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2010 DIGILAW 1896 (MAD)

S. Ramakrishnan v. S. Rajeswari

2010-04-21

S.TAMILVANAN

body2010
Judgment :- 1. Challenging the order dated 16.07.2009 passed in I.A.No.505 of 2008 in O.S.No.10 of 2003 on the file of the Subordinate Judge, Thiruvallur, this Civil Revision has been preferred. 2. The petitioners herein had filed an Interlocutory Application, under Section 5 of the Limitation Act, to condone the delay of 1128 days in filing a petition, under Order IX Rule 13 CPC, to set aside the ex-parte decree dated 09.07.2005. According to the learned counsel appearing for the respondent / plaintiff, in the accompanying affidavit filed in supporting the petition filed under Section 5 of Limitation Act, no reason has been assigned by the petitioners to condone the inordinate delay of more than three years. 3. In the accompanying affidavit filed before the court below, a copy of which available at page No.11 of the typed set of papers, it is seen that the petitioners herein have not stated any acceptable reason to condone the delay of 1128 days. As per the impugned order, the court below has found that the petitioners have not assigned any genuine reason to condone the inordinate delay. However, in the grounds of revision, they have stated that only at the time of E.P. proceedings, the petitioners herein came to know about the ex-parte decree. The court below has passed a detailed order holding that the petitioners had knowledge about the ex-parte decree, however no petition was filed to set aside the ex-parte decree in time. 4. Learned counsel appearing for the respondent also submits that the petition filed by the petitioner before the court below, with a delay of 1128 days, without any justifiable reason is a clear abuse of process of the court. It is seen that the suit relating to the revision, for specific performance was filed in the year 2003 and the same was decreed in the year 2005, the petitioners had knowledge about the suit being filed, having appeared through counsel, failed to cross-examine the plaintiff's witness and left the suit for ex-parte decree and subsequently filed a petition to set aside the ex-parte decree along with an application under Section 5 of Limitation Act to condone the delay of 1128 days. According to the learned counsel for the respondent, there is no justifiable reason to condone the delay. According to the learned counsel for the respondent, there is no justifiable reason to condone the delay. Learned counsel for the petitioners has not disputed the fact that the petitioners had appeared before the court below through a counsel, but subsequently failed to cross-examine the plaintiff's witness, though the case was adjourned to various dates for cross-examination. Hence, the reason stated in the Revision petition that the petitioners had no knowledge is not true. 5. In Ramon Services Pvt. Ltd., vs. Subhash Kapoor, reported in AIR 2001 SC 207 , the Hon'ble Supreme Court with regard to professional duty of Advocate has held as follows: "A lawyer is under obligation to do nothing that shall detract from the dignity of the Court, of which he is himself a sworn officer and assistant. He should at all times pay differential respect to the Judge, and scrupulously observe the decorum of the court room." 6. In Tahil Ram vs. Ramchand, reported in AIR 1993 SC 1182 , the Hon'ble Apex Court has ruled that it is the duty of an Advocate to attend a case both on the clients as well as the court. 7. It has been made clear by various decisions of the Hon'ble Apex Court that an Advocate is a Court Officer. It is his duty to protect the dignity of the Judicial Institution, apart from defending his client legally, in order to succeed in a case and he cannot be carried away by improper and unreasonable instructions of the party to circumvent the law and the procedure and adopt tactics, such as forum shopping on flimsy grounds. 8. It seen that Mr.K.V.Ramesh, learned counsel for the petitioners, by his letter, dated 20.04.2010, addressed the Registrar (Judicial) of this Court, has stated as follows: "The above C.R.P is in the list of its Lordship Justice S.Tamilvanan on 21.04.2010. His Lordship has taken view against the petitioners in identical case reported in 2010 Chennai Law Times at Page No.404. Therefore, this may be listed before some other Honourable Judge, after vacation." 9. His Lordship has taken view against the petitioners in identical case reported in 2010 Chennai Law Times at Page No.404. Therefore, this may be listed before some other Honourable Judge, after vacation." 9. Merely because, as per a reported decision, a similar revision petition relating to Section 5 of Limitation Act to condone inordinate delay was dismissed by this Court, citing the reported decision, the learned counsel appearing for the petitioners cannot resort to a short cut method by giving a letter to the Registrar (Judicial) of this Court to post the matter to some other Judge, though the arguments were already heard in this Revision and only at the request of the learned counsel for the petitioners, when the same was adjourned for citing authority. I am of the view that the 'modus operandi' followed in this case would affect the dignity of the Institution, as the same would not be a healthy legal procedure followed by any counsel. The petitioners have not stated any acceptable ground to condone the inordinate delay of 1128 days. Though they appeared before the trial court through a counsel, without cross-examining the witness, in spite of the fact that the case being adjourned on various dates, left the suit for exparte decree, hence, the new defence raised by the petitioners in the Revision that they had no knowledge about the exparte decree has to be construed only as a false grounds. 10. It is seen from the copy of the written statement filed by the petitioners / defendants that they have admitted the execution of the Registered agreement for sale in favour of the respondent herein. Hence, the petitioners / defendants are estopped from raising a defence of partial consideration against their own admission made in the Registered agreement for sale, dated 04.12.2001 and the defence is also against their legal presumption under Section 114 (c) of the Indian Evidence Act. Hence, it could be construed only an abuse of process of Court. 11. On the aforesaid facts and circumstances, after carefully considering the impugned order, the material papers and the arguments advanced by both the learned counsel, I could find that it is only an abuse of process of court by the petitioners, as contended by the learned counsel for the respondent and there is no error or infirmity in the impugned order passed by the court below. Hence, I am of the view that there is no merit in the civil revision petition. 12. In the result, this civil revision petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there will be no order as to costs.