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2008 DIGILAW 4522 (MAD)

R. Kuppammal v. Rajagopal Naicker & Another

2008-12-04

M.VENUGOPAL

body2008
Judgment : 1. The revision petitioner/respondent/Plaintiff has filed this present civil revision petition as against the order dated 7. 2008 in C.M.A.No.4 of 2007 passed by the learned Subordinate Judge, Kancheepuram in allowing the appeal and resultantly setting aside the dismissal order passed in I.A.No.1099 of 2005 in O.S.No.774 of 1999 by the learned Additional District Munsif, Kancheepuram filed by the respondents/appellants/defendants 1 and 2 under Section 5 of the Limitation Act to condone the delay of 272 days in filing an petition to set aside the exparte decree. 2. The trial Court, while passing orders in I.A.NO.1099 of 2005 in O.S.No.774 of 1999, has inter alia opined that the delay has not been properly explained by the respondents/appellants/defendants 1 and 2 for not having preferred the petition to set aside the exparte decree in time and that the respondents have not exercised due care and diligence in regard to the conduct of the main case and the execution petition and resultantly dismissed the application. 3. The learned first appellate Authority viz., Subordinate Judge, Kancheepuram has allowed CMA No.4 of 2007 filed by the respondents/defendants 1 and 2 on 7. 2008 inter alia observing that Ex P1 and Ex. P2 issued by one Dr.Anbalagan in the year 2005 which is clear from the phone number printed in the letter head and the trial Court has rightly observed the above factor that Ex P1 and Ex P2 were created only for the purpose of the case etc., but has taken the view that the trial Court should give reasonable opportunity to the both parties and in that view of the matter has set aside the order passed by the trial Court in I.A.No.1099 of 2005. 4. The learned counsel for the revision petitioner urges before this Court that the order passed by the first appellate authority in CMA NO.4 of 2007 is not maintainable in law or on facts and that the first appellate authority has not appreciated the fact that in the main case in O.S.No.774 of 1999, a decree has been passed on 16. The learned counsel for the revision petitioner urges before this Court that the order passed by the first appellate authority in CMA NO.4 of 2007 is not maintainable in law or on facts and that the first appellate authority has not appreciated the fact that in the main case in O.S.No.774 of 1999, a decree has been passed on 16. 2002 by the trial Court and that E.P.No.59 of 2003 has been terminated and that the sale deed has been executed by the trial Court viz., the Principal District Munsif, Kancheepuram in favour of the revision petitioner/plaintiff and the respondents 1 and 2 have not made out a case for allowing the appeal but the first appellate authority has not appreciated the facts of the matter in issue in proper perspective and this resulted in miscarriage of justice and therefore prays for allowing the civil revision petition in the interest of justice. 5. It appears that the revision petitioner/plaintiff has filed a suit for specific performance against the respondents 1 and 2/defendants 1 and 2 and two other defendants and the same has been decreed exparte on 16. 2002 in favour of the revision petitioner/plaintiff and that the revision petitioner has filed the execution petition in E.P.No.59 of 2003 before the trial Court viz., Principal District Munsif, Kancheepuram for execution of the sale deed dated 3. 2005 and that the said execution petition has been allowed on 12. 2003 when the respondents herein have failed to file their counter and later I.A.Nos. 161 of 2004 to 163 of 2004 for condoning the delay of 22 days to set aside the exparte order of execution petition and to stay the execution has been filed and the said applications were dismissed by the trial Court on 7. 2005 and on 10. 2005, the sale deed has been executed by the learned Principal District Munsif, Kancheepuram in favour of the revision petitioner/plaintiff and further that the respondents 1 and 2/defendants 1 and 2 have projected I.A.No.1099 of 2005 praying to condone the delay of 272 days in filing an application to set aside the exparte decree passed on 16. 2002. .6. 2005, the sale deed has been executed by the learned Principal District Munsif, Kancheepuram in favour of the revision petitioner/plaintiff and further that the respondents 1 and 2/defendants 1 and 2 have projected I.A.No.1099 of 2005 praying to condone the delay of 272 days in filing an application to set aside the exparte decree passed on 16. 2002. .6. The trial Court, while dismissing I.A.No.1099 of 2005 has opined in categorical terms that the respondents have not properly explained the delay for not having filed the applications to set aside the exparte decree in time etc., In fact, the trial Court has specifically observed in the course of its order in I.A.No.1099 of 2005 that the telephone connection would not have been given by the BSNL etc and further that there is no explanation on behalf of the respondents 1 and 2 as to why they have not filed an application to set aside the exparte decree immediately, after the recovery of the second respondent and in that view of the matter the contention that the second respondent remains ill for an year, has not been substantiated by the documentary evidence etc and that the delay of 272 days has not been properly explained by the respondents. 7. Suffice it to point out by this Court that the trial Court while dismissing I.A.No.1099 of 2005 has dealt with the matter in quantitative and qualitative manner giving necessary details and discussing the same in threadbare. However, the first appellate authority has set aside the order of the trial Court passed in I.A.No.1099 of 2005 and resultantly allowed the appeal filed by the respondents 1 and 2 herein. 8. In this connection, it is not out of place to point out that the first appellate authority in the course of its order in C.M.A.No.4 of 2007 at paragraph 7 has clearly observed that trial Court has observed the above fact that Ex P1 and Ex P2 were created only for the purpose of the case and that the alleged Doctor was not examined etc., However, the first appellate authority has come to the conclusion to the effect that if the chances are denied by the trial Court, the merits of the case will be ended in vain. The trial Court should give reasonable opportunity of both the parties and considering the facts and circumstances of the case, this Court is of the view that the order and decretal order of the trial Court has to be set aside and resultantly the same is allowed. 9. Admittedly, the trial Court while dismissing I.A.No.1099 of 2005 has exercised its judicial discretion and resultantly dismissed the I.A.No.1099 of 2005. But the first appellate Authority have come to the conclusion that Exs P1 and P2 were created for the purpose of the case and has held that an opportunity must be given and consequently, allowed the appeal in that perspective which in the considered opinion of this Court is not a correct view in the eye of law. .10. As far as respondents 1 and 2 are concerned, this Court is of the considered view that they have not pursue the matter diligently and the averments made in the affidavit filed in I.A.No.1099 of 2005 suffers from lack of bonafide. Generally, speaking when a Court of law deals with an application filed under Section 5 of the Limitation Act , then it has to borne in mind substantial justice to be delivered to the parties over riding the technicalities. Equally, the Court is to take note of the fact that the length of delay is not a material factor. If the application is allowed by a Court of law, highest thing that can happen is that the merit of the matter can be gone into by the Court. But even for that, the respondents 1 and 2/defendants 1 and 2 will have to make out a case. If the application is allowed by a Court of law, highest thing that can happen is that the merit of the matter can be gone into by the Court. But even for that, the respondents 1 and 2/defendants 1 and 2 will have to make out a case. As already mentioned supra since the respondents have not diligently prosecuted the matter and since the trial Court has given a categorical finding that their applications are not to be allowed, this Court is of the considered view that when the E.P.No.59 of 2003 has been terminated, it is not proper for the first appellate authority to set aside the well merited order of the trial Court passed in I.A.No.1099 of 2005 and further this Court also opines that the first appellate authority after having come to the conclusion that Ex P1 and Ex P2 have been created for the purpose of the case by the respondents 1 and 2/defendants 1 and 2, and also as rightly held by the trial Court then the fair and prudent course for the first appellate authority is only to dismiss the civil miscellaneous appeal and since that has not been done by the first appellate authority, this Court on an over all assessment of facts and circumstances of the case , allows the civil revision petition in the interest of justice and thereby setting aside the order of the first appellate authority passed in C.M.A.No.4 of 2007 to promote substantial cause of justice. 11. In the result, this revision petition is allowed. The order passed by the first appellate authority in C.M.A.No.4 of 2007 is set aside for the reasons assigned by this Court in this revision. There shall be no order as to costs. Consequently, connected M.P.No.1 of 2008 is closed.