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2014 DIGILAW 19 (MAD)

Noorjahan v. Kannan

2014-01-03

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. This revision petition has been filed invoking the powers of superintendence of this court under Article 227 of the Constitution of India praying that the order of the learned District Munsif, Tiruchengode dated 10.11.2004 made in I.A.No.786/2003 in O.S.No.311/2002 on the file of the said court be set aside. 2. Notice before admission was given to the respondent and the respondent is also represented by a counsel. The arguments advanced by Mr. C.Kulanthaivel, learned counsel for the revision petitioner and by Mr. M.S. Palaniswamy, learned counsel for the respondent are heard. The grounds of revision, certified copy of the impugned order and the other documents produced in the form of typed set of papers are also perused. 3. The petitioner in the revision petition figured as the plaintiff in O.S.No.311/2002 on the file of the District Munsif, Tiruchengode, in which, she had prayed for a declaration that the sale deed executed by her in favour of the defendant/respondent herein on 20.09.2000 and registered as Document No.1077/2000 on the file of the Sub Registrar, Pallipalayam was null and void. She had also prayed for a permanent injunction against the respondent not to disturb her alleged possession and enjoyment of the suit property. 4. The suit was resisted by the respondent herein by filing a written statement. When the suit was ready for trial, the revision petitioner/plaintiff filed a Memo informing the court that the dispute was settled out of court and hence the suit might be dismissed as settled out of court. Accordingly, the learned trial judge, recorded the Memo and passed an order dismissing the suit as settled out of court. In addition, the trial court also passed an order for the refund of half of the court fee paid on the plaint. The said order dismissing the suit as settled out of court came to be passed on 13.01.2003. 5. Thereafter, the revision petitioner/plaintiff chose to go back from the said commitment of withdrawal of the suit on the ground that the dispute was not settled between the parties out of court and filed an application for reviewing the said order of dismissal of the suit as settled out of court, with a delay of 119 days. 5. Thereafter, the revision petitioner/plaintiff chose to go back from the said commitment of withdrawal of the suit on the ground that the dispute was not settled between the parties out of court and filed an application for reviewing the said order of dismissal of the suit as settled out of court, with a delay of 119 days. Hence the said Review Application was filed along with an application under Section 5 of the Limitation Act, 1963, which was taken on file by the trial court as I.A.No.786/2003 in O.S.No.311/2002. 6. The revision petitioner has furnished the extent of delay to be 112 days instead of 119 days. The revision petitioner chose to cast aspersion on the counsel engaged by her in the trial court and contended that the counsel engaged by her had kept her in dark regarding the dismissal of the suit as settled out of court after making a representation to the court for such a dismissal. The revision petitioner has stated the absence of knowledge of the order dismissing the suit as settled out of court till 28.04.2004, as the only reason for not filing the Review Application in time. However, the Review Application came to be filed with a delay, which necessitated the filing of I.A.No.786/2003 under Section 5 of the Limitation Act,1963 to condone the delay of 119 days in filing the Review Application. 7. The reasons assigned by the revision petitioner in her affidavit filed in support of the application filed before the trial court have been denied and disputed by the respondent herein by filing a detailed counter. The learned trial judge, after hearing both sides, dismissed the said application, namely I.A.No.786/2003, by order dated 10.11.2004. As against the dismissal of the said application filed under Section 5 of the Limitation Act, 1963, the revision petitioner chose to prefer an appeal in C.M.A.No.15/2008 on the file of the learned Subordinate Judge, Tiruchengode as if an appeal would lie against the said order. It is pertinent to note that the said Civil Miscellaneous Appeal came to be filed with a delay of about four years. The learned Subordinate Judge, Tiruchengode, dismissed the said Civil Miscellaneous Appeal on 28.02.2011 holding that the appeal was not maintainable. 8. It is pertinent to note that the said Civil Miscellaneous Appeal came to be filed with a delay of about four years. The learned Subordinate Judge, Tiruchengode, dismissed the said Civil Miscellaneous Appeal on 28.02.2011 holding that the appeal was not maintainable. 8. After suffering such a dismissal of the appeal in the hands of the learned Subordinate Judge, Tiruchengode, the revision petitioner has chosen to knock at the doors of this court with the present Civil Revision Petition challenging the order passed by the learned trial judge dated 10.11.2004 and not the order passed by the learned Subordinate Judge, Tiruchengode in C.M.A.No.15/2008. The same is the reason why the revision petitioner has not chosen to file the revision under Section 115 of the Civil Procedure Code. Even though an order passed in an application under Section 5 of the Limitation Act, 1963 is revisable under Section 115 of the Civil Procedure Code, fully conscious of the fact that if such a revision is filed under the appropriate provision, namely Section 115 of the Civil Procedure Code, she would have to file an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay explaining the enormous delay of 7 ½ years, the petitioner has chosen to invoke Article 227 of the Constitution of India, perhaps pursuant to an advice given to her to the effect that, if she would file a revision under the appropriate provision of the Code of Civil Procedure, she would not be in a position to explain the delay. 9. The revision petitioner has chosen to cast the blame on her counsel and contended that the counsel had reported settlement out of court without her knowledge. As rightly pointed by the learned counsel for the respondent, the same does not seem to be a bonafide contention for the simple reason that the order dismissing the suit as settled out of court was not merely based on an endorsement made by the counsel, but on the other hand, it was passed based on a Memo submitted by the counsel, in which the revision petitioner herself had affixed her signature. There could have been no occasion for her to affix her signature in such memo, if at all there was no settlement out of court. There could have been no occasion for her to affix her signature in such memo, if at all there was no settlement out of court. For the reasons best known to her, after having chosen to report settlement out of court and got an order for refund of the court fee, she has gone back form the same and filed an application for Review, that too with a delay, which was not properly counted and noted in the affidavit filed in support of the petition. After suffering an order of dismissal of the application in I.A.No.786/200, the petitioner could have very well filed a revision, as it was not one of the orders made appealable under Order XLIII of the Code of Civil Procedure. Still, the revision petitioner chose to prefer a civil miscellaneous appeal in order to purchase time and thereby the revision petitioner has caused the passage of nearly more than 7 ½ years. 10. After suffering an order of dismissal of the civil miscellaneous appeal holding the civil miscellaneous appeal to be not maintainable, the petitioner has not come forward with a revision under Section 115 of the Civil Procedure Code along with an explanation that she was bonafide and honestly prosecuting an erroneous proceedings in a wrong court. Has she done it, it could have been possible to hold that the petitioner's act in prosecuting an appeal before the Subordinate Judge was bonafide. The very fact that the petitioner has chosen to invoke Article 227 of the Constitution of India, will make it clear that throughout she has been acting with the advice of the legal brain throughout, in order to prevent a finality being attached to the litigation and thereby coercing the other party to come to terms with her. Hence this court comes to the conclusion that the revision filed invoking the Article 227 of the Constitution of India is liable to be dismissed. Accordingly, the civil revision petition is dismissed. However, there shall be no order as to costs.