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2010 DIGILAW 2471 (MAD)

E. v. Muniappa VS S. Mathaiya

2010-06-21

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 14.12.2009 passed in I.A.No.557 of 2009 by the District Munsif, Hosur, this civil revision petition is focused. 2. Tersely and briefly, pithily and precisely the relevant facts absolutely necessary and germane for the disposal of this civil revision petition would run thus: (i) The respondent herein, as plaintiff, has filed the suit for specific performance of an agreement to sell in respect of an immovable property belonging to the defendant, who happened to be the revision petitioner herein. Without serving suit summons in person on the defendant, the suit proceeded based on the substituted service. Ultimately, ex-parte decree was passed on 15.6.2005. (ii) Subsequently, it seems E.P.was filed for getting the sale deed executed and even in that E.P., it seems, personally notice was not served. However the revision petitioner/defendant came to know of it and filed the I.A.No.557 of 2009 under Section 5 of the Limitation Act to get the delay of 1354 days condoned in filing the application to get the ex-parte decree set aside. (iii) After hearing both sides, the lower Court dismissed the application. 3. Being aggrieved by and dis-satisfied with the said order, this revision has been focussed on various grounds, the gist and kernal of them would run thus: (a) The lower Court failed to take into consideration the fact that the revision petitioner/defendant shifted his residence from Krishnagiri to Bangalore in connection with his job as a security personnel. (b) The lower Court also failed to take into consideration the fact that the respondent/plaintiff did not take sincere efforts to get the suit summons served on the defendant. (c) The trial Court could have taken a lenient view and condoned the delay. (d) No doubt, the lower Court took a strict view that even after coming to know of the proceedings there was a delay of 1½ months, which strict view might have been avoided by the lower Court in the facts and circumstances of this case. Accordingly, the learned counsel for the revision petitioner prays for setting aside the order of the lower Court and for allowing the I.A. in condoning the delay of 1354 days in filing the application to get the ex-parte decree set aside. 4. Accordingly, the learned counsel for the revision petitioner prays for setting aside the order of the lower Court and for allowing the I.A. in condoning the delay of 1354 days in filing the application to get the ex-parte decree set aside. 4. Despite notice having been served on the respondent personally, and his name also being found printed in the cause list, no one appeared and there is no representation on behalf of the respondent. 5. The learned counsel for the revision petitioner/defendant reiterating the grounds as found set out in the affidavit accompanying the I.A.No.557 of 2009 as well as the grounds in the revision would develop his argument to the effect that absolutely there was no negligence or any motive to protract the proceedings. The revision petitioner/defendant is very much interested in his valuable property, which happened to be the suit property and which is worth more than six lakhs. In fact, the said alleged agreement to sell was executed not as it is, but only by way of security to secure the prompt re-payment of Rs.50,000/- (Rupees fifty thousand) which the revision petitioner/defendant borrowed from the respondent/plaintiff, however, the revision petitioner/defendant fully discharged the debt but unfortunately no receipt was obtained by him. Taking undue advantage of the circumstances, the respondent/plaintiff got such ex-parte decree and trying to execute the same in its full extent. 6. The learned counsel for the revision petitioner would submit that pending I.A.No.557 of 2009 the sale deed also was executed by the executing Court in favour of the respondent/plaintiff. 7. From the whole kit and caboodle of the facts and figures, as found displayed and demonstrated from the records placed before me, what I could understand is that this is a suit involving an immovable property. The ex-parte decree was passed without personally serving summons on the defendant. Ex facie and prima facie, the petitioner/defendant expatiated and expounded before the Court that he started working as a security staff since March 2004 in Bangalore, whereas, the suit was filed only during November 2004. Even though the petitioner/defendant still having his own house in Krishnagiri yet he was not occupying it. The very fact that the Court Amin returned the summons as left should have been noted by the lower Court also, as correctly pointed out by the learned counsel for the petitioner. Even though the petitioner/defendant still having his own house in Krishnagiri yet he was not occupying it. The very fact that the Court Amin returned the summons as left should have been noted by the lower Court also, as correctly pointed out by the learned counsel for the petitioner. The lower Court took into account the fact that there was a delay of 1½ months even after coming to know of the E.P.proceedings etc. In my opinion, such draconian view should not have been taken in a matter of this nature, where an immovable property is involved and that the suit summons was not personally served. 8. I could see no wilful negligence on the part of the petitioner in dragging on the proceedings because he is the owner of the property concerned and in such a case, by dragging on the proceedings he is not going to be benefited. Over and above that a mere perusal of the ex-parte judgement would leave much to be decided. 9. It is crystal clear that this Court by virtue of the Circular in ROC No.195/76.Con.B2 dated 22nd November 1977 clearly pointed out that the lower Court, while passing the ex-parte decree should give reasons in an objective manner. But here the lower Court failed to adhere to such a procedure. 10. The ex-parte judgement of the lower Court is as precise as precision could be and thereby falling foul of the Circular issued by this Court. It is also a trite proposition of law that an ex-parte judgement does not mean that it should be pronounced in favour of the plaintiff simply for the sake of the plaintiff having asked for it. Independent of any defence forthcoming from the defendants side the plaintiff should prove the case. 11. At this juncture I call up and recollect the following maxim: Affirmantis est probare – He who affirms must prove. 12. Here the judgement of the lower Court is not in accordance with the aforesaid principle and on that ground also the ex-parte judgement has to be set aside. This Court, while exercising its revisional jurisdiction, so to say, supervisory jurisdiction can suo motu look into that aspect also and pass necessary orders. 12. Here the judgement of the lower Court is not in accordance with the aforesaid principle and on that ground also the ex-parte judgement has to be set aside. This Court, while exercising its revisional jurisdiction, so to say, supervisory jurisdiction can suo motu look into that aspect also and pass necessary orders. Hence, in these circumstances, I would like to set aside the order of the lower Court and allow the I.A.557 of 2009 by condoning the delay of 1354 days subject to the condition that the petitioner shall deposit a sum of Rs.5000/- (Rupees five thousand only) in the lower Court on or before 21.7.2010, so as to enable the respondent to take it as cost awarded in this matter. If there is failure on the part of the petitioner in paying the cost, then this order would not enure to his benefit. 13. The civil revision petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.