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2011 DIGILAW 4237 (MAD)

Pushpabai v. B. V. Sundaram

2011-10-11

R.SUDHAKAR

body2011
JUDGMENT : 1. This Civil Revision Petition is filed challenging the Order and Decretal Order dated 30.11.2010 passed in I.A.No.1000 of 2010 in O.S.No.222 of 2003 on the file of the District Munsif, Thiruvottiyur. 2. The suit O.S.No.222 of 2003 was filed by the sole plaintiff late Pushpabai, wife of the first petitioner for the following reliefs:- "16. The Plaintiff therefore prays for a decree and judgment against the defendant. 1) directing the defendant to handover to the plaintiff the vacant possession of suit item No.1 after the removal of the encroached constructions thereon namely pillars, wall and stair case and bit wall along BR. 2) for a permanent injunction restraining the defendant, his men, servants and subordinates from putting up any first floor construction encroaching further into suit item No.2 by putting up any wall or pillars over and above the Western wall of the ground floor constructions which is already an encroachment in suit item No.2. 3) directing the defendant to pay mesne profits or damages for use and occupation at the rate of Rs.100/- per month from this date till the date of recovery of possession of the suit item No.2. 4) for the cost of the suit." Notice was served on the respondent/defendant and written statement ha been filed. Thereafter on 10.9.2005, the sole plaintiff died. When the case was listed on 9.3.2010, the husband of the sole plaintiff, petitioner No.1 herein filed proof affidavit in the suit. Thereafter, the matter was posted on 23.3.2010 for cross examination and on that date a memo has been filed stating that the sole plaintiff died. Thereafter, on 11.8.2010, plaintiff's husband along with five others filed petition I.A.No.1000 of 2010 under Section 5 of the Limitation Act, to condone the delay of 1652 days in filing the application to implead themselves as legal heirs of the deceased sole plaintiff Pushpabai. The said petition I.A.No.1000 of 2010 was resisted by the respondent/defendant by filing counter wherein in para 2 it has been stated as follows:- "2. In fact the case was posted in the list on 09.03.2010 and proof also has been filed on 09.03.2010 then only a Memo has been filed when it was posted for cross examination on 23.03.2010. The duty is cost upon the petitioner why such misrepresentations have been made before this Hon'ble Court. In fact the case was posted in the list on 09.03.2010 and proof also has been filed on 09.03.2010 then only a Memo has been filed when it was posted for cross examination on 23.03.2010. The duty is cost upon the petitioner why such misrepresentations have been made before this Hon'ble Court. When the sole plaintiff is said to have died on 10.09.2005." The respondent/defendant further contended that no reasonable explanation was given for the delay and that the first petitioner, who was appearing before the lower Court, suppressed and concealed the fact of death of the sole plaintiff. Even though the death occurred on 10.9.2005, the first petitioner did not inform the Court about the death for quite a long period of time and even in the proof affidavit filed on 9.3.2010, the death of the sole plaintiff was not stated. This act on the part of the first petitioner disentitles him for any relief. 3. The Court below considering the materials on record came to the conclusion that when the proof affidavit was filed, the respondent as well as the Court were given to understand that the sole plaintiff was very much alive. The first petitioner having full knowledge of the death of his wife more than five years ago, proceeded to file proof affidavit as if his wife was still alive. According to the lower court, this conduct of the first petitioner amounts to misrepresentation of the facts, and to mislead the Court. The first petitioner was bound to inform the Court about the death of his wife in the proof affidavit which he failed to do. The filing of the proof affidavit would go to show that the first petitioner wanted to conduct the case as if the sole plaintiff was still alive. Such conduct did not find favour with the Court. 4. Further, it is contended that I.A.No.830 of 2003 was filed for appointment of advocate-commissioner and that came to be ordered on 17.11.2009. Even on that date, the first petitioner should have informed the Court that the sole plaintiff had died already. The Court below further came to the conclusion that the petitioners failed to explain reasonably each and every days' delay, considering the fact that the sole plaintiff died on 10.9.2005. Even on that date, the first petitioner should have informed the Court that the sole plaintiff had died already. The Court below further came to the conclusion that the petitioners failed to explain reasonably each and every days' delay, considering the fact that the sole plaintiff died on 10.9.2005. Since no explanation has been given except stating that there is a mistake, the Court below did not find the explanation offered by the first petitioner as acceptable. There is no reason given as to why there was such a long delay in informing the counsel or the Court. The Court below came to conclusion that the delay has not been properly explained and therefore, the petitioners are not entitled to the discretionary equitable relief. The Court below concluded that the petitioners did not come to Court with clean hands and show bona fides, they will not be entitled to the equitable relief. On this premises, the application filed for condonation of delay of 1652 days equal to almost four and half years was dismissed. Challenging the same, the present civil revision petition has been filed. 5. Having gone through the various reasons stated by the Court below and also taking note of the various decisions cited by the learned counsel for the petitioners and the decision in C.Subramaniam - vs. - Tamil Nadu Housing Board reported in 2000(III) CTC 727 wherein several Apex Court's decision were cited, it is clear that Section 5 of the Limitation Act will enure to the benefits of the party who approaches the Court with sufficient cause coupled with no negligence or inaction or lack of bona fides. This has been the consistent view of the Court. 6. In the present case, the husband of the sole plaintiff had full knowledge of the death of his wife on 10.9.2005 participated in all proceedings including the proceeding to appoint an advocate commissioner which order came to be passed on 17.11.2009. Therefore, the conduct of the first petitioner in filing the proof affidavit showing as if the sole plaintiff was alive would clearly establish the lack of bona fides on the part of the first petitioner. Further, after the death of the sole plaintiff on 10.9.2005, there is a gross negligence and inaction on the part of the first petitioner for more than four and half years equivalent to 1652 days. Further, after the death of the sole plaintiff on 10.9.2005, there is a gross negligence and inaction on the part of the first petitioner for more than four and half years equivalent to 1652 days. The Court is unable to take a liberal view in the present case. The first petitioner has not shown the Court that there was sufficient cause for the delay in filing the application. The period of delay is also exorbitant and it will certainly cause prejudice to the respondent herein. 7. Furthermore, two vital facts which have been pointed out by the Court below clearly disentitles the petitioners to the discretionary remedy, namely, the passing of the order in I.A.No.830 of 2003 on 17.11.2009 appointing an advocate commissioner in which proceeding the death of the sole plaintiff was not informed and the proof affidavit filed on 9.3.2010 as if the sole plaintiff as alive would amounts to suppression of facts. However only on 23.3.2010, a memo has been filed when the case was taken for cross examination. This shows the lack of bona fides on the part of the petitioners. 8. For all the above stated reasons, this Court is not inclined to interfere with the impugned order of the Court below. 9. In the result, the order and decretal order of the learned District Munsif, Tiruvottiyur is confirmed. The Civil Revision Petition is dismissed at the admission stage.