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2010 DIGILAW 1752 (MAD)

T. R. Muthukrishnan v. S. Kadirvelu

2010-04-13

M.JAICHANDREN

body2010
Judgment :- 1. This Civil Revision Petition has been filed against the order, dated 29.12.2006, made in I.A.No.15452 of 2006, in O.S.No.1945 of 1994, on the file of XIII Assistant Judge, City Civil Court, Chennai. 2. The respondent had filed the suit, in O.S.No.1945 of 1994, on the file of the XIII Assistant Judge, City Civil Court, Chennai, praying for a decree against the petitioner herein, the defendant in the said suit, for a declaration that the respondent is the owner of the land on the eastern side of Door No.14/2, Tiruvallurvarpuram, Second Street, Choolaimedu, Kodambakkam, Chennai, described in the suit schedule, for possession of the said land, and for a mandatory injunction directing the petitioner to remove the water pipelines, drainage line, drainage chamber and the electric meter box from the suit schedule property and for damages at the rate of Rs.100/-per mensum, from the date of the plaint, till the delivery of vacant possession of the suit schedule land. 3. The suit, in O.S.No.1945 of 1994, was taken up for joint trial, along with O.S.No.625 of 1993. While so, the petitioner herein had filed an interlocutory application, in I.A.No.15452 of 2006, praying that the trial Court may be pleased to permit the filing of the written statement, in the suit, in O.S.No.1945 of 1994. 4. The petitioner had stated that the respondent, having filed an earlier suit, in O.S.No.7548 of 1999, basing his claim on identical facts and issues and documents, and the said suit having been dismissed by the XII Assistant Judge, City Civil Court, Chennai, on 6.2.2003, it is not open to the respondent to file another suit, in O.S.No.1945 of 1994, for a similar relief, as it would be affected by the principle of res judicata. In such circumstances, the petitioner had filed I.A.No.15452 of 2006, for filing a written statement in the suit, in O.S.No.1945 of 1994. 5. The respondent had resisted the application filed by the petitioner stating that, after the suit summons had been served on the petitioner, who is the defendant in the suit, in O.S.No.1945 of 1994, and after he was given several chances to file the written statement, he had failed to do so. Therefore, he was set exparte in the said suit, on 29.8.1996. Nearly ten years thereafter, the petitioner had filed the interlocutory application, in I.A.No.15452 of 2006, seeking permission to file an additional written statement. Therefore, he was set exparte in the said suit, on 29.8.1996. Nearly ten years thereafter, the petitioner had filed the interlocutory application, in I.A.No.15452 of 2006, seeking permission to file an additional written statement. When the time limit for the filing of the written statement has been prescribed by the Civil Procedure Code, 1908, as 30 days, with the maximum period of 90 days, if sufficient cause is shown for the delay, no written statement can be filed after the lapse of nearly ten years, contrary to the relevant provisions of the Civil Procedure Code, 1908. 6. Further, the trial Court, by its order, dated 29.12.2006, had dismissed the application filed by the petitioner stating that the suit, in O.S.No.1945 of 1994, had been taken up for joint trial, along with O.S.No.625 of 1993, as the subject matter in both the suits was the same. Since, a written statement had been filed, in O.S.No.625 of 1993, the suit in O.S.No.1945 of 1994, had also been taken up for trial. At that stage, the petitioner had filed an interlocutory application, in I.A.No.15452 of 2006, praying for permission to file a written statement, in O.S.No.1945 of 1994. 7. It had been further stated that the trial Court had held that there cannot be any permission granted in favour of the petitioner, permitting him to file a written statement, after a period of nearly 12 years from the date of the filing of the suit. It had also been stated that it would cause serious prejudice to the respondent, if such permission was granted. Aggrieved by the said order of the trial Court, dated 29.12.2006, the petitioner has preferred the present civil revision petition before this Court, under Article 227 of the Constitution of India. 8. The learned counsel appearing on behalf of the petitioner had submitted that the Court below ought to have noted that the petitioner is entitled to file a written statement, in O.S.No.1945 of 1994, to bring on record the events pertaining to the filing of O.S.No.625 of 1993 and O.S.No.1945 of 1994 and the subsequent events that had taken place. The trial Court ought to have exercised its jurisdiction in permitting the petitioner to file the written statement in order to avoid multiplicity of proceedings. The trial Court ought to have exercised its jurisdiction in permitting the petitioner to file the written statement in order to avoid multiplicity of proceedings. Since, the suit, in O.S.No.1945 of 1994, had not been decreed exparte, the petitioner is entitled to participate in the proceedings in the said suit. The trial Court ought to have noted that no prejudice would be caused to the respondent, if the petitioner was permitted to file a written statement, as prayed for by him, in I.A.No.15452 of 2006. Further, the time limit prescribed in Order VIII Rule 1 of the Civil Procedure Code, 1908, is not mandatory in nature. 9. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions: 1) Sulochana Amma V. Narayanan Nair ( 1994(2) SCC 14 ) 2) Topline Shoes Ltd. V. Corporation Bank (2002(3) CTC 187) 3) SK.Salim Haji Abdul Khayumsab V. Kumar ( 2006(1) SCC 46 ) 4) Ramchandra Dagdu Sonavane V. Vithu Hira Mahar ( AIR 2010 SC 818 ) 5) Sathyamoorthy Co-operative Building Society Limited V. Srinivasamoorthy (2004(2) M.L.J. 449) 6) B.Kantilal V. The Assistant Director of Drug Control (2010(1) CWC 439) 10. The learned counsel appearing on behalf of the respondent had submitted that the petitioner has been consistently negligent and indifferent in conducting the suits, in O.S.No.625 of 1993 and O.S.No.1945 of 1994. Both the said suits were taken up for a joint trial and the petitioner had given evidence, as P.W.1, on 1.2.2001. The chief examination continued till 29.6.2001, as the petitioner had been prolonging the proceedings, unnecessarily. When the suits were posted for cross examination, neither the petitioner, nor his counsel was present. The suits were listed for hearing on various dates from 4.9.2001, till 8.11.2001. Thereafter, the trial Court had posted the suits for defendant’s evidence. At that stage, the petitioner had filed interlocutory applications, in I.A.Nos.19259 and 19260 of 2001, for reopening the plaintiff’s side evidence and for recalling P.W.1. However, the trial Court had dismissed both the applications filed by the petitioner. Thereafter, the petitioner had filed interlocutory applications, in I.A.Nos.3103 and 3104 of 2001, to review the orders passed by the trial Court. The trial Court had dismissed the said applications, on 18.11.2004. 11. When the suits were posted for defendant’s evidence the respondent had filed the proof affidavit. Thereafter, the petitioner had filed interlocutory applications, in I.A.Nos.3103 and 3104 of 2001, to review the orders passed by the trial Court. The trial Court had dismissed the said applications, on 18.11.2004. 11. When the suits were posted for defendant’s evidence the respondent had filed the proof affidavit. Even after several adjournments the petitioner did not choose to cross examine the respondent. Therefore, the defendant’s evidence was closed and the suits were posted for arguments. While so, the petitioner had filed an interlocutory application, in I.A.No.15452 of 2006, to permit him to file an additional written statement in the suit, in O.S.No.1945 of 1994, even without the petitioner having filed the written statement. The trial Court, relying on Order VIII Rule 1 of Civil Procedure Code, 1908, dismissed the application, by an order, dated 29.12.2006, by giving detailed reasons. As such, the civil revision petition filed the petitioner is devoid of merits. 12. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available and in view of the decisions cited above, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for in the present civil revision petition. 13. The petitioner has not been in a position to show that he had sufficient cause and acceptable reasons to file the written statement, belatedly, after more than ten years from the date of the filing of the suit, in O.S.No.1945 of 1994. It is seen that the petitioner has been negligent and lethargic in pursuing his remedies before the trial Court, as well as before this Court. Even though the suit, in O.S.No.1945 of 1994, had been filed by the respondent before the learned XIII Assistant Judge, City Civil Court, Chennai, in the month of March, 1994, the petitioner has chosen to file the interlocutory application, in I.A.No.15452 of 2006, only on 15.11.2006. The trial Court had dismissed the interlocutory application, by an order, dated 29.12.2006. Even though the copy of the order, dated 29.12.2006, had been made ready, on 13.4.2007, the petitioner had chosen to file the present civil revision petition, only on 14.8.2009 and it had been numbered, after its representation by the petitioner, only in the month of January, 2010. 14. Even though the copy of the order, dated 29.12.2006, had been made ready, on 13.4.2007, the petitioner had chosen to file the present civil revision petition, only on 14.8.2009 and it had been numbered, after its representation by the petitioner, only in the month of January, 2010. 14. Even though, from the decisions cited above, it could be gathered that the time limit prescribed, in Order VIII Rule 1 of the Civil Procedure Code, 1908, may not be mandatory and that the Courts concerned could extend the time for the filing of the written statements, if sufficient cause is shown by the defendant in the suit, it would not be of any help to the petitioner, as it is clear from the records available that he has been negligent and lethargic in pursuing his remedies. It is well settled that the long arms of law could be stretched, only to provide succour to those who seek its aid, promptly and prudently. In such circumstances, it cannot be said that the order of the learned XIII Assistant Judge, City Civil Court, Chennai, dated 29.12.2006, made in I.A.No.15452 of 2006, in O.S.No.1945 of 1994, cannot be said to be arbitrary, erroneous or illegal. As such, the civil revision petition is devoid of merits. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.