be set aside. When the summons were not duly served, limitation under Art.164 will not start running. Reliance is placed on the observation that the expression “knowledge of the decree” in Art.164 (old Act) means the knowledge of the particular decree which is sought to be set aside. When the summons were not duly served, limitation under Art.164 will not start running. It is further held that onus was on the defendant to show that the application was within time and that he had knowledge of the decree within 30 days of the application. If the defendant produces some other evidence to show that the application was within time, it was for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30 days before the date of the application. In the present case, considering that the petitioner had admitted the receipt of Ex.B-1 notice from the Court the burden of proof on the respondent was properly discharged and it was for the petitioner to show that he had no knowledge of the decree within 30 days of filing the petition to set aside ex parte decree. 19. Reference was also made to the judgment of Srinivasan, J. as he then was in K.Janarthan and another v. R.Thilak Kumar K.Janarthan and another v. R.Thilak Kumar K.Janarthan and another v. R.Thilak Kumar (1992)2 L.W. 505 holding that the tendency on the part of the litigants to treat ex parte decrees casually should be deprecated. 20. In reply, Mr.T.R. Mani contended that the petitioner hand been informed that suit would be withdrawn and the petitioner had sincerely believed it and had not taken any steps to prosecute the suit. This has not been denied by the respondents by letting in any evidence. As regards the acceptance of Rs.1,500 also, there was no oral evidence on the side of the respondents. With reference to the criticism of the so-called contradiction between the evidence of P.W.2 and his affidavit, learned senior counsel states that only the basic facts can be stated in the affidavit and the affidavit cannot be expected to contain minute details of all the facts, especially when the deponent himself was to be produced as a witness. 21. Learned senior counsel also relies on the judgment of a Division Bench of this Court in Rangaswamy Reddiar v. C.J.Ammal Rangaswamy Reddiar v. C.J.Ammal Rangaswamy Reddiar v. C.J.Ammal (1973)2 MLJ. 1 : A.I.R. 1974 Mad. 21. Learned senior counsel also relies on the judgment of a Division Bench of this Court in Rangaswamy Reddiar v. C.J.Ammal Rangaswamy Reddiar v. C.J.Ammal Rangaswamy Reddiar v. C.J.Ammal (1973)2 MLJ. 1 : A.I.R. 1974 Mad. 6 in support of his submission that a predecretal agreement not to execute the decree presupposes a decree which is valid and executable. Such an agreement does not vary the terms or affect its validity and the agreement not involving any fraud on the Court, can be pleaded as a bar of execution. 22. I have considered the Submissions of both sides. The main issue to be decided in this revision is as to whether the petition filed by the petitioner to set aside the ex parte decree which is admittedly belated from the date of the decree. is maintainable in the absence of a petition under Sec.5 of the Limitation Act. Though learned counsel for the respondents had submitted that for the purpose of limitation under Art.123 of the Limitation Act, the date of the decree is relevant and not the date of knowledge. Without going into the merits of the said conflicting claims, for the purpose of disposal of the present revision petition, it may be assumed that the date of knowledge would be relevant for deciding the starting point of limitation. It is relevant to note that in this context, Ex.B-1 which is the Court notice in E.P.No.140 of 1976 which had been served on the petitioner on 8.7.1976 itself and that the present petition under O.9, Rule 13, C.P.C. has been filed only in March, 1991, The attempt on the part of the petitioner to wriggle out of Ex.B-1 which is surprisingly now reported to be missing, is totally unsustainable and unacceptable. The fact that Ex.B-1 is now missing need not detain us from considering the fact of the service of Ex.B-1. On the petitioner considering that the receipt of the notice as well as the signature thereon has been admitted by the petitioner before the trial Court when he was confronted in the witness box with Ex.B-1. The manner in which the petitioner is now attempting the explain away Ex.B-1 is rather dismal and totally unbelievable. The petitioner's explanation is that it was an application for surveying and measuring the land. The manner in which the petitioner is now attempting the explain away Ex.B-1 is rather dismal and totally unbelievable. The petitioner's explanation is that it was an application for surveying and measuring the land. This explanation is offered in the re-examination, while in the cross examination he has clearly admitted as follows: 23. Therefore, the attempt on the part of the petitioner to give a different colour to Ex.B-1 in his re-examination discloses that he is not speaking the truth and that he had knowledge of the decree in the year 1976 itself. It is very hard to believe that he should have mistaken the Ex.B-1, to have something to do with his application to survey and measure his land. The Court notice is either sent by post or through staff of the Court and there cannot be any possibility of mistaking the nature of the document. It is therefore, clear that the petitioner had come to Court by alleging false and incorrect facts deliberately only because of his apprehension that it will not be possible to have the delay of nearly 15 years to be condoned. The trial Court which had the advantage of watching the demeanour of the witnesses especially that of P.W.1 had chosen to disbelieve his evidence and so also the appellate Court. Therefore, there is absolutely no justification for this Court to interfere with the said concurrent finding of fact. Therefore, when once the said finding had become conclusive and final and then there is no other alternative except to conclude that petition under O.9, Rule 13, C.P.C. cannot be sustained without a petition to condone the delay. The failure to file a petition is not due to any oversight or for any technical interpretation of the starting point of limitation, but due to an intentional false stand taken by the petitioner as regards his knowledge of the proceedings. The petitioner also did not condescend to file a petition for condonation of delay either before the appellate Court or even before this Court, in spite of objection. 24. All the other issues raised on behalf of the petitioner such as allegation of fraud and whether Sec.17 of the Limitation Act would apply are only secondary and consequently and do not arise for consideration as a result of holding that the petitioner had the knowledge of the decree in the year 1976 itself. 24. All the other issues raised on behalf of the petitioner such as allegation of fraud and whether Sec.17 of the Limitation Act would apply are only secondary and consequently and do not arise for consideration as a result of holding that the petitioner had the knowledge of the decree in the year 1976 itself. Even assuming that the said issue would arise for consideration, the allegation of fraud is based on the pleading that the petitioner did not pursue the proceedings only because of compromise talks and agreement between himself and the respondents, thereby respondents agreed to sell the property to him and had also received an advance of Rs.1,500 from him. The answer on the side of the respondents is that the cheque for a sum of Rs.1,500 was received from the son of the petitioner totally under different circumstances (as dealt with earlier) and not as advance and that he never agreed to sell the property. In this background though it is true that the respondent had not adduced any evidence, the initial burden of proving the fraud being on the petitioner, we have to see whether the initial burden has been satisfactorily discharged by him. 25. With reference to the alleged payment of Rs.1,500 towards advance, the only documentary evidence on the side of the petitioner is Ex.A-9 which is nothing but a letter from the Canara Bank to the petitioner intimating that the cheque dated 28.1.1974 sent to the Bank by the petitioner's son Chandran for a sum of Rs.1,500 had been presented for clearance and encashed and that payment to Damodharan (second respondent) was confirmed. Therefore, Ex.A-9 does not in any manner help the case of the petitioner to prove fraud. Apart from his interested testimony, the only evidence of P.W.2, a neighbouring land owner, is very artificial. No agreement for the sale as alleged has been produced by the petitioner. Though the petitioner claims further payments were made up to a total amount of Rs.6,900 such payments have not been substantiated by any oral or documentary evidence, it is also pertinent to note that the cheque is of the year 1974 whereas the notice in the execution proceedings have been served on the petitioner subsequently in the year 1976. Though the petitioner claims further payments were made up to a total amount of Rs.6,900 such payments have not been substantiated by any oral or documentary evidence, it is also pertinent to note that the cheque is of the year 1974 whereas the notice in the execution proceedings have been served on the petitioner subsequently in the year 1976. Therefore, Ex.A-9 cannot in any manner prove a pre-decretal agreement or even past decretal agreement whereby the respondents are alleged to have agreed to sell his property to the petitioner. 26. As regards the quality and nature of P.W.2's evidence, both the Courts have concurrently rejected his evidence. He was examined on commission and he has admitted in his cross-examination that he had not filed any medical certificate to avoid appearing before the Court. It is also clearly established and admitted by P.W.2 himself that he was inimically disposed towards the family of the respondents and there was also a litigation between himself and the petitioner's family. In fact, his evidence cuts at the root of the petitioner's case, considering that he knows that an execution petition was filed in the year 1976 itself and that he had instructed the petitioner to take appropriate steps to defend the same. If his evidence is to be accepted, the petitioner's claim that he was not aware of the execution proceedings till recently, has to be rejected on the basis of the evidence of P.W.2 alone, who is his own witness. Therefore, the Courts below have rightly disbelieved his evidence and I have no reason to disagree with the conclusions of the Courts below. It is very probably that P.W.2 is behind the present petition considering his enmity with the respondents. 27. Therefore, leaving aside P.W.2's evidence, there is no independent evidence to prove the agreement or fraud as alleged by the petitioner and hence, the submissions on the side of the petitioner as regards the absence of rebuttal evidence on the side of the respondents, do not arise for consideration. 28. 27. Therefore, leaving aside P.W.2's evidence, there is no independent evidence to prove the agreement or fraud as alleged by the petitioner and hence, the submissions on the side of the petitioner as regards the absence of rebuttal evidence on the side of the respondents, do not arise for consideration. 28. In the result, I do not find any ground to interfere with the findings rendered by the Courts below namely, that the petitioner was aware of the E.P. proceedings, in the year 1976 itself and hence I am inclined to hold that the petitioner ought to have filed a petition for condonation of delay and that the petitioner had not established fraud as alleged by him. 29. There are no merits in the above revision petition and the same is dismissed. No costs. Petition dismissed.