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2010 DIGILAW 5095 (MAD)

Manickam v. Sundarammal

2010-11-19

V.PERIYA KARUPPIAH

body2010
Judgment :- 1. This revision has been filed against the order of dismissal passed by the lower Court in I.A.No.38 of 2010 dated 09.04.2010, an application to condone the delay of 656 days in filing an application to set aside the exparte preliminary decree. 2. Heard Mr.I.C.Vasudevan, learned counsel for the petitioner and Mrs.Hema Sampath, learned senior counsel appearing for the respondent. 3. The learned counsel for the petitioner would submit in his argument that the petitioner filed an application to set aside the exparte preliminary decree passed in a suit for partition and separate possession filed by the respondents, which was not legally considered by the lower Court. He would further submit that he could not meet his counsel for filing written statement on 11.06.2007 and therefore, exparte preliminary decree has been passed against him and thereafter, it is learnt that on 03.04.2008, a final decree was also passed in I.A.No.405 of 2007, setting the petitioner exparte and an advocate commissioner appointed in the said final decree proceedings had reported that the property is not divisible and therefore, the said property has to be auctioned and a notice was issued to the petitioner on 03.07.2009 and then only he could aware of the exparte preliminary decree passed against him. He would further submit that the petitioner has got a good case in the suit and even as per the case of the respondents/plaintiffs, they would at best get a share of 4/5 share only, even if their claim is unopposed, but, the lower Court has granted a preliminary decree with the share of 5/6 share in the suit property. He would further submit that there is no mala fide on the part of the petitioner, in not agitating his right in the suit, but only the disability caused to him due to illness. He would also submit that the petitioner is ready to participate in the trial, by filing necessary written statement, in the event, the exparte preliminary decree is ordered to be set aside and a time limit may be framed by this Court to dispose the suit. Therefore, he would request the Court to interfere with the orders passed by the lower Court and to set aside the same and thus allow the revision. 4. Therefore, he would request the Court to interfere with the orders passed by the lower Court and to set aside the same and thus allow the revision. 4. The learned Senior Counsel appearing for the respondent would submit in her arguments that the petitioner had engaged a counsel in the suit proceedings and sought time for filing written statement and due to the failure, in not filing written statement, exparte preliminary decree has been passed on 22.08.2007 and thereafter, the respondents have filed an application in I.A.No.405 of 2007 in the suit for passing a final decree and in the said proceedings also he was served with notice and remained exparte and an advocate commissioner was appointed for dividing the property and he was also present when the advocate commissioner inspected the suit property on two occasions, but, he did not choose to file any application to set aside the exparte preliminary decree or final decree passed against him, and he has chosen to file an application, only on 09.07.2009, stating various incorrect reasons and no documents were produced in support of his claim and therefore, the inaction, negligence and laches on the part of the petitioner cannot be condoned by the way of excusing the delay. She would further submit that the petitioner has created so many documents for contesting the suit, in the event the exparte preliminary decree has been set aside, and there is no merit in the case of the petitioner. She would also submit that there can be no prejudice caused to the petitioner in the event of dismissing the revision and on the other hand the respondents would be put to much hardship towards the loss of valuable rights accrued to them. Therefore, she would request the Court to dismiss the revision. 5. I have given anxious thoughts to the arguments advanced on either side. The disputed facts are that the suit was filed by the respondents for partition and separate possession of the only suit property namely a house belonging to mother of the parties and the respondents as plaintiffs, have claimed 5/6 share in the suit properties on the foot of the Will executed by the mother. The said suit was contested by the petitioner as a sole defendant and since written statement was not filed on his side, he was set exparte and a preliminary decree has been passed. The said suit was contested by the petitioner as a sole defendant and since written statement was not filed on his side, he was set exparte and a preliminary decree has been passed. Thereafter, a final decree application has been filed in I.A.No.405 of 2007 in O.S.No.114 of 2006 and the same was also served against the petitioner and he remained exparte and an advocate commissioner was appointed for suggesting the modes of division in the suit property and the petitioner had filed the application to set aside the exparte preliminary decree on 09.07.2009 with an application to condone the delay in I.A.No.38 of 2010. The said application was disposed of by the lower Court, after enquiry and against which the present revision has been filed. 6. The reasons put-forth by the petitioner for his absence on the day when he was set exparte would be thus:- "On 11.06.2007, the petitioners health was affected and therefore, he could not contact his counsel on that day." 7. Admittedly, no document has been filed to substantiate the claim of the petitioner. It has been also contended that the petitioner has got a very good case in the suit and even though there is no opposition to the plaint allegations, the respondents would have got only 4/5 share and not 5/6 share as ordered in the preliminary decree. When, we go through the plaint allegations for the purpose of ascertaining the merits of the case of the petitioner, it has been alleged in the plaint that the mother has bequeathed 1/6 share to every one of her issues including the petitioner herein and the mentally retarded child Rukmani was also given 1/6 share and that 1/6 share was also directed to be inherited by one Sakunthala, after the demise of the testator and accordingly, the said sakunthala was bequeathed with 2/6 share in the suit property. The said Rukmani, predeceased the testator (mother) and thereafter, testator died without altering the bequest and in the exparte preliminary decree, the share allotted to Rukmani was also given to the share of Sakunthala, as per the Will executed by the testator. Therefore, it cannot be said that the respondents will get only 4/5 share and the petitioner would get a larger share of 1/5 instead of 1/6 and he has got merit in his claim over the suit property, cannot be a correct one. 8. Therefore, it cannot be said that the respondents will get only 4/5 share and the petitioner would get a larger share of 1/5 instead of 1/6 and he has got merit in his claim over the suit property, cannot be a correct one. 8. It is not disputed that the final decree application has been filed in the year 2007 itself and the petitioner was served and he remained exparte in the final decree proceedings and thereafter, a Commissioner has been appointed. Admittedly, the application to set aside the exparte preliminary decree was filed only on 09.07.2009 with the delay of 656 days. The reasons adduced did not cover the period subsequent to the filing of the final decree application. The petitioner has given reasons for his absence only on 11.06.2007, when he was set exparte. The said facts would go a long way to show that the petitioner was inactive and even after the service of notice in the final decree application in the year 2007. Even if, his explanation for remaining absent on 11.06.2007 is accepted, the subsequent delay from the date of service of notice in the final decree application till date of filing the application to set aside the exparte preliminary decree were not explained. 9. In a similar case, this Court has come to a conclusion that the delay cannot be condoned, when inaction, laches and negligence was found imputed to a party, who is seeking condonation of delay as made in the judgment of this Court reported in 2009(5) CTC 48 in between Shanmugam v. Chokkalingam, it has been laid down as follows:- "13. On a careful understanding of the aforesaid judgments of our Honourable Apex Court and this Court, I could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bona fide is imputable to a party claiming condonation." But in this case, the petitioner was found inactive and negligence in filing the applications, immediately after the service of notice in final decree application, therefore, the said principle will apply the facts of this case. 10. Therefore, the request of the petitioner, to interfere with the order passed by the lower Court, in dismissing the claim of the petitioner cannot be accepted. 10. Therefore, the request of the petitioner, to interfere with the order passed by the lower Court, in dismissing the claim of the petitioner cannot be accepted. The lower Court has correctly come to a conclusion in exercising its jurisdiction to reject the condonation of delay. Therefore, this Court has no reason to interfere with the orders passed by the lower Court and accordingly, the revision petition is dismissed. Considering the relationship between parties, no order as to costs. Consequently, connected miscellaneous petition is closed.