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2013 DIGILAW 3729 (MAD)

K. Kantha Rao v. Murugesa Reddy

2013-10-29

B.RAJENDRAN

body2013
Judgment : 1. This Civil Revision Petition is directed against the order dated 12.01.2010 made in I.A. No. 60 of 2007 in O.S. No. 57 of 2003 passed by the learned Subordinate Judge, Thiruvallur, by which the application filed by the revision petitioner for condoning the delay of 703 days in filing an application to set aside the exparte decree, was dismissed. 2. The respondent herein, as plaintiff, has filed the suit in O.S. No. 57 of 2003 for specific performance of the agreement dated 25.04.2001 and for possession before the learned Subordinate Judge, Thiruvallur. The suit was decreed exparte on 16.09.2003 for non-appearance of the revision petitioner/defendant. To set aside the exparte decree dated 16.09.2003, the revision petitioner has filed I.A. No. 60 of 2007 under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the exparte decree dated 16.09.2003. The trial court refused to condone the delay and dismissed the application against which the present Civil Revision Petition is filed. 3. The learned counsel for the revision petitioner would contend that the court below did not take into consideration that the defendant/revision petitioner herein was not served any notice or summons in the suit. For the first time, a notice was served on the petitioner in the Execution Petition filed by the respondent before the District Munsif Court, Tiruttani. The learned counsel for the revision petitioner brought to the notice of this Court that in the affidavit filed in support of I.A. No. 60 of 2007, the revision petitioner has categorically stated that he is permanently residing at Bangalore, a chronic cardiac patient and he was advised to take complete bed rest. Therefore, according to the counsel for the revision petitioner, immediately after receipt of the notice in the Execution Petition, the revision petitioner could not file the application to set aside the exparte decree and therefore, the delay is neither wilful nor wanton. According to the counsel for the revision petitioner, the court below, without taking note of the above reasons assigned by the revision petitioner has summarily rejected the application thereby refused to give an opportunity to the revision petitioner to defend the suit on merits. According to the counsel for the revision petitioner, the court below, without taking note of the above reasons assigned by the revision petitioner has summarily rejected the application thereby refused to give an opportunity to the revision petitioner to defend the suit on merits. The learned counsel for the petitioner also would contend that the learned Subordinate Judge, Thiruvallur has no jurisdiction to pass the impugned order and it is only the District Munsif, Tiruttani has got jurisdiction to entertain the application due to enhancement of the pecuniary jurisdiction and therefore also, the impugned order passed by the court below is liable to be set aside. 4. Per contra, the learned counsel for the plaintiff/respondent would mainly contend that the petitioner has approached the Court with unclean hands by suppressing the factum of service of notice. According to the counsel for the plaintiff/respondent, even in the suit, notice was served as early as 06.08.2003 and this was also recorded by the court below in the impugned order. Therefore, such a contention urged on behalf of the revision petitioner is incorrect. The learned counsel for the respondent also submits that on 12.08.2003 and 10.09.2003 the revision petitioner did not appear and therefore, the hearing of the suit was adjourned to 16.09.2003. On 16.09.2003, due to nonappearance of the revision petitioner, he was set exparte and an exparte decree was passed. After a long delay, the Execution Petition was filed before the District Munsif, Tiruttani. After filing the Execution Petition, the territorial jurisdiction was enhanced and therefore the Execution Petition was transferred to the Subordinate Judge, Thiruvallur. Even after receipt of notice in the execution petition, the revision petitioner did not file the application to set aside the exparte decree within 30 days and it was filed with a delay of 703 days. Even in the application for condonation of delay, the petitioner did not pay batta for a long time and therefore the application was earlier dismissed for default and it was restored at the instance of the revision petitioner by filing I.A. No. 353 of 2009. As far as the jurisdiction of the learned Subordinate Judge, Thiruvallur is concerned, it cannot be agitated by the revision petitioner at this point of time. The execution Petition was filed before the District Munsif Court, Tiruttani and subsequently, it stood transferred not for want of jurisdiction but due to enhancement of pecuniary jurisdiction. As far as the jurisdiction of the learned Subordinate Judge, Thiruvallur is concerned, it cannot be agitated by the revision petitioner at this point of time. The execution Petition was filed before the District Munsif Court, Tiruttani and subsequently, it stood transferred not for want of jurisdiction but due to enhancement of pecuniary jurisdiction. At the time when the suit was filed, the Subordinate Judge, Thiruvallur had jurisdiction to try the suit and therefore, the suit was rightly filed before the Sub Court, Thiruvallur. Later on, as per the amendments made to the Tamil Nadu Court Fee and Suit Valuation Act, the pecuniary jurisdiction was enhanced and it was the District Munsif Court, Tiruttani which had jurisdiction to entertain the Execution Petition. Thereafter, the Execution Petition was transferred and posted before the Sub Court, Thiruvallur. The revision petitioner did not file an application to condone the delay before the District Munsif Court, Tiruttani but he filed it only before the Subordinate Judge, Thiruvallur and subjected himself to the jurisdiction of the learned Subordinate Judge, Thiruvallur. In any event, the delay was not properly explained to the satisfaction of the court below and therefore the court below rightly dismissed the application. There is no error of jurisdiction and the learned Subordinate Judge has jurisdiction to pass the order in the application for condonation of delay. 5. I heard the counsel for both sides and perused the material records placed. At the outset, let me deal with the application filed by the revision petitioner for condonation of delay and examine whether the delay was properly explained. The suit was instituted by the respondent herein before the Sub Court, Thiruvallur for specific performance of the agreement dated 25.04.2001 and for consequential relief. In the suit, summons were served on the defendant/revision petitioner herein on 06.08.2003, but he did not appear before the Court below when the suit was taken up for hearing on 12.08.2003 and 10.09.2003. On 10.09.2003, the hearing was adjourned to 16.09.2003, on that date, due to non-appearance of the defendant/revision petitioner herein, an exparte decree was passed. Therefore, as rightly pointed out by the court below, the revision petitioner has filed a false affidavit stating as though notice was not served on him in the suit. 6. On 10.09.2003, the hearing was adjourned to 16.09.2003, on that date, due to non-appearance of the defendant/revision petitioner herein, an exparte decree was passed. Therefore, as rightly pointed out by the court below, the revision petitioner has filed a false affidavit stating as though notice was not served on him in the suit. 6. The revision petitioner has filed the application in I.A. No. 60 of 2007 for condonation of delay of 703 days in filing the application to set aside the exparte decree. According to the revision petitioner, he suffered from cardiac ailment and therefore he could not file the application seeking to condone the delay in time. In order to prove this averment, the revision petitioner has not produced any documentary evidence, much less any record to show his ailment or any doctor certificate has been produced. The revision petitioner also did not examine any witness to substantiate the averments made in I.A. No. 60 of 2007 and the reasons assigned for delay. 7. In the execution petition No. 21 of 2007, notice was served on the revision petitioner by the District Munsif Court in the year 2007. After receipt of the notice in the execution petition, the revision petitioner did not immediately file the petition to set aside the exparte decree passed in the suit on 16.09.2003. Rather, the revision petitioner filed application with a delay of 703 days. Even after filing this petition, the petitioner did not take any steps to pay batta to serve notice on the other side, with the result, the application was dismissed for default on 19.06.2009. Therefore, to restore the application in I.A. No. 60 of 2007, which was dismissed for default on 19.06.2009, the revision petitioner filed I.A. No. 353 of 2009 and it was allowed on 05.01.2010 restoring I.A. No. 60 of 2007. This is evident that the revision petitioner has successfully dragged on the proceedings and prevented the court below from proceeding with the Execution Petition filed by the respondent herein. This is also evident that the revision petitioner was not diligent enough in defending the suit filed against him by filing a written statement. 8. In so far as jurisdiction is concerned, originally, the suit was filed before the Sub Court, Thiruvallur, which has got jurisdiction to entertain the suit. This is also evident that the revision petitioner was not diligent enough in defending the suit filed against him by filing a written statement. 8. In so far as jurisdiction is concerned, originally, the suit was filed before the Sub Court, Thiruvallur, which has got jurisdiction to entertain the suit. Subsequently, after amendment, the District Munsif Court, Tiruttani vested with the jurisdiction and therefore, the Execution Petition was filed before the District Munsif Court, Tiruttani. Even the application for condonation of delay was not filed before the District Munsif Court, Tiruttani but before the Sub Court, Tiruttani and thereby the revision petitioner subjected himself to the jurisdiction of the Sub Court, Thiruvallur without raising any plea relating to jurisdiction. Therefore, at this stage, it is not open for the revision petitioner to raise the plea regarding the jurisdiction of the Sub Court, Thiruvallur to pass the impugned order. In this context, it will be relevant to refer to the decision of this Court reported in (Akkammal vs. Kullampattiyan and others) AIR 1956 Madras 593 (Vol.43, C.187 Nov.(1) wherein this Court held that when no objection as to the jurisdiction of the court having been raised in the first instance, then the Court has to take into consideration whether the merits of the case has been affected or not. In the present case, the question of merits of the case cannot be said to be affected in any manner. In this case, what is required to be examined is whether the order of dismissal passed by the court below, without considering the plea of jurisdiction, has prejudiced the revision petitioner or not. As mentioned above, the petitioner himself subjected to the jurisdiction of the Sub Court, Thiruvallur and therefore, it is not open to the petitioner at all to raise such plea with regard to jurisdiction. In the above circumstance, I hold that the petitioner is not in any way prejudiced by passing the impugned order by the learned Subordinate Judge, Thiruvallur inasmuch the revision petitioner himself subjected to the jurisdiction of the said Court. 9. In the decision reported in (Mantoo Sarkar vs. Oriental Insurance Company Limited and others) (2009) 2 Supreme Court Cases 244, the Honourable Supreme Court had considered identical question relating to jurisdiction. In that case, the appellant sustained injuries while travelling in a bus at Faridpur, Uttar Pradesh. 9. In the decision reported in (Mantoo Sarkar vs. Oriental Insurance Company Limited and others) (2009) 2 Supreme Court Cases 244, the Honourable Supreme Court had considered identical question relating to jurisdiction. In that case, the appellant sustained injuries while travelling in a bus at Faridpur, Uttar Pradesh. The appellant filed a Claim Petition in the Tribunal at Nainital. On behalf of the Corporation, the plea with regard to jurisdiction of the Tribuanl was raised by the Corporation and it was rejected by the Tribunal while awarding compensation. On appeal, the High Court reversed the order passed by the Tribunal. On further appeal to Supreme Court, the Honourable Supreme Court held that there was no pleading raised with respect to sufferance of prejudice by the respondents, while so, on the ground of jurisdiction, the High Court ought not to have reversed the order of the Tribunal. In the present case also, the revision petitioner has not raised any ground with regard to prejudice and the revision petitioner subjected himself to the jurisdiction of the Sub Court, Thiruvallur. 10. The learned counsel appearing for the revision petitioner relied on the decision of this Court reported in (Sivabakkiyam Muthusamy Trust rep. by its Trustees Dr. S. Natesan and another vs. S. Sivasankaran and another) (2012) 5 MLJ 977 wherein a plea was raised before this Court with regard to jurisdiction. This Court held that any order passed by a Court, which has got no jurisdiction, will be a nullity. It was further held that because of the erroneous exercise of jurisdiction, the appellant therein had lost one right of appeal to District Court and his consequential right for filing a second appeal has got extinct. This decision cannot be made applicable to the facts of the case because, in this case, the Subordinate Judge, Thiruvallur has got jurisdiction to entertain the Execution Petition besides that the revision petitioner himself subjected to such jurisdiction and proceeded further. Further, by the impugned order passed by the Court below, the revision petitioner has not lost any appeal remedy. If the order in question is passed either by the Subordinate Judge, Tiruvallur or by the District Munsif Court, Tiruttani, the only recourse available to the revision petitioner is to file a Civil Revision Petition before this Court. Further, by the impugned order passed by the Court below, the revision petitioner has not lost any appeal remedy. If the order in question is passed either by the Subordinate Judge, Tiruvallur or by the District Munsif Court, Tiruttani, the only recourse available to the revision petitioner is to file a Civil Revision Petition before this Court. Therefore, the decision relied on by the counsel for the revision petitioner cannot be made applicable to the facts of this case. 11. For all the above reasons, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.