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2005 DIGILAW 1213 (MAD)

T. N. Anantha Rao & Another v. N. Bhanumoorthy

2005-07-29

R.BANUMATHI

body2005
Judgment :- This Civil Revision Petition is directed against the order of VI Assistant Judge, City Civil Court, Chennai dated 26.09.2000 in I.A.No.11399 of 1997 in O.S.No.12547 of 1996, allowing the Application filed under Order IX Rule 9 r/w Section 151 C.P.C and thereby restoring the Suit in O.S.No.12547 of 1996 on file. Defendants 1 and 2 are the Revision Petitioners. 2. O.S.No.3133 of 1986:- The Suit was filed by the Revision Petitioners / Defendants against the Plaintiff and two others for Possession and other reliefs. The said Suit was decreed by Judgment and Decree dated 21.07.1995. Two other Defendants in O.S.No.3133 of 1986 are the Plaintiff’s Younger Brother by name N.Phaneerudrudu and the Plaintiff’s Brother-in-law. The Judgment and Decree in O.S.No.3133 of 1986 was confirmed in A.S.No.230 of 1995. The concurrent findings of the Courts below were confirmed in S.A.No.605 of 1996. The said Second Appeal was dismissed even in the admission stage. 3. O.S.No.12547 of 1996:- The Plaintiff has filed the Suit for declaring that the Judgment in O.S.No.3133 of 1986 confirmed in A.S.No.230 of 1995 and S.A.No.605 of 1996 has null and void, having been obtained by practising fraud of the Court and that it is collusive and also for Permanent Injunction restraining the Defendants, their Men and Agents from in any way disturbing peaceful possession of the Plaintiff in respect of the Suit Property. 4. E.P.No.1274 of 1996 was filed for executing the Decree in O.S.No.3133 of 1986. On 23.06.1997, the Suit in O.S.No.12547 of 1996 and E.P.No.1274 of 1996 were called in the morning. The Plaintiff was present and his counsel was also present. The Plaintiff was ready for getting along with the matter, hence the matter was passed over. In the afternoon of 23.06.1997, since no progress was made in the Trial, the Suit in O.S.No. 12547 of 1996 was dismissed for default. 5. I.A.No.11399 of 1997:- The Plaintiff has filed this Application under Order IX Rule 9 C.P.C. to restore the Suit in O.S.No.12547 of 1996. According to the Plaintiff, he was present in the morning at 11.30 a.m. when the matter was taken up for hearing. The case was passed over after lunch. According to the Plaintiff, he was getting along ready with the case and that he has also filed a Memo to send for the records by permitting him to deposit the amount required for the same. The case was passed over after lunch. According to the Plaintiff, he was getting along ready with the case and that he has also filed a Memo to send for the records by permitting him to deposit the amount required for the same. It is further alleged that the Plaintiff had already filed a Memo in the Office bearing S.R.No. 23130 of 1997. According to him, without reference to the Memo and his readiness to get along with the matter, the Suit was dismissed for default at 03.00 p.m. (on 23.06.1997) stating that his Counsel was not present. According to the Plaintiff, the Junior Counsel was present in the forenoon Session and before she arrived in the afternoon, the Suit has been dismissed for default ordering delivery in E.P.No.1274 of 1996 and dismissing his Petition in E.A.No.4765 of 1996 filed under Section 47 C.P.C. Stating that he has fair chances of success in the Suit and that an opportunity is to be given, the Plaintiff has filed this Application to restore the Suit in O.S.No.12547 of 1996 which has been dismissed for default on 23.06.1997. 6. Resisting the Application onbehalf of the Defendants, elaborate Counter Affidavit was filed stating that between 02.01.1997 and 23.06.1997, the case was adjourned atleast for 21 times for Trial. It is stated that inspite of direction by the Principal Judge, City Civil Court to dispose of the Suit and the Execution Petition, the Plaintiff was delaying the Trial Proceedings. Transfer Petition filed by the Plaintiff to transfer the Suit and the Execution Petition to some other Court was also dismissed. In the Counter Statement, it is alleged that the Plaintiff’s Counsel was not present in the Court in the morning session and in the afternoon of 23.06.1997, neither the Plaintiff nor his counsel appeared before the Court. It is further stated that the Court having waited for a long time, dismissed the Suit ordering delivery in E.P.No.1274 of 1996. Stating that the Petition has been filed for delaying the trial proceedings, the Defendants have prayed for dismissal of the Application. 7. Upon consideration of the averments in the Affidavit and the Counter Statement, the Trial Court allowed the Application. Though the learned Judge has referred to the conduct of the Plaintiff in not getting along with the matter, finding that an opportunity is to be given to the Plaintiff, the Trial Court allowed the Application. 7. Upon consideration of the averments in the Affidavit and the Counter Statement, the Trial Court allowed the Application. Though the learned Judge has referred to the conduct of the Plaintiff in not getting along with the matter, finding that an opportunity is to be given to the Plaintiff, the Trial Court allowed the Application. The lower Court was of the view that if the Suit is not restored, much hardship would be caused to the Plaintiff. Mainly on the ground that an opportunity is to be given to the Plaintiff, the Trial Court has allowed the Application filed under Order IX Rule 9 C.P.C restoring the Suit on file. 8. Aggrieved over the restoration of the Suit, the Defendants have preferred this Civil Revision Petition. Drawing the attention of the Court to the number of hearings, learned counsel for the Revision Petitioners has submitted that the vexatious Suit has been filed challenging the concurrent findings of the Courts confirmed by the High Court in S.A.No.605 of 1996. Contending that nearly after 21 hearings between 02.01.1997 and 23.06.1997, learned counsel for the Petitioners has submitted that all along the Plaintiff was not ready to get along with the matter. Assailing the Impugned Order, learned counsel for the Revision Petitioners submitted that by directing payment of meagre amount of Rs.1000/- as cost, the lower Court erred in driving the Defendants to several rounds of litigation. The Impugned Order is opposed mainly on the ground that no indulgence could be shown to the Plaintiff merely saying that "in the interest of justice the Suit has to be restored.” 9. Notice sent to the Respondent through Court as well as Privately by the learned counsel for the Revision Petitioners returned with an endorsement "No such address”. Hence, substituted service by Paper Publication was ordered. As directed by the Court, Paper Publication was effected for the Respondent and service held sufficient. The contentious points urged onbehalf of the Respondent in the Court below had been taken into consideration for disposal of this Revision Petition. 10. Hence, substituted service by Paper Publication was ordered. As directed by the Court, Paper Publication was effected for the Respondent and service held sufficient. The contentious points urged onbehalf of the Respondent in the Court below had been taken into consideration for disposal of this Revision Petition. 10. Upon consideration of the contentions of the Revision Petitioners, Impunged Order and other materials available on record, the following points arise for consideration in this Civil Revision Petition :- i. in the facts and circumstances of the case, whether the lower Court was justified in allowing the Application under Order IX Rule 9 C.P.C and thereby restoring the Suit in O.S.No.12547 of 1996? ii.Whether the Impugned Order suffers from material irregularity warranting interference? 11. In order that order of dismissal of the Suits to be set aside, sufficient cause for the non-appearance of the Plaintiff must be shown to the satisfaction of the Court. Where the Court exercises the discretion in ordering the restoration of the Suit, the High Court would not interfere unless it is shown to be perverse or erroneous. E.P.No.1274 of 1996 and O.S.No. 3133 of 1986 were posted for further examination of Plaintiff’s Chief Examination on 23.06.1997. According to the Plaintiff, in the forenoon Session, he and his counsel were present and submitted ready for the Trial. According to the Plaintiff, he has also presented a Memo in S.R.No.23130 of 1997 to send for the record and seeking permission of the Court to deposit the amount required to send for the records. According to the Plaintiff / Respondent, his Counsel Ms.Parameswari was present in the forenoon Session; but by that time, she arrived in the afternoon Session, the Suit was dismissed for default at 03.00 p.m stating that his Counsel was not present. No evidence has been adduced from the counsel Ms.Parameswari by way of an Affidavit showing that she was present in the morning and that in the afternoon before ever she could reach the Court, the Suit had been taken up for hearing and dismissed for default. 12. Regarding the absence of the counsel, the question whether the counsel actually wanted to be in the Court is the point to be considered. 12. Regarding the absence of the counsel, the question whether the counsel actually wanted to be in the Court is the point to be considered. The said counsel Parameswari has not filed any affidavit showing that she was present in the morning and that in the afternoon before ever she could reach the Court, the Suit was taken up and dismissed. No sufficient cause has been shown by the Plaintiff for not getting along with the matter. While considering "sufficient cause”, the conduct of the parties and the diligence shown by them is to be kept in view. From the Counter Statement filed by the Revision Petitioners, it is seen that between 02.01.1997 and 23.06.1997, the case was adjourned atleast 21 times (date of hearings elaborated in the Counter Statement). In February 1997, the Suit became ripe for Trial. There was direction by the Principal Judge, City Civil Court, Chennai that the Suit and Execution Petition should be jointly tried and disposed of by 15.03.1997. On 03.02.1997, when the Suit was posted for Trial finally, the Plaintiff was never ready for Trial and sought for adjournment. Thereafter, the Plaintiff has filed Transfer O.P.Nos.187 and 188 of 1997 to transfer the Suit and E.P.No.1274 of 1996 to some other Court. The Transfer Petitions were dismissed by the Principal Judge, City Civil Court, Chennai. Thereafter, on 15.04.1997, the Suit was posted for Trial as a last chance. Even on that day, the Suit was adjourned only at the request of the Plaintiff. Again on 10.06.1997, the Suit was posted for Trial as a last chance and only thereafter, the Suit has been adjourned to 23.06.1997. By a reading of the Counter Statement, it is made clear that inspite of the direction from the Principal Judge, City Civil Court, Chennai to dispose of the Suit by 15.03.1997, the Plaintiff was not ready to get along with the Trial. When the Principal Judge, City Civil Court, Chennai had given direction to dispose of the Suit by fixing the time frame, the Plaintiff ought to have been more vigilant in getting along with the matter. The reasons stated for not getting along with the matter on 23.06.1997 is not satisfactory. 13. After all what is the claim of the Plaintiff? When the Principal Judge, City Civil Court, Chennai had given direction to dispose of the Suit by fixing the time frame, the Plaintiff ought to have been more vigilant in getting along with the matter. The reasons stated for not getting along with the matter on 23.06.1997 is not satisfactory. 13. After all what is the claim of the Plaintiff? The Suit has been filed for declaring the Judgment and Decree in O.S.No.3133 of 1996 of XV Assistant Judge, City Civil Court, Chennai confirmed in A.S.No.230 of 1995 dated 22.02.1996 and again confirmed in S.A.No.605 of 1996 by this Court dated 19.04.1996 as null and void having been obtained practicing fraud on Court and collusive. The concurrent findings of the Court, confirmed in S.A.No.605 of 1996 is assailed as having been obtained on fraud and collusion. The Suit in O.S.No.12547 of 1996 is nothing but a relitigation, which prima facie has no basis. In the decision reported in K.K.SWAMINATHAN ..VS.. SRINIVASAGAM ( 2004 (1) L.W. 250 ), in a case of similar nature, exercising the power under Article 227 of the Constitution of India, this Court has ordered striking off the Plaint, which has been filed to declare the Judgment and Decree confirmed in the Second Appeal by the High Court as null and void on the ground that it had been obtained by fraud. While so, the Trial Court was not right in saying that unless the suit is restored the Plaintiff could be subjected to hardship and inconvenience. The claim being unfounded and baseless cannot be ordered to be restored. 14. Yet another aspect is also relevant to be noted. In E.P.No.1274 of 1996, delivery has been ordered and delivery has been effected on 25.06.1997. The same has been recorded in E.P.No.1274 of 1996. When pursuant to the Decree in O.S.No.3133 of 1986, delivery has been effected, nothing survives for adjudication in O.S.No.12547 of 1996. 15. Learned VI Assistant Judge, City Civil Court, Chennai has not considered the nature of the Suit nor the conduct of the parties nor the absence of materials showing due diligence in setting aside the order of dismissal of Suit. There is no proper exercise of discretion. The impugned order cannot be sustained and is to be set aside. 16. 15. Learned VI Assistant Judge, City Civil Court, Chennai has not considered the nature of the Suit nor the conduct of the parties nor the absence of materials showing due diligence in setting aside the order of dismissal of Suit. There is no proper exercise of discretion. The impugned order cannot be sustained and is to be set aside. 16. For the foregoing reasons, the order dated 26.09.2000 of the VI Assistant Judge, City Civil Court, Chennai in I.A.No.11399 of 1997 in O.S.No.12547 of 1996 is set aside and this Civil Revision Petition is allowed. The dismissal of the Suit in O.S.No.12547 of 1996 holds good. There is no order as to costs. Consequently, the connected C.M.P.No.15514 of 2000 is closed.