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2008 DIGILAW 641 (MAD)

Krishnamoorthy v. Dheivaneethi

2008-02-22

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- The order passed in I.A.No.2093 of 2007 in O.S.No.355 of 2003 on the file of the Principal District Munsif, Viruthachalam, is under challenge before this Court. The revision petitioner, who is the defendant in O.S.No.355 of 2003, had filed the said application under Section 5 of the Limitation Act to condone the delay of 970 days in preferring an application to set aside the exparte decree. 2. The reasoning stated in the affidavit to the application in I.A.No.2093 of 2007 is that the defendant / revision petitioner herein was not residing in the address furnished in the plaint and that there was no service of summons in the suit to him and only from the notice received by him in the execution proceedings he came to know about the exparte decree passed against him in O.S.No.355 of 2003 on 012. 2003 itself. The entire case records from the trial Court were called for and perused. The return summons in the suit in O.S.No.355 of 2003 will go to show that the summons have been served on the defendant on 110. 2003 itself. 3. The learned counsel for the revision petitioner during the course of his arguments would state that the signature in the served copy of the summons does not belong to the defendant, but it is a forged one. Even a comparison of the signature of the defendant contained in the served copy of the summons with that of the signature contained in Ex.A.1, a postal acknowledgment, will also go to show that both the signatures tally with each other. The revision petitioner has not taken any steps to refer the disputed signature with that of the admitted signature to an expert before the trial Court. Under such circumstances, the contention of the learned counsel appearing for the revision petitioner that the signature contained in the served copy of the summons does not belong to the defendant holds no water. 4. Relying on 2008(1) CTC 239 (Doss and another Vs. Vamanan and another), the learned counsel for the revision petitioner would contend that to establish that there was due service of summons on the defendant the process server was not examined by the Court. 4. Relying on 2008(1) CTC 239 (Doss and another Vs. Vamanan and another), the learned counsel for the revision petitioner would contend that to establish that there was due service of summons on the defendant the process server was not examined by the Court. At this point it is pertinent to note that the revision petitioner has not taken any steps before the trial Court to examined the process server, who had returned the served summons for the defendant to prove that there was no valid service of summons on the defendant. 5. The dictum in 2000(8) SCC 491 (Praveen Kumar and others Vs. Suresh Chand and others), relied on by the learned counsel for the revision petitioner, also is of no use to the revision petitioner because in the said case before the trial Court it was contended by the defendant therein that there was no proper service of summons in the suit. In support of the said contention, the petitioner therein had examined the process server to show that he had played fraud by making fake signatures of the appellant. The trial Court relying upon the opinion of the handwriting expert held that the process was not duly served on the appellant. But on appeal, the High Court held that the findings of the learned Trial Judge is erroneous forgetting for a moment while exercising the revisional powers, the High Court has no jurisdiction to interfere with the findings on the facts recorded by the trial Court. The relevant observation of the Honourable Apex Court in the said case runs as follows:- "Having heard learned counsel for the parties, we find that on the question whether there was service on the appellants or not, the High Court fell into error. When the trial Court after taking into consideration the evidence on the record including the opinion of the handwriting expert came to the conclusion that there was no service and allowed the application, then the High Court could not under its revisional power have interfered if the trial Court committed any jurisdiction error, or its decision would have resulted in any manifest injustice. The trial Court not having committed any such error the High Court should not have interfered with the finding recorded by it." But in the case on hand, the revision petitioner, as I stated earlier, has not taken any steps before the Trial Court for comparing the disputed signature in the served copy of the sommons with that of the admitted signature of the defendant. 6. The next limb of argument by the learned counsel appearing for the revision petitioner is that after constitution of District Munsif Court at Neyveli, the District Munsif at Viruthachalam has no power to entertain I.A.No.2093 of 2007 in O.S.No.355 of 2003. It is pertinent to note here that the said IA.No.2093 of 2007 in O.S.No.355 of 2003 was filed only by the revision petitioner herein. After chosen a wrong forum and after disposal of the said application by the learned District Munsif, Viruthachalam, only in the revision, the petitioner contends that the District Munsif at Viruthachalam has no jurisdiction to depose of I.A.No.2093 of 2007. But while I.A.No.2093 of 2007 in O.S.No.355 of 2003 was pending before the learned District Munsif, Viruthachalam, the petitioner has not raised any objection before the District Munsif, Viruthachalam that the District Munsif has no jurisdiction to dispose of I.A.No.2093 of 2007. He would have moved before the District Judge for transfer of I.A.No.2093 of 2007 in O.S.No.355 of 2003 to the Court having jurisdiction or even before the disposal of I.A.No.2093 of 2007 in O.S.No.355 of 2003, he would have approached this Court for necessary remedy. But keeping quite till the disposal of I.A.No.2093 of 2007 in O.S.No.355 of 2003 and after preferring CRP over the order passed in I.A.No.2093 of 2007, the revision petitioner canvases before this Court in CRP that the order passed by the District Munsif, Viruthachalam, which is illegal. 7. The learned counsel for the revision petitioner relying on 13 Mad 273 (Velayudam Vs. Arunachala), would contend that point of jurisdiction can be raised even in revision. The short facts of the said case is that in the second appeal an objection was taken that the Court of First Instance had no jurisdiction to hear and decide the suit, the value of the suit is being below Rs.2,500/-. The said point was not raised before either of the Courts below. The short facts of the said case is that in the second appeal an objection was taken that the Court of First Instance had no jurisdiction to hear and decide the suit, the value of the suit is being below Rs.2,500/-. The said point was not raised before either of the Courts below. While disposing of the said appeal a Division Bench of this Court has held as follows:- "This point was not raised in either of the Courts below, but we are of the opinion that an objection to the jurisdiction of the Court of First Instance may be taken for the first time in second appeal, inasmuch as an act done without jurisdiction is of no legal effect and must be set aside when the illegality is made apparent. But it is argued that, inasmuch as the appellant did not demur to the jurisdiction of the Lower Appellate Court, he must be held to have waived the right to raise the question of jurisdiction. Admittedly the Subordinate Judge had no jurisdiction to try the suit which shold have been filed in the Court of the District Munsif; but it is contended that the Judge was competent to hear and decide the appeal, and reference is made to the Privy Council case of Ledgard Vs. Bull ( 9 A 191). In that case it was distinctly held by the Privy Council that even an order transferring a case from one Court to another could not be validly made unless the suit was instituted in a Court of competent jurisdiction. An appeal could not be heard on the merits, unless the decree from which the appeal was preferred was passed by a Judge having jurisdiction over the matter in dispute. No doubt the District Judge was the appellate authority, whether the suit was heard and determined either by the subordinate Judge or District Munsif, but it must be remembered that the Appellate Court is only a Court of error and the trial by the Appellate Court cannot be accepted in place of a trial by the Court of First Instance. In the case of Ledgard Vs. In the case of Ledgard Vs. Bull (8 M 235) the Court to which by an irregular process the suit was transferred was competent to try the suit, and we cannot say that it is on all fours with the present, nor are we prepared to hold that this is a case to which the principle laid down by the Privy Council in that case can be extended." But as far as the case on hand is concerned, the grievance of the petitioner is that only the District Munsif, Neyveli, has got jurisdiction to hear and dispose of I.A.No.2093 of 2007. If it is so, the revision petitioner ought to have filed I.A.No.2093 of 2007 before the District Munsif, Neyveli, or, as I have already stated, the revision petitioner ought to have approached the District Court for transfer of I.A.No.2093 of 2007 to the file of the District Munsif, Neyveli or would have approached this Court for necessary orders of transfer of I.A.No.2093 of 2007 to the District Munsif, Neyveli. But having waited till the disposal of I.A.No.2093 of 2007 in O.S.No.355 of 2003 by the District Munsif, Viruthachalam, now it is too late for the revision petitioner to urge before this Court that the learned District Munsif, Viruthachalam, has no jurisdiction to dispose of I.A.No.2093 of 2007. It is the cardinal principal that each and every days delay should be explained properly by the petitioner. Absolutely there is no acceptable reasoning given in the affidavit to the application to condone the delay of 970 days in filing an application to set aside the exparte decree. Under such circumstances, I do not find any merit in the revision. The learned counsel for the revision petitioner, at this juncture, would contend that in this revision he is not challenging the findings of the learned District Munsif regarding the condonation of delay. But at para 7 of the memorandum of grounds, the revision petitioner has also challenged the findings of the Court below in respect of condonation of delay in filing the application to set aside the exparte decree on merits. 8. In fine, the Civil Revision Petition is dismissed before admission. No costs. Connected Miscellaneous Petition is closed.