Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1375 (MAD)

Rajammal v. Rajagopal

2013-03-19

S.MANIKUMAR

body2013
Judgment :- 1. Being aggrieved by the dismissal of an application in I.A.No.530 of 2010 in O.S.No.46 of 2005 on the file of the District Munsif, Tirupur, refusing to condone the delay of 733 days in filing an application to set aside an exparte decree, passed on 28.04.2006, the revision petition has been filed. 2. The revision petitioner is the second defendant in the suit. Her husband, N.Mariappan, is the third defendant in the suit. The suit has been filed, by the first respondent, Rajagopal, for a delcaration of title to the suit property and for a further direction to the second defendant, Mrs. Rajammal, to hand over possession of the property to the plaintiff, failing which to enable the plaintiff to take possession through the process of court. The plaintiff has also sought for a direction to the defendants 2 and 3, to pay damages of Rs.7,200/-, for use and occupation of the suit property for three years, till the date of suit, with future interest at 12% p.a. and also for a direction to the abovesaid defendants to pay future damages at Rs.200/-p.m., from the date of plaint, till the date of delivery of possession of the suit property. 3. Material on record discloses that the suit was posted for filing the written statement on 28.04.2006. Written statement was not filed by the defendants. Hence, the suit came to be decreed exparte on 28.04.2006. Contending inter alia that the revision petitioner was affected by jaundice, since 15.03.2006 and therefore, both the revision petitioner and her husband/third defendant in the suit, had gone to Kollam, State of Kerala, to get treatment and on account of such illness, she had even lost her eyesight and only on 15.04.2008, she could recover from the illness and in the abovesaid circumstances, she could not appear on 28.04.2006 and file her written statement and that her absence was due to the abovesaid bonafide reasons, the revision petitioner has prayed to condone the delay of 733 days. 4. According to the revision petitioner, her husband being a lorry driver, was in Gujarat for sometime and in the abovesaid circumstances, both of them could not contact their counsel and instruct him to file the written statement. It is her further contention that she came to know about the exparte decree only when she received notice in the execution petition in E.P.No.15 of 2008. It is her further contention that she came to know about the exparte decree only when she received notice in the execution petition in E.P.No.15 of 2008. In the abovesaid circumstances, she has prayed to condone the delay of 733 days in filing an application to set aside the exparte decree. 5. Opposing the application, the plaintiff/decree holder has submitted that the ailment and treatment, are not substantiated by any medical evidence or by production of travel tickets, and that each days delay has not been explained. The decree holder has further submitted that the application for condonation lacks bonafides and it has been filed only to protract the proceedings. It is also submitted that the said application has been filed only after receipt of notice, in the execution petition. For the abovesaid reasons, the decree holder/first respondent, has prayed for dismissal of the condoned delay petition. 6. Upon consideration of pleadings and submissions and placing reliance on the followings decisions in Gomathi Ammal v. Madhusoodanan Nair and another, 1997 (1) CTC 651 , P.R.Subdaravadanam and 2 others v. P.R.Vimala and Another, 1997(1) CTC 147 , Muthusamy v. Indian Overseas Bank, alangulam, through its Branch Manager, 1998(1) CTC 348 , Kandaswamy and four others v. Krishnamandiram Trust, Karur by its Trustees, T.N.Rajagopal Naidu and 33 others, 2001(4) CTC 722 , Reliance Industries Limited, rep. By Reliance Consultancy Services Limited, 2001(3)CTC 321,, the court below has found that there was no bonafides on the part of the revision petitioner and that the reason assigned, was also not supported by any medical record. In fine, holding that there was no sufficient cause shown for condonation, the court below has dismissed the petition filed under section 5 of the Limitation Act. 7. Assailing the correctness of the impugned order, Mrs. V.Usha Rani, learned counsel for the revision petitioner submitted that the court below has failed to consider that the revision petitioner was taking ayurvedic treatment in the State of Kerala and therefore, there was no possibility of any documentary proof for the kind of treatment taken by her. 7. Assailing the correctness of the impugned order, Mrs. V.Usha Rani, learned counsel for the revision petitioner submitted that the court below has failed to consider that the revision petitioner was taking ayurvedic treatment in the State of Kerala and therefore, there was no possibility of any documentary proof for the kind of treatment taken by her. According to her, when the revision petitioner was affected with jaundice, and also lost her eyesight to certain extent, due to the severity of the ailment, the court below ought to have considered the bonafides of the revision petitioner, instead of approaching the case, alleging slackness on the part of the revision petitioner/second defendant in the suit. Learned counsel for the revision petitioner further submitted that vakalat on behalf of all the defendants, was entrusted to the same counsel. According to her, the revision petitioner is a tenant under the temple and rent has been paid to the temple, periodically. She also submitted that when the rent control proceedings for eviction was taken by the respondent herein, the same was defended on the ground that the respondent is not the landlord of the suit property and that therefore, in the absence of establishing the jural relationship of landlord and tenant, the rent control proceedings instituted by the first respondent claiming himself to be the landlord, was negatived and that R.C.O.P.No.32 of 1996, has been dismissed. She also submitted that thereafter, the respondent has preferred R.C.A.No.16/1998, and that the same also came to be dismissed. In the light of the claim of the 1st respondent, as the owner of the property, already negatived by the authorities, under the Rent Control Act, learned counsel for the revision petitioner submitted that an opportunity ought to have been given by the court below to the revision petitioner to contest the suit on merits. She also submitted that the revision petitioner, has been residing in the suit property for several years and for the mistake committed, in not filing the written statement, she should not be deprived of her opportunity to defend the suit on merits, subject to even payment of cost. 8. Opposing the relief sought for in the revision petition, Mr. She also submitted that the revision petitioner, has been residing in the suit property for several years and for the mistake committed, in not filing the written statement, she should not be deprived of her opportunity to defend the suit on merits, subject to even payment of cost. 8. Opposing the relief sought for in the revision petition, Mr. S.K.Rakhunathan, learned counsel for the first respondent submitted that the court below, on proper appreciation of facts and circumstances, and after considering the principles of law to be taken note of, while considering an application to condone the delay in filing the application to set aside an exparte decree, has passed a reasoned order, and that when the court below has categorically found that there was no bonafide and lack of evidence to substantiate the cause shown for the absence and the delay in taking effective steps to set aside the exparte decree, a well considered order does not require interference. In this context, learned counsel for the respondent took this court through the impugned order. For the above said reasons, he prayed for dismissal of the revision. 9. Heard the learned counsel for the parties and perused the material available on record. 10. The revision petitioner is the second defendant in the suit. The third respondent in the present petition is the husband of the revision petitioner. The second defendant, is the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples, Tirupur. In the suit, all the three defendants have engaged the same counsel. For filing the written statement, the suit was posted to 28.04.2006. Written statement has not been filed by the defendants. It is the case of the revision petitioner/second defendant that she was suffering from jaundice from 15.03.2006 till 15.04.2008 and that she was confined to bed for the entire period and therefore, she could not instruct the learned counsel appearing for her, to file the written statement. It is also her further contention that her husband had gone to Gujarat and hence, he could not contact the counsel. According to the revision petitioner/second defendant, she came to know about the exparte decree only on receipt of notice in E.P.No.15/2008 and thus, there was a delay of 733 days, in filing application to condone the delay, to set aside the exparte decree. 11. According to the revision petitioner/second defendant, she came to know about the exparte decree only on receipt of notice in E.P.No.15/2008 and thus, there was a delay of 733 days, in filing application to condone the delay, to set aside the exparte decree. 11. Perusal of the impugned order shows that defendants 1 and 3, both appeared before the court through a counsel on 26.04.2005. Thereafter, they were set exparte on 30.11.2005, for non filing the written statement. At that time, the revision petitioner/second defendant was not served with the suit summons and therefore a publication has been ordered. After publication, the revision petitioner/second defendant was set exparte, for non appearance on 06.04.2006. Thereafter, for not filing the written statement, the suit has been decreed on 28.04.2006. From the above, it could be seen that when the husband of the revision petitioner the third defendant in the suit, had received summons from the same residence, and entered appearance through a counsel on 26.04.2005, the revision petitioner/second defendant could not be served. Even as per the averments made in the supporting affidavit for condonation, the revision petitioner was affected by jaundice, only from 15.03.2006, and not earlier, the suit summons in respect of defendants 1 and 3 viz., the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples, Tirupur and Mr. Marimuthu @ Mariappan, husband of the revision petitioner, have been served as early as on 26.04.2005. Some of the decisions relied on by the court below, are extracted hereunder: (i) In 1997(1) CTC 651 , Gomathi Ammal v. Madhusoodanan Nair and another, this Court has held as follows, "-Condonation of delay in filling application to set aside exparte decree – sufficient cause for condoning delay – Failure to adduce evidence for non-appearance and seeking condonation of delay on vague allegation of illness and mere production of medical certificate are not sufficient to condone the delay – Party should get into witness box to speak about case as evidenced by medical certificate – No sufficient cause is made out for condoning delay. ii) In 1997 (1)CTC 651 , P.R. Subdaravadanam and 2 others v. P.R. Vimala and Another, 1997(1) CTC 147 , Muthusamy v. Indian Overseas Bank, alangulam, through its Branch Manager, this Court has held as follows, - Condonation of delay- Exercise of discretion- discretion under this section has to be exercised judicially and not arbitrarily- one of the persons approaching court is a widow and as such she could not effectively take steps in time is not a sufficient cause for condoning delay – Order condoning delay of 3,670 days set aside. iii) In 1998(1)CTC 348, Muthusamy v. Indian Overseas Bank, Alangulam, through its Branch Manager, this Court has held as follows: “Bonafide of petitioner-Discretionary power of Court-Exercise of-Trial Court set aside exparte decree in 1993-Suit was posted for trial and adjourned thrice to give opportunity to defendant-Defendant did not appear on all date of hearings-Counsel made endorsement “no instruction”-Defendant was made exparte-Present application to set aside exparte with condoning delay of 410 days was field- False statement as to date of receipt of notice was given – Discretionary power of court need not be excercised in favour of the petitioner since defendant did not act bonafide as he did not appear on 3 hearing dates and was placed exparte twice – Refusal of court to condone delay is proper. iv) InKandaswamy and four others v. Krishnamandiram Trust, Karur by its Trustees, T.N.Rajagopal Naidu and 33 others, 2001 (4) CTC 722 , this court has held as follows: “-Petition to condone delay of 797 days in filing petition to set aside exparte decree filed on ground that petitioner did not have knowledge about exparte decree-Affidavit filed in support of petition did not contain any other reason-Petitioner examined himself as witness in said petition and in deposition admitted that he knew about decree in 1994 itself and yet he could not file petition to set aside such decree in 1994 as he could nto mobilise other petitioners-Court would normally construe section 5 liberally and condone delay unless gross negligence or deliberate inaction or lack of bonafide is imputable to party seeking condonation of delay-Conduct of petitioner in keeping quite for over two years only on account of inability to mobilise other petitioner evidences gross negligence, irresponsible inactive attitude of petitioner and petition lacked bonafides-Delay cannot be condoned.” (v) In 2001(3) CTC 321 , Reliance Industries Limited rep. By Reliance Consultancy Services Limited v. M.Rajkumari, this court has held as follows, “Exparte decree passed in suit on 12.01.1998-Application to set aside exparte decree filed on 01.03.1999-Defendants admitted in affidavit that they came to know about exparte decree on 1.4.98 when plaintiff communicated same-Plaintiff had corresponded with defendants legal unit on 4.11.98 and on other dates-Defendants did not give any reason for not filing application between 1.4.98 to 1.3.99-Defendant failed to give even plausible explanation for delay-Order of trial Court rejecting application to condone delay in filing petition to set aside exparte decree confirmed.” 12. Material on record discloses that though the revision petitioner has inter alia contended that she was taking treatment in Kerala from 15.03.2006 to 15.04.2008, as observed by the court below, no medical records have been produced to prove that she stayed at Kerala, for such a long period or any record to prove treatment. The contention that for native treatment, no records could be produced, cannot be accepted, for the reason that, as rightly observed by the Court below, not even a single scrap of paper has been produced before the lower Court. 13. Yet another aspect considered by the court below is that when the petition to condone the delay of 733 days in filing the petition to set aside the exparte decree was filed, in the year 2008, the same has been returned for some reasons. Thereafter, the revision petitioner has filed I.A.No.741/2009 for condonation of delay of 347 days in representing the returned petition. The said petition has been allowed. The suit is for declaration and for recovery of possession. The revision petitioner/first defendant in the suit, has not adduced any evidence and her husband, the third respondent in this revision petition/third defendant, who has entered appearance, also has not substantiated the cause shown, i.e., he was in Gujarat. Husband of the petitioner, could have taken steps to file his written statement or steps to set aside the exparte order passed against him, as early as on 30.11.2005. Though the revision petitioner is stated to have filed a written statement along with the condone delay petition, the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples, Tirupur, has not filed any written statement, accepting the landlord-tenant relationship between temple and the revision petitioner. Though the revision petitioner is stated to have filed a written statement along with the condone delay petition, the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples, Tirupur, has not filed any written statement, accepting the landlord-tenant relationship between temple and the revision petitioner. As stated supra, the rent control proceedings did not find favour with the first respondent, on the sole ground that there was a dispute as regards ownership. The dispute which was raised in the rent control proceedings, was whether the temple is the owner of the property or the first respondent, in this revision petition. As rightly contended by the first respondent that when the rent control proceeding instituted, for eviction, was dismissed, accepting the objections regarding the jural relationship of the first respondent and the revision petitioner, naturally, the first respondent, would be driven to institute a suit for declaration and recovery of possession, in respect of the suit schedule mentioned property by impleading, the Executive Officer of Arulmigu Visweswara and Arulmigu Veeraraghava Perumal Temples. Even after receipt of the summons, the second defendant, the Executive Officer has remained absent and for not filing the written statement, the suit has been decreed on 28.04.2006. the temple has not objected to the claim of the 1st respondent. If the property belonged to the temple, the Executive Officer of Arulmighu Veeraraghava Perumal Temple, would have filed a written statement objecting to the claim of the 1st petitioner regarding the ownership of the property by the 1st respondent. 14. From the material on record, it could be also seen that though the revision petitioner herein, has filed an application, to set aside the exparte decree, the temple has not come forward to prefer any application to set aside the decree of declaration. 15. In the light of the discussions and decisions stated supra, this court is of the view that even though an exparte decree has been passed in the year 2006, the revision petitioner, has moved the application only in the year 2010, after four years from the date of decree. There is no bonafide and the reasons for condonation have not been substantiated. The civil revision petition is dismissed. No costs. The connected miscellaneous petition is closed.