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2010 DIGILAW 2641 (MAD)

V. T. Sundaramani v. V. G. Kuppuswamy & Another

2010-07-01

M.CHOCKALINGAM, T.RAJA

body2010
Judgment :- M.CHOCKALINGAM, J. This intracourt appeal challenges an order of dismissal made by the learned Single Judge of this Court in Application No.5817 of 2008 in C.S.No.528 of 2004 whereby the request of the appellant seeking condonation of delay of 522 days in filing an application to set aside the ex-parte decree dated 14.6.2007, passed in C.S.No.528/2004 was denied. 2. The Court heard the learned Counsel for the appellant and also for the first respondent/caveator. 3. Admittedly, it was a suit for recovery of possession and damages filed by the first respondent/plaintiff. The suit was taken on file in C.S.No.528 of 2004 and the appellant as the first defendant and also the second respondent as the second defendant appeared before the Court by engaging a Counsel, but not filed the written statement till an ex-parte decree came to be passed on 14.6.2007. An application was filed by the appellant on 15.12.2008, seeking to set aside that ex-parte decree along with an application to condone the delay of 522 days. A counter was filed by the opposite party namely the first respondent/plaintiff. 4. The learned Single Judge after taking into consideration the materials available, took the view that it was not a fit case where the delay could be condoned and hence dismissed the application. Hence this appeal. 5. A counter was filed by the opposite party namely the first respondent/plaintiff. 4. The learned Single Judge after taking into consideration the materials available, took the view that it was not a fit case where the delay could be condoned and hence dismissed the application. Hence this appeal. 5. Assailing the order of the learned Single Judge, the learned Counsel took the Court to paragraph 4 of the affidavit in support of the application wherein the appellant has stated that he was under mental agony since he lost his son in the accident in which the former Prime Minister Rajiv Gandhi was assassinated; that his son was a photographer; that because of the mental agony he could not carry on his day-to-day affairs properly, and therefore the delay has occasioned, and it is also a suit for recovery of possession; that the appellant is in possession of the property for a long time; that he also raised a superstructure therein; that he came to know about the proceedings only after the service of the E.P. notice; that thereafter, he filed the application and the delay has occasioned; that the delay was neither deliberate nor wanton; that it is a case where the Court has to show indulgence to him by condoning the delay; that though all these aspects were brought to the notice of the learned Single judge, they were not appreciated, and hence the appeal has got to be ordered. 6. The Court heard the learned Counsel for the first respondent/caveator who made his sincere attempt of sustaining the order. 7. This Court paid its consideration on the submissions made. After doing so, this Court is of the considered opinion that the appeal does not carry any merit whatsoever. 8. As stated above, it was not in controversy that for the non-filing of the written statement, an ex-parte decree came to be passed on 14.6.2007, in C.S.No.528 of 2004 wherein the first respondent is the plaintiff who sought the relief of recovery of possession and also damages. It is pertinent to point out that the appellant has engaged a Counsel and was also represented by him. Now the plea put forth by him before the learned Single Judge and also before this Court that he had no knowledge about the suit proceedings earlier cannot be countenanced for more reasons than one. It is pertinent to point out that the appellant has engaged a Counsel and was also represented by him. Now the plea put forth by him before the learned Single Judge and also before this Court that he had no knowledge about the suit proceedings earlier cannot be countenanced for more reasons than one. Originally, the second respondent who is the nephew of the appellant, filed O.S.No.4931 of 1984 on the file of the City Civil Court for the relief of specific performance on the strength of an agreement for sale. Though he got a decree before the trial Court, the same was reversed in the first appellate forum. Then the second appeal preferred by him was also dismissed and thus, those proceedings came to an end. At this juncture, the learned Counsel for the first respondent brought to the notice of the Court that in that suit, the appellant was examined as P.W.1, and therefore, he had knowledge about the proceedings pending at that time. As far as the proceedings in C.S.No.528 of 2004 are concerned, he has appeared through the Counsel and was represented by him. Number of occasions time was granted, but the written statement was not filed. Finally, the ex-parte decree came to be passed on 14.6.2007, and E.P. has also been taken in E.P.No.249 of 2007 wherein delivery has been ordered. There was obstruction, and for removal of that obstruction, an application was filed, and at the time when an order came to be passed with regard to break open the lock with the police aid, the instant application came to be filed to condone the delay. All would be clearly be indicative of the fact that the appellant had got knowledge about all the proceedings, and he filed the application belatedly. 9. The only contention put forth by the learned Counsel for the appellant that he was under the mental agony due to the loss of his son in the year 1991 cannot be accepted for the reason that he has participated in all the proceedings in C.S.No.4931/1984 which was filed by his nephew, and also he has engaged a Counsel who filed vakalath in the pending proceedings. Therefore, all would go to show that it cannot be a sufficient cause as one envisaged under Sec.5 of the Limitation Act. Therefore, all would go to show that it cannot be a sufficient cause as one envisaged under Sec.5 of the Limitation Act. In the absence of any sufficient cause, it would not be fit and proper to condone the delay. In the instant case, the learned trial Judge has clearly pointed out that there was no sufficient cause. This Court is unable to appreciate any one of the contentions put forth by the learned Counsel for the appellant. Under the circumstances, this Court is not to disturb the order of the learned Single Judge. 10. In the result, this original side appeal fails, and the same is dismissed confirming the order of the learned Single Judge and leaving the parties to bear their costs. Consequently, connected MP is also dismissed.