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2010 DIGILAW 1659 (MAD)

Thangam @ Angamuthu v. Vasantha Paul Pandian

2010-04-08

C.S.KARNAN

body2010
Judgment :- 1. This Civil Revision Petition has been filed by the petitioners/petitioners against the Order and Decree dated 11.03.2008, made in I.A.No.168 of 2007 in unnumbered A.S..........of 2008, on the file of the Principal District Court, Salem to set aside the said order. 2. The petitioners herein are the applicants in I.A.No.168 of 2007 and the appellants in the unnumbered A.S. on the file of the Principal District Court, Salem. The civil revision petitioners have filed an interlocutory application in I.A.No.168 of 2007, praying to condone the delay of 523 days in filing the application for filing the appeal in unnumbered A.S..........of 2008, which was dismissed on 11.03.2008 against the petitioners under Section 5 of the Limitation Act. 3. In the said application, the revision petitioners/applicants/appellants inter alia stated that for non-contesting the suit in O.S.No.82 of 2001, the revision petitioners/applicants/appellants were set ex-parte in the said suit on 19.08.2005. This fact was brought to light through their counsel while they met him on 09.06.2007. 4. Aggreived by the said ex-parte decree the petitioners are preferring the regular appeal for which a delay of 523 days perused. 5. The respondent had filed a counter statement stating that on the perusal of the ex-parte decree passed in O.S.No.82 of 2001, dated 19.08.2005, the respondent had filed an Execution Petition in E.P.No.64 of 2005, in which the Court had executed a Sale Deed on 31.07.2007. On the strength of this Sale Deed, the respondent filed an application for the delivery of suit property. 6. The respondent had filed a counter statement in the condone delay petition in I.A.No.168 of 2007 in unnumbered A.S. stating that the first petitioner alone is looking after the suit proceedings and the petitioner will frequently be away from his place due to his occupation and would visit his native place once in six months. This allegation is denied by the respondent. The respondent further denied that the petitioner is a Barber in profession, having his saloon near his house at Chinnappampatty and doing his work there only. It is a false to allege that the petitioners Advocate wrote letters to him ware not received and he was under the impression that the suit was still pending. The respondent further stated in his counter that the suit was a contested one. It is a false to allege that the petitioners Advocate wrote letters to him ware not received and he was under the impression that the suit was still pending. The respondent further stated in his counter that the suit was a contested one. The first petitioner is the first defendant in the suit as himself was examined as DW1 and after the trial commenced he was present for all the hearing dates until the suit was decreed on 19.08.2005. Hence, the petitioners all of them know the fact that a decree was passed on 19.08.2005 in O.S.No.82 of 2001 by the learned Sub-ordinate Judge, Mettur, since the petitioners do not have any case to defend for filing an appeal. 7. Now the petitioners have come forward with the condoned delay petition under Section 5 of Limitation Act only to drag on the proceedings further. It is false to allege that only on 09.06.2007 the petitioners met their Advocate and then they are aware of the disposal in the case. Further, it is also false to allege that the suit agreement is for loan transaction and not for sale, this allegation is now trotted out only for the purpose of this petition. Further, now the E.P. is pending, notices are served on the petitioners, after that Sale Deed was also executed in favour of the respondent/plaintiff on 31.07.2007 by the learned Sub-Judge, Mettur on behalf of the petitioners. The Sale Deed was also registered as document No.409 of 2007, on the file of the Sub-Registrar Office at Omalur. Now, the Execution Petition is pending for delivery of possession. At this stage, the petitioners has filed this case only to drag on the proceedings. 8. Considering the contents of the condone delay petition and counter statement of the respondent, the the learned Principal District Judge, Salem had discussed stating that the petitioners/defendants had executed a Sale Agreement to and in favour of the respondent/plaintiff on 03.07.200, agreed to sell the suit property for a sum of Rs.1,50,000/- as total sale consideration. Out of which, an advance amount of a sum of Rs.1,00,000/- paid to the respondent/plaintiff. The revision petitioners had not come forward to execute the sale deed in favour of the respondent/plaintiff after receiving the balance sale consideration. Hence, the respondent/plaintiff had filed O.S.No.82 of 2001 before the learned Sub-Judge, Omalur, for specific performance. This suit was decreed on 19.08.2005. 9. The revision petitioners had not come forward to execute the sale deed in favour of the respondent/plaintiff after receiving the balance sale consideration. Hence, the respondent/plaintiff had filed O.S.No.82 of 2001 before the learned Sub-Judge, Omalur, for specific performance. This suit was decreed on 19.08.2005. 9. Further, Exs.R1 to R6 were marked on the consent of the revision petitioners. As such, the revision petitioners are well aware of the suit proceedings. The allegation that the revision petitioners after meeting their Advocate on 09.06.2007, they came to know the decree of the suit, this was not established since the revision petitioners have engaged lawyers in the E.P. Proceedings. As such they are well aware of the decree. The E.P. Court also executed a Sale Deed in favour of the respondent/plaintiff, after such a Sale Deed, the revision petitioners moved this appeal with a condone delay petition for filing their appeal on delay of 523 days. So, the learned District Judge dismissed the condone delay petition stating that there is no valid reason assigned in their affidavit of the condone delay petition. 10. Aggreived by the said Order passed in I.A.No. 168 of 2007, this Civil Revision Petition filed by the revision petitioners to set aside the Order and to allow the condone delay petition for numbering the regular appeal. 11. Learned counsel appearing for the petitioners argued that the revision petitioners counsel had written a letter to them about the result in the suit. But, it did not reach them and therefore, the delay as occasioned, cannot be ignored legally and if only goes to show the laches on the part of their Advocate and the petitioners should not be just to suffering for the inaction committed by their counsel. The learned counsel appearing for the revision petitioners further argued that the petitioners have borrowed only a sum of Rs.1,00,000/- and repaid a sum of Rs.20,000/- and a balance of only Rs.80,000/-is due and payable to the respondent herein. The learned counsel further argued that the blank stamped paper containing the signature of the petitioners, the respondent herein has converted it into an agreement of sale. The learned counsel further pointed out that the suit property belongs to the second revision petitioner, that is his self acquired property. As such, the first and third revision petitioners are not necessary parties in the said sale agreement. The learned counsel further pointed out that the suit property belongs to the second revision petitioner, that is his self acquired property. As such, the first and third revision petitioners are not necessary parties in the said sale agreement. The learned counsel further argued that no one sell their property an extent of 94 Cents of fertile land for a ridiculous price of Rs.1,50,000/-. 12. The learned counsel further argued that the respondent/plaintiff had not approached the Court with clean hands. The copy of the Sale Deed had not contained signature of the respondent/plaintiff. As such, the suit is not maintainable as per specific performance. The learned counsel further raised a ground stating that it is impossible for the revision petitioners to borrow money from the respondent/plaintiff just four days before the date of marriage of their daughter. The learned counsel further argued that all the matters to be canvassed at the time of hearing of the appeal. 13. Considering the facts and circumstances of the case, scrutiny of findings of the learned Principal District Judge, Salem and arguments advanced by learned counsel appearing for the revision petitioners, this Court is of the view as follows: 1. The respondent/plaintiff has filed suit for specific performance against the revision petitioners/defendants for executing the sale deed in their faovur. Supporting to this case, he filed original Sale Agreement dated 03.07.2000 and parental document ie. original Sale Deed in favour of the second revision petitioner/second defendant dated 19.02.1987. 2. The revision petitioners/defendants had resisted the suit by way of filing a written statement. This was filed in the month of December, 2001. The learned Sub-ordinate Judge, Mettur had passed decree and judgment in O.S.No. 83 of 2001, dated 19.08.2005, after framing issues in the suit and recorded the evidence of the PW1 and PW2, the said decree was passed. 14. After considering the above in all its aspects, that the suit was not deposed on a full pledged trial. As such, this Court decides to give an opportunity to establish the revision petitioners case before the appeal, which is a regular appeal, that should be taken as one more step to vindicate this stand, besides another step before this Honble Court and one more step before the Apex Court. As such, the revision petitioners can avail the provision as per Civil Court procedure. As such, the revision petitioners can avail the provision as per Civil Court procedure. In the instant case, the revision petitioners are in the occupation of the suit property. So, this Court allows the revision petition and sets aside the order and decree passed in I.A. No. 168 of 2007 in unnumbered A.S. and allowed the I.A.No.168 of 2007 by way of condoning the delay for filing the regular appeal. Even though there is no valid reason for the petitioners to establish themselves in the said application for allowing the civil revision petition, this Court imposed a condition on the petitioners to pay a sum of Rs.5,000/-by way of demand draft in favour of the respondent/plaintiff with in a period of 15 days from the date of receiving the order. This Court further directs the learned Principal District Judge, Salem to take the unnumbered regular appeal after complying the conditional order by the revision petitioners and dispose the appeal within a period of six months from the date of numbering the appeal. 15. In the result, the above Civil Revision Petition is allowed as observed in the above conditions. Consequently, the Order and Decree dated 11.03.2008, made in I.A.No. 168 of 2007 in unnumbered A.S..........of 2008 on the file of the Principal District Court, Salem, is set aside and the condone delay petition is allowed. Connected miscellaneous petition is closed. There shall be no order as to costs.