Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 5102 (MAD)

R. Elumalai v. G. Varadhan

2009-11-25

M.VENUGOPAL

body2009
Judgment :- The revision petitioner/plaintiff has filed this civil revision petition praying for issuance of an order to set aside the payment accepted by the learned Principal Subordinate Judge, Tindivanam vide L.O.No.482 dated 3. 2009 in I.A.No.5/2007 in O.S.No.194/98. 2. According to the learned counsel for the revision petitioner, the revision petitioner/plaintiff has filed the suit O.S.No.194 of 1998 on the file of learned Principal Subordinate Judge, Tindivanam for specific performance of agreement dated 13.02.97 against the respondents/defendants and the suit has been decreed on 31. 2006 and later E.P.No.158 of 2002 has been filed and that during the trial P.W.1 has been examined in chief on 15.03.2002 and examination has been over on 15.04.2002 and on 24.09.2002 the respondents/defendants having set exparte and that as per the order of the trial Court the revision petitioner/plaintiff has deposited Rs.45,000/- and also submitted a draft sale deed and that the exparte order dated 24.08.2002 has been set aside and that the time has been granted for cross examination and that the exparte order has been set aside on 012. 2003 and that on 012. 2003 the first respondent has been present and the second and third respondent have been absent and again set exparte and since PW1 has not been cross-examined the first defendant has been set exparte etc. 3. Later on 27.07.2002 the exparte order has been set aside and the matter has been adjourned from time to time. However, it is brought to the notice of this Court that on 30.08.2004 P.W.1 has been partly cross examined and from 011. 2005 the case has been adjourned for cross examination of P.W.2 and P.W.3 and their evidence has been closed on 03.09.2005 etc., and ultimately the suit has been decreed on 31. 2006 in favour of the revision petitioner/plaintiff n that the respondents/defendants have filed I.A.No.5 of 2007 to set aside the judgment passed in the above suit praying to condone the delay of 131 days in projecting the application to set aside the judgment and the same has been dismissed on 22.02.2007 by the trial Court, as against which C.R.P.NPD.No.3410 of 2007 has been filed against the order of the trial Court dated 22.02.2007 in I.A.No.5 of 2007 and this Court by an order dated 212. 2008 in C.R.P.NPD.No.3410 of 2007 has passed a conditional order directing the respondents/defendants to deposit a sum of Rs.5000/-in the lower Court on or before 30.01.2009. But the respondents/ defendants though filed the lodgment schedule in the lower Court on 21. 2009 deposited the amount of Rs.5000/-only on 03. 2009 and inasmuch as the trial Court has committed an error in accepting a sum of Rs.5000/-beyond the time limit fixed by this Court in C.R.P.NPD.No.3410 of 2007 the same is an illegal one in the eye of law and as a matter of fact, the trial Court ought not to have issued the challan to the respondents/defendants for payment of Rs.5,000/-after 30.1.2009, the date fixed by this Court and indeed, the trial Court has no jurisdiction to extend the time limit fixed by this Court and therefore, prays for allowing the civil revision petition in the interest of justice. 4. As seen from the lodgment schedule memo dated 21. 2009 filed on behalf of the respondents/defendants before the trial Court, it is clear that the respondents have prayed the trial Court to accept a sum of Rs.5000/-by means of lodgment and to pass necessary orders thereto. On the reverse side of the said lodgment schedule memo it has been endorsed on 3. 2009 by the Office of the Principal Sub Court, Tindivanam that the bundle not received from High Court. Orders only received and a note has been submitted for orders which runs as follows: "Advocate for the petitioner filed this lodgment schedule to deposit Rs.5000/-towards cost as per direction of Honble High Court, Madras dated 212. 2008 passed in CRP (NPD).No.3410/ 2007 and MP.1/2007 and prays to issue challan. Payment should be deposited on or before 30.1.2009" and the order has been passed as Issue for and accordingly, the lodgment in LO.482/3. 2009 issued for Rs.5000 and by means of by order the Chief Ministerial Officer of the Court viz., Sheristadar has signed. 5. The core of the contention of the learned counsel for the revision petitioner is that this Court in C.R.P.NPD.No.3410 of 2007 has passed a conditional order directing the respondents/defendants to deposit a sum of Rs.5000/-before the trial Court on or before 30.1.2009. But they have filed the lodgment schedule only on 21. 2009 and deposited the said amount of Rs.5000/-only on 3. But they have filed the lodgment schedule only on 21. 2009 and deposited the said amount of Rs.5000/-only on 3. 2009, which is admittedly beyond the expiry of the time granted by this Court in the CRP order dated 212. 2008 in C.R.P.NPD.No.3410 of 2007 and therefore, in strict sense of the term the respondents/defendants ought to have filed an extension application seeking enlargement of time under Section 148 of the Civil Procedure Code praying permission of the Court to deposit the said sum of Rs.5000/- by means of lodgment. 6. Admittedly, the fact remains that the respondents/ defendants have not resorted to the procedure of projecting an application praying for an extension of time under Section 148 of the Civil Procedure Code in the matter in issue. The main reason ascribed on the side of the respondents/defendants in this regard is that the respondents/defendants are not responsible for the delay caused because the bundle has not been received from the High Court after the disposal of C.R.P.NPD.No.3410 of 2007 on 212. 2008 and the trial Court has only received the orders on 3. 2009 and before the trial Court an office note has been submitted and later only on 3. 2009 the lodgment has been issued for Rs.5000/-and in short, for the delay in not receiving the records in time or for any laches in this regard on the part of the concerned, the bonafide litigants shall not suffer for the mistake that has occurred either by an act of omission or commission done unintentionally. 7. On a careful of consideration of respective contentions even though a technical plea is put forward on the side of revision petitioner/plaintiff that the respondents/defendants have not projected the application praying for enlargement of time under Section 148 of Civil Procedure Code in regard to the filing of the lodgment schedule pertaining to the acceptance of Rs.5000/- as ordered by this Court in C.R.P.NPD.No.3410 of 2007 yet this Court is of the considered view that inasmuch as the bundle has not been received from the High Court, and only orders have been received as per endorsement made by the trial Court in the lodgment schedule memo filed on the side of respondents/ defendants dated 21. 2009, this Court is of the considered view that technical considerations will have to be overlooked while delivering substantial justice to subserve the ends of justice and hence, this Court, by taking a liberal, pragmatic and common sense approach in a useful and meaningful manner, disposes of the civil revision petition by observing that the respondents/defendants cannot be found fault with in any manner in regard to the lodgment which they have submitted before the trial Court and accepted by the trial Court on 3. 2009, and moreover, for non-receipt of records in time by the trial Court from High Court, the respondents/defendants cannot be penalised in any manner and viewed in that perspective the act of the trial Court in accepting the lodgment schedule on 05.03.2009 is not an arbitrary, capricious and whimsical one and per contra the same is perfectly a legal and valid one which cannot be interfered with by this Court sitting in revision on any score and answered. Consequently, connected miscellaneous petition is closed. Having regard to the facts and circumstances of the case, there shall be no order as to costs.