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2012 DIGILAW 291 (MAD)

Natarajan v. Manu Pillai

2012-01-19

R.S.RAMANATHAN

body2012
Judgment :- 1. The plaintiff in O.S.No.33 of 2003 on the file of the Subordinate Court, Gingee, is the revision petitioner. The above suit was filed for partition and the respondents who are defendants, were served, but they remained ex-parte and an ex-parte decree was passed on 24.04.2003. Thereafter, final decree application was filed and the defendants were served and the respondent herein who was the first defendant, remained ex-parte and notice was issued against the other defendants. At this juncture, the respondent/first defendant filed I.A.No.41 of 2010 under Section 5 of the Limitation Act, to condone the delay of 1836 days in filing an application to set aside the ex-parte decree passed against him, and that petition was allowed by the lower Court on payment of cost of Rs.10,000/- and that order is challenged in this revision. 2. It is submitted by Mr.M.Ravichander, learned counsel for the revision petitioner, that the Court below, having found that the respondent has filed the affidavit containing incorrect statement and having held that the respondent has filed the application only with the intention of delaying the passing of final decree, ought not to have exercised the discretion in favour of the respondent and ought to have dismissed the application and he relied upon the judgment of the Honble Supreme Court reported in 2008(5) CTC 663, in support of his contention. 3. Learned counsel for the respondent submitted that as per the order of the Court below, the cost was deposited into the Court and the lower Court has rightly exercised the discretion and condoned the delay and that cannot be interfered in the revision by this Court and being a suit for partition, no prejudice would be caused to the revision petitioner in permitting the respondent to proceed with the suit on merits and therefore, the revision is liable to be dismissed. 4. I am unable to accept the contention of the learned counsel for the respondent and in my opinion, the Court below erroneously exercised the discretion conferred on it in condoning the delay of 1836 days in filing the application to set aside the ex-parte decree. 4. I am unable to accept the contention of the learned counsel for the respondent and in my opinion, the Court below erroneously exercised the discretion conferred on it in condoning the delay of 1836 days in filing the application to set aside the ex-parte decree. It is the contention of the learned counsel for the respondent that suit summons were not served on him and therefore he was not able to appear before the Court and only on receipt of summons in final decree application, he came to know about the ex-parte preliminary decree passed against him, and immediately thereafter, he took steps to file the application to condone the delay in filing the application to set aside the ex-parte preliminary decree. The Court below, on the basis of the records available before it, gave a finding that the contention of the respondent that summons were not served on him cannot be accepted and summons were served on the respondents directly on 13.03.2003, and therefore, the allegation made in the affidavit regarding service of summons, is a false one. Further, final decree application was served on the respondent on 21.01.2009 and the case was adjourned to 11.02.2009 and 11.03.2009 and the respondent did not appear on those days and he was set ex-parte. Further, it is found by the Court below that the respondent is in possession and enjoyment of the property and the respondent with an intention of prolonging the litigation, deliberately did not appear in Court. Therefore, having held that the respondent has sworn to false affidavit and taking advantage of his possession of the property, with an intention of prolonging the litigation, the respondent did not appear before the Court below, the Court below ought not have exercised the discretion. Further, in the Judgment reported in 2008 (5) CTC 663, the Honble Supreme Court has observed as follows which applies to the facts of the case in all four corners: "... There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the Court. There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the Court. In our considered opinion incorrect statement made in the Application seeking condonation of delay itself is sufficient to reject the Application without any further inquiry as to whether the averments made in the Application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay [See:Binod Bhari Singh v. Union of India, 1993 (1) SCC 572 ]. (12.).. ... ... It is true that the power to condone the delay rests with the Court in which the Application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior Court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the Court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior Court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court." Therefore, as held by the Honble Supreme Court, the Court below has not exercised the discretion conferred on it, but wrongly exercised the discretion in favour of the respondent and hence the order of the Court below is liable to be set aside. 5. In the result, the Civil Revision Petition is allowed and the order of the lower Court is set aside. No costs. Consequently, connected miscellaneous petition is closed.