Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 1252 (MAD)

C. R. Boopathy v. V. S. Singaravelu

2014-06-11

R.KARUPPIAH

body2014
Judgment : 1. The civil revision petitioners, who are the defendants in the original suit filed this civil revision petition against the dismissal order dated 23.03.2009 passed in I.A.No.97 of 2008 in O.S.No.46 of 2003 on the file of the Sub Court, Thiruvallur. 2. For the sake of convenience, the defendants in the suit are referred as the revision petitioners and the plaintiff in the suit is referred as the respondent hereinafter. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 4. The respondent herein filed a suit in O.S.No.46 of 2003 for specific performance of an agreement of sale dated 20.03.2003. In the above said suit, the revision petitioners have filed a detailed written statement on 21.01.2004. Since the revision petitioners have not appeared before the trial Court, an exparte decree was passed on 27.10.2004. On the basis of the exparte decree, the respondent herein filed an execution petition in E.P.No.33 of 2006 on 10.03.2006. In the above said execution petition, the revision petitioners filed a vakalath on 16.08.2007. 5. On 20.02.2008, the revision petitioners filed a petition in I.A.No.97 of 2008 under Section 5 of Limitation Act to condone the delay of 1151 days in filing the petition under Order 9 Rule 13 of Civil Procedure Code. The affidavit filed by the revision petitioners in which it is stated that the first petitioner could not attend the Court on 27.10.2004 as he was bedridden due to jaundice. It is also averred in the affidavit that the respondent herein was negotiating through Mediators to settle the dispute amicably and to receive the amount due to him. But, the respondent filed an execution petition in E.P.No.33 of 2006 and therefore, prayed for to condone the delay of 1151 days in filing the petition under Order 9 Rule 13 C.P.C. 6. In the above said petition, the respondent herein filed a counter, in which, it is stated that the petitioners have not given sufficient reasons for the delay of 1151 days and the respondents has denied the alleged mediation or negotiation. Further, it is stated that the revision petitioners are bound to explain each and every day delay. It is also averred in the counter that the revision petitioners have entered into appearance in the execution proceedings as early as on 19.09.2007. Further, it is stated that the revision petitioners are bound to explain each and every day delay. It is also averred in the counter that the revision petitioners have entered into appearance in the execution proceedings as early as on 19.09.2007. Therefore, this petition is not filed with bonafide intention and the petition filed only to drag on the proceedings. Therefore, prayed for dismissal of the petition. 7. The trial Court has considered both sides submissions and finally dismissed the above said petition. Aggrieved over the above said dismissal order of the trial Court, this revision petition has been filed by the revision petitioners, who are the defendants 1 and 2 in the main suit. 8. Learned counsel appearing for the revision petitioners would submit that the second petitioner is son of the first petitioner and the first petitioner filed an affidavit on behalf of the second petitioner also. The learned counsel appearing for the revision petitioners further submitted that the revision petitioners are not accepted the validity and genuineness of the agreement of the sale. Since the first revision petitioner was bedridden due to jaundice and also the respondent was negotiating through Mediators to settle the dispute, the delay has been occurred. 9. The learned counsel appearing for the respondent would submit that the revision petitioners entered into an agreement of sale with the respondent to sell the suit property on 23.03.2000. Since the revision petitioners have not executed the sale deed, the respondent herein sent a legal notice on 10.02.2003. After receipt of the above said notice, the revision petitioners have not sent any reply and not executed the sale deed. Therefore, the respondent has filed the suit on 20.03.2003 for specific performance of contract as per agreement of sale. The learned counsel appearing for the respondent would submit that in the above said suit, the revision petitioners have appeared through counsel and filed a written statement on 21.1.2004 in which, they have admitted the execution of sale, but denied the validity of the agreement of sale and receipt of sale consideration. Learned counsel also submitted that in the above said suit, the plaintiff's witness was examined in chief on 27.09.2004 and for cross examination adjourned to several dates i.e. 5.10.2004, 12.10.2004, 18.10.2004 and finally 27.10.2004. Learned counsel also submitted that in the above said suit, the plaintiff's witness was examined in chief on 27.09.2004 and for cross examination adjourned to several dates i.e. 5.10.2004, 12.10.2004, 18.10.2004 and finally 27.10.2004. Inspite of it, the revision petitioners have not chosen to appear before the Court in person or through counsel for cross examination of the witness. Therefore, the trial Court has passed an exparte decree on 27.10.2004. Learned counsel further submitted that as per the decree, the respondent herein filed an execution petition in E.P.No.33 of 2006 on 10.03.2006 and the revision petitioners have engaged a counsel and filed vakalath in the execution proceedings on 16.08.2007. After six months, only on 20.02.2008 the petition in I.A.No.97 of 2008 filed to condone the delay of 1151 days to set aside the exparte decree. Therefore, the above said petition is liable to be dismissed, since it is filed only to drag on the proceedings and not given sufficient reason for the delay as rightly held by the trial Court. Therefore, there is no need to interfere with the above said findings of the trial Court. 10. Admittedly, the respondent has filed a suit in O.S.No.46 of 2003 on 20.03.2003 and in the above said suit, both the revision petitioners have appeared through counsel and filed the written statement also on 21.01.2004. It is also admitted fact that PW1 was examined in chief on 27.09.2004 and posted several hearings for cross examination of PW1 by the revision petitioners but the revision petitioners have not appeared. Therefore, the trial Court has passed the exparte decree on 27.10.2004. 11. As per the above said decree, the respondent has filed an execution petition in E.P.No.33 of 2006 on 10.03.2006. After receipt of the notice in the execution proceedings, the revision petitioners have engaged counsel and filed vakalath on 16.08.2007. The revision petitioners have not filed any petition to set aside the exparte decree immediately after filing the vakalath in the execution proceedings. After six months only on 20.02.2008, the petition in I.A.No.97 of 2008 to condone the delay of 1151 days to set aside the exparte decree filed by the revision petitioners. 12. The reasons given by the revision petitioners for the delay of more than three years are that the first revision petitioner was bedridden due to jaundice and also negotiating through the Mediators to settle the dispute amicably. 12. The reasons given by the revision petitioners for the delay of more than three years are that the first revision petitioner was bedridden due to jaundice and also negotiating through the Mediators to settle the dispute amicably. Except the averments made in the affidavit, there is no reliable evidence to prove the above said facts. The revision petitioners contented that they negotiated with the respondent for settlement through Mediators but the revision petitioners have not stated the name of the Mediators in the affidavit and also not examined the above said Mediator to prove the same. Except the oral averments that the first revision petitioner affected by jaundice, absolutely there is no other proof for the same. Further, no reason has been stated in the affidavit, why the second revision petitioner has not appeared in the above said suit or filed the petition within time. The second petitioner has not filed any affidavit explaining the delay. 13. The learned counsel appearing for the revision petitioners relied on three decision reported in (1) Subramani and others v. Ramasamy and another [2007(2)CTC 429]; (2)Improvement Trust, Ludhiana v. Ujagar Singh and others [ (2010)6 SCC 786 ] and (3) A.Seyed Hakim and others v. K.S.Maideen and another [2012(1)CTC 801]. In support of his contention, the learned counsel would submit that in view of the law laid down in the above said decisions, normally the delay should be condoned and allowed the parties to contest the case on merits rather than to throw it on such technicalities and therefore, prayed for to condone the above said delay. 14. Per contra, the learned counsel appearing for the respondent relied on a decision of this Court reported in R.Jagadeesan (died), 2.Sakunthala 3.Magendran 4.Parthipan (cause title accepted vide order of this Court dated 26.11.2009 in M.P.No.1 of 2009) v. Santhakumari [2012(1)CTC 849] wherein this Court has relied on a decision of the Hon'ble Supreme Court reported in N.Balakrishnan v. M.Krishnamoorhty [1998 (2) CTC 533 (SC)]. The learned counsel for the respondent further submitted that the explanation for the delay given in the petition is to be justifiable and it should be based on just and reasonable cause and also it should not be a party to resort to dilatory tactics and therefore, the present petition has been filed only to drag on the proceedings and hence, it is liable to be dismissed. 15. 15. A perusal of all three decisions relied on by the revision petitioners revealed that the delay has been properly explained by the petitioners. But, in the instant case the revision petitioners have not pleaded and proved the sufficient reasons for the abnormal delay in filing the petition and therefore, the above said facts of the decisions are not applicable to the facts of the present case. 16. As rightly pointed out by the learned counsel appearing for the respondent, the revision petitioners have engaged counsel and appeared in the above said suit and filed written statement. After that they have not chosen to appear before the trial Court more than three years without sufficient reasons and hence, the delay cannot be condoned. 17. The learned counsel appearing for the revision petitioners would submit that the suit relates to a valuable property and the respondent has obtained the agreement of sale without paying amount and therefore, an opportunity should be given to contest the above said suit. But, considering the abnormal delay in filing the petition and the petitioner not proved the delay by acceptable reasons, this Court is of the view that the delay cannot be condoned as rightly held by the trial Court. 18. In the result, the civil revision petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.