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2005 DIGILAW 485 (MAD)

M. Inbamani v. Mrs. Karuppayi Ammal & Others

2005-03-21

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Sec.115 C.P.C. Against the Order of Principal District Munsif, Dindigul dated 20.08.2001 in I.A.No.136 of 2001 in O.S.No.381 of 1999, as stated therein.) This Civil Revision Petition is directed against the Order of Principal District Munsif, Dindigul dated 20.08.2001 in I.A.No.136 of 2001 in O.S.No.381 of 1999 allowing the Application filed under Sec.5 of the Limitation Act and condoning the delay of 141 days in filing the Petition to set aside the exparte decree on condition of payment of Rs.750/-. The Plaintiff is the Revision Petitioner. 2. The Suit Property relates to the Property (said to be the Trust Property) in T.S.No.170/8, 171/1,2 Thadikombu Road, Kurambapatti Village, Dindigul Taluk. Case of the Revision Petitioner / Plaintiff is that as per the Family Arrangement, the Suit Property and other Properties are Trust Property of Narayanasamy Pillai. Further case of the Revision Petitioner / Plaintiff is that in a Family Arrangement dated 10.09.1984, the Plaintiff is entitled to the Suit Properties. Revision Petitioner / Plaintiff's Brother and his Mother have no right in the Suit Properties. But, the Defendant late Arjuna Thevar claims to have purchased the Suit Property from the said Manoharan by the Sale Deed dated 22.02.1993, which is binding on the Revision Petitioner / Plaintiff nor on the Trust. The Defendant - Arjuna Thevar is bound to deliver vacant possession of the Suit Property and is also liable to pay the damages for use and occupation. Hence, the Suit for recovery of possession and for damages for use and occupation. 3. The Defendant – Arjuna Thevar entered appearance in the Suit. For non-filing of the Written Statement, he was set exparte and exparte Decree in O.S.No.381 of 1999 was passed on 04.07.2000. In the meantime, in September 2000, the Defendant – Arjuna Thevar died. To execute the exparte Decree, E.P.No.529 of 2000 was filed in November – December 2000. The Execution Petition was filed against Defendants 2 to 5, who are the Legal Heirs of Deceased-Arjuna Thevar. 4. I.A.No.136 of 2001:- After receipt of the Notice in the Execution Petition, the Defendants have filed the Petition in I.A.No.136 of 2001 under Sec.5 of the Limitation Act to condone the delay of 141 days in filing the Application to set aside the exparte decree. 4. I.A.No.136 of 2001:- After receipt of the Notice in the Execution Petition, the Defendants have filed the Petition in I.A.No.136 of 2001 under Sec.5 of the Limitation Act to condone the delay of 141 days in filing the Application to set aside the exparte decree. According to the Respondents / Defendants, Arjuna Thevar had fallen from Two Wheeler in June 2000 and met with an Accident and that he was hospitalized. He died in September 2000. Alleging that the Defendants 2 to 5 had no knowledge about the exparte decree and stating that they came to know about the same only after receipt of the Notice in the Execution Petition, they have prayed to condone the delay of 141 days in filing the Application to set aside the exparte decree. Hence, this Application under Sec.5 of the Limitation Act. 5. To substantiate the averments in the Petition, the Second Defendant-Karuppayi Ammal-Wife of Arjuna Thevar has examined herself as P.W.1. P.W.2-Dr.Sokkaiyan, who is running a Clinic in Dindigul Town was examined as P.W.2. In her Evidence, P.W.1 has stated that her Husband – Arjuna Thevar had met with an accident and was hospitalized and died in September 2000. P.W.2-Dr.Sokkaiyan has stated that Arjuna Thevar was admitted in his Hospital on 21.06.2000 and was taking treatment for Diabetics and other complaints. 6. On the evidence adduced by the Parties, learned District Munsif found that the reason for the delay has been properly explained. Learned District Munsif found that after death of Arjuna Thevar, the Respondents / Legal Heirs had taken time to file the Written Statement and Petition to set aside the exparte decree. In that view of the matter, the Trial Court held that the reason for delay has been properly explained and the learned District Munsif allowed the Application on payment of Costs of Rs.750/-. 7. Aggrieved over the order of allowing the Application, the Revision Petitioner / Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner / Plaintiff has submitted that in a Suit for recovery of possession and arrears of rent and for damages for use and occupation, the Defendant – Arjuna Thevar and his Legal Heirs ought to have been more vigilant in defending the case. Assailing the Impugned Order, learned counsel for the Revision Petitioner / Plaintiff has submitted that in a Suit for recovery of possession and arrears of rent and for damages for use and occupation, the Defendant – Arjuna Thevar and his Legal Heirs ought to have been more vigilant in defending the case. Contending that the version of P.W.1 / Second Defendant - Karuppayi Ammal and P.W.2-Dr.Sokkaiyan is contradictory, learned counsel has further submitted that the contradiction throws doubt on the sickness of Arjuna Thevar. Hence, it is contended that non-filing of the Written Statement by Arjuna Thevar and his non-appearance on 04.07.2000 have not been properly explained and that the order of allowing the Petition filed under Sec.5 of the Limitation Act cannot be sustained. 8. Countering the arguments of the Revision Petitioner, learned counsel for the Respondents has submitted that the Trial Court has rightly taken note of the death of Arjuna Thevar in September 2000 and the difficulties of the Defendants 2 to 5 in knowing about the Suit and exparte decree. Placing reliance upon the decision reported in N.BALAKRISHNAN ..VS.. M.KRISHNAMURTHY (1998 (II) C.T.C. 533) learned counsel has submitted that when the Trial Court has judiciously exercised the discretion in condoning the delay, unless there is perversity, the revisional Court cannot interfere. Drawing the attention of the Court to the averments in the Written Statement, learned counsel for the Respondents has further submitted that when the Defendants claimed to have purchased the Suit Property, an opportunity is to be given to them to contest the Suit, which has been filed for recovery of possession. 9. In condoning the delay of 141 days in filing the Application and allowing the Application filed under Sec.5 of the Limitation Act, had there been improper exercise of discretion warranting interference is the only point that arises for consideration in this Civil Revision Petition. 10. The Suit in O.S.No.381 of 1999 is filed for i. recovery of possession; ii.arrears of rent of Rs.10,375/-; iii.future damages for use and occupation. Certain dates are relavant to be noted:- Suit filed in .....June 1999/25.06.1999 Date of Exparte Decree .....04.07.2000 E.P.No.529/2000 filed .....November – December 2000 Death of Arjuna Thevar .....September 2000 Application in I.A.No.136 of 2001 filed on .....08.03.2001 Arjuna Thevar entered appearance in the Suit. Certain dates are relavant to be noted:- Suit filed in .....June 1999/25.06.1999 Date of Exparte Decree .....04.07.2000 E.P.No.529/2000 filed .....November – December 2000 Death of Arjuna Thevar .....September 2000 Application in I.A.No.136 of 2001 filed on .....08.03.2001 Arjuna Thevar entered appearance in the Suit. In the Affidavit filed in I.A.No.136 of 2001, it is clearly averred that Arjuna Thevar had met with an Accident (falling from Two Wheeler) and was hospitalised and hence, he could not file the Written Statement and contest the Suit. For his non-appearance and for not filing of the Written Statement, Arjuna Thevar was set exparte and Suit was decreed exparte on 04.07.2000. Arjuna Thevar died in September 2000. Since the family must have been mourning the death of Arjuna Thevar, in all probability, the Second Defendant – Karuppayi Ammal would not have known about the Suit in O.S.No.381 of 1999 nor would have contacted the counsel to give proper instructions regarding the Suit. 11. For executing the exparte decree, Revision Petitioner / Plaintiff has filed E.P.No.529 of 2000. In her evidence, P.W.1-Karuppayi Ammal has clearly stated that only on receipt of the Notice in Execution Proceedings, she came to know about the Suit and the exparte decree and thereafter contacted her Counsel – Ayyasamy, who has handed over the case bundle to her and thereafter, she contacted another counsel and taken steps for filing the Petition along with the Written Statement. The reasons stated by P.W.1 is quite convincing and satisfactory. 12. In her evidence, P.W.1 has stated that her Husband has met with an accident falling from a bike and was taking treatment with P.W.2-Dr.Sokkaiyan. In his evidence, P.W.2-Dr.Sokkaiyan has stated that he treated late Arjuna Thevar from 21.06.2000 and that he was suffering from Diabetics and other disease. Drawing the attention of the Court to the evidence of P.Ws.1 and 2, it is submitted that the evidence of P.Ws.1 and 2 and the Medical Evidence is contradictory throwing doubt on the sickness and treatment of Late Arjuna Thevar. By careful consideration of evidence of P.Ws.1 and 2, there seems to be no variation in their version. Arjuna Thevar was admitted in the Hospital after he met with an accident. Consequent to the accident, his other disease might have been complicated, for which he was being treated by P.W.2-Dr.Sokkaiyan. By careful consideration of evidence of P.Ws.1 and 2, there seems to be no variation in their version. Arjuna Thevar was admitted in the Hospital after he met with an accident. Consequent to the accident, his other disease might have been complicated, for which he was being treated by P.W.2-Dr.Sokkaiyan. But, the fact remains that Arjuna Thevar was sick and hospitalised and could not put forth his defence in O.S.No.381 of 1999. Learned District Munsif has properly exercised the discretion in condoning the delay of 141 days in filing the Petition to set aside the exparte decree. As held in the decision reported in N.BALAKRISHNAN ..VS.. M.KRISHNAMURTHY (1998 (II) C.T.C. 533) when the Trial Court has accepted the explanation for delay and condoned such delay, normally Superior Court should not disturb such findings much less in revisional jurisdiction; unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. In this case, there is nothing to suggest that there is improper or arbitrary exercise of discretion. The delay occasioned due to the sickness and death of Arjuna Thevar. There is no laches or negligence on the part of the Respondents. 13. Yet another reason is to be pointed out for not interfering with the Impugned Order. Stating that the Suit Property is the Trust Property and that the Plaintiff is entitled to the same by virtue of Family Arrangement dated 10.09.1984, the Plaintiff has filed the Suit for recovery of possession and arrears of rent and also future damages for use and occupation. The Defendants claimed to have purchased the suit property from the Plaintiff's Brother – Manoharan and Plaintiff's Mother by virtue of the Sale Deed for valid consideration. The rival contentions between the family members and the right of the Defendants are to be determined in the light of the defence set forth by the Defendants. Sufficient opportunity is to be afforded to the Defendants to put forth their defence. It is also to be noted that yet another suit filed has been pending in O.S.No.1452 of 1993. If the exparte decree in O.S.No.389 of 1991 is not set aside the Defendants would be subjected to great hardship. In that view of the matter, the order of the District Munsif, Dindigul in condoning the delay of 141 days in filing the Petition to set aside the exparte decree is to be confirmed. If the exparte decree in O.S.No.389 of 1991 is not set aside the Defendants would be subjected to great hardship. In that view of the matter, the order of the District Munsif, Dindigul in condoning the delay of 141 days in filing the Petition to set aside the exparte decree is to be confirmed. This Civil Revision Petition has no merits and is bound to fail. 14. Therefore, the order of Principal District Munsif, Dindigul dated 20.08.2001 in I.A.No.136 of 2001 in O.S.No.381 of 1999 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs.