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Madras High Court · body

2009 DIGILAW 2523 (MAD)

P. N. Sampath v. M. R. Srinivasan & Another

2009-07-21

M.VENUGOPAL

body2009
Judgment :- The revision petitioner/1st defendant has filed this Civil Revision Petition as against the order dated 19.02.2008 passed in I.A.No.198 of 2007 in O.S. No. 454 of 2004 on the file of the I Additional District Munsif, Salem in allowing the application under Section 5 of the Limitation Act with a condition that the revision petitioner/1st defendant shall deposit the decree amount of Rs.75,900/-before the trial Court on or before 19.03.2008 failing which the application will stand dismissed and the matter has been directed to be called on 20.03.2008. .2. The trial Court in its order in I.A. No. 198 of 2007 dated 19.02.2008 has among other things observed that "this court is inclined to allow this petition in order to avoid the multiplicity of proceedings in the interest of justice to give one another chance to the petitioner to contest the case on merits. However, as already stated the petitioner has not stated any valid reason for the delay and the respondent/plaintiff need not be a sufferer for the carelessness of the petitioner and hence allowed the application subject to the condition that the revision petitioner/1st defendant shall deposit the decree amount of Rs.75,900/- into the Court on or before 19.03.2008, failing which the application stands dismissed, etc." 3. The learned counsel for the revision petitioner/1st defendant urges before this court that the conditional order passed by the trial Court in I.A.No.198 of 2007 directing the revision petitioner/1st defendant to deposit the decree amount of Rs.75,900/-into the Court on or before 19.03.2008 failing which the application will stand dismissed, etc., is not a valid and proper one, since such an order cannot be passed by the trial Court while dealing with the application under Section 5 of the Limitation Act and the trial Court has not taken note of the fact that the revision petitioner/1st defendant has a very good case on merits when he has denied the very execution of the promissory note itself and therefore prays for allowing the revision petition in the interest of justice. 4. 4. Per contra, the learned counsel for the 1st respondent contends that the trial Court while passing a conditional order in I.A.No.198 of 2007 has clearly opined that the revision petitioner has not shown any valid reason for the delay that has occurred in Section 5 application and that the respondent/ plaintiff need not be a sufferer for the carelessness of the revision petitioner and as a matter of fact, the trial Court has passed only a conditional order directing the revision petitioner/1st defendant to deposit the decree amount of Rs.75,900/- into the Court on or before 19.03.2008, failing which the application will stand dismissed, etc. and the same is a valid and proper one in the eye of law and the same need not be disturbed by this Court at the stage of revision. 5. This Court has heard the learned counsel appearing for the parties and noticed their respective contentions. .6. In the affidavit filed by the revision petitioner/1st defendant in I.A.No.198 of 2007, it is categorically mentioned that the 1st respondent/plaintiff wanted to purchase the property, but he along with other members of joint family have not been willing to sell the property to the 1st respondent/plaintiff and has sold the property to 2nd respondent herein as per the sale deed dated 011. 2007 and aggrieved over the same, the 1st respondent/plaintiff has filed the suit by fabricating a pronote as if the same is executed by him and since the property has been sold to 2nd respondent/2nd defendant, he has not contested the case and only when he was in receipt of notice under Rule-37 in R.E.P.411/2006, he has come to know that an ex-parte decree has been passed against him on 19.04.2006 and further that he has a good case to contest and there has been a delay of 228 days in filing the application to set aside the ex-parte decree. 7. In the counter filed by the respondent, it is mentioned that the suit has been decreed after full trial by the trial Court on 19.04.2006 and the revision petitioner has to prefer an appeal against the judgment and decree in O.S. No.454/04 and not entitled to file an application to condone the delay etc., and therefore the petition has got to be dismissed. 8. 8. The main thrust of the revision petitioners case is that when a Court of law deals with an application under Section 5 of Limitation Act (in regard to condonation of delay), it cannot direct a party to deposit the decree amount whatever may be the quantum specified in its order. It is true that a diligent party need not suffer at the hands of another party who is not careful enough to prosecute his proceedings in the manner known to law when he has got the same. But this court is of the considered view that though a Court of law much less the trial Court has got every reason either to accept or not to accept the reason ascribed in the affidavit of condonation of delay application, but by no stretch of imagination, the trial Court shall pass a conditional order in I.A.No.198 of 2007 (Section 5 Application), directing the revision petitioner to deposit the decree amount of Rs.75,900/- into the Court on or before 19.03.2008, failing which the application will stand dismissed, etc., and the said observation which in the considered opinion of this Court is not a valid and prudent order in the eye of law and in that view of the matter, this court is inclined to set aside the said order passed in I.A.No.198 of 2007 dated 19.02.2008. Resultantly this Court allows the Civil Revision Petition, of course by imposing a cost of Rs.2,000/- (Rupees Two Thousand only) being a penalty to be paid by the revision petitioner to the 1st respondent/plaintiffs counsel directly on or before 31.07.2009, failing which the revision petition will stand dismissed automatically without any further reference. 9. In fine, the revision petition is allowed. The order passed by the trial court in I.A.No.198 of 2007 is set aside. The revision petitioner is directed to pay a cost of Rs.2,000/- (Rupees Two Thousand only) to the 1st respondent / plaintiff on or before 31.07.2009, failing which the petition shall stand dismissed automatically. Consequently, connected miscellaneous petition is closed. 10. The order passed by the trial court in I.A.No.198 of 2007 is set aside. The revision petitioner is directed to pay a cost of Rs.2,000/- (Rupees Two Thousand only) to the 1st respondent / plaintiff on or before 31.07.2009, failing which the petition shall stand dismissed automatically. Consequently, connected miscellaneous petition is closed. 10. Moreover, the trial Court is directed to receive the written statement filed by the 1st defendant and the trial Court is directed to frame issues on the basis of the written statement filed by the 1st defendant and in any event, the trial Court is directed to dispose of the main case O.S.No.454 of 2004 within a period of four months from the date of receipt of the copy of this order and report compliance to this Court without fail.