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2014 DIGILAW 242 (MAD)

P. Sithivinayagam v. G. Bhoopalan

2014-01-31

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. Notice before admission was given to the respondent and both the parties are represented by counsel. 2. The arguments advanced by Mr.M.Mohamed Hasain, learned counsel for the petitioner and by Mr.L.Kishore, learned counsel for the respondent are heard. The grounds of revision, the copy of the order of the Court below and the other papers produced in the form of typed set of papers are also perused. 3. The plaintiff in the original suit O.S.No.5 of 2007 is the petitioner in the revision petition. He filed the suit for specific performance on the basis of the suit agreement for sale dated 10.01.2006 contending that out of the agreed sale consideration of Rs.3,00,000/-, Rs.2,90,000/- was paid on the date of agreement itself leaving a balance of Rs.10,000/- alone to be paid. It was also contended by the revision petitioner/plaintiff that though he was ready and willing to perform his part of the contract and expressed such readiness and willingness by issuing a notice, the respondent herein/defendant committed breach of contract, pursuant to which, he was constrained to file the suit for specific performance. The respondent herein/defendant, who admittedly received the summons, entered appearance by engaging a counsel and took time for filing written statement. When the suit stood listed on 02.07.2007, there was no representation for the respondent herein/defendant. Since written statement was not filed and there was no representation on the said date, the respondent herein/defendant was set ex-parte and an ex-parte trial was conducted, which resulted in a decree dated 05.07.2007, directing execution of the Sale Deed in terms of the suit agreement for sale. After the passing of the decree, the revision petitioner/plaintiff also deposited the balance amount of consideration. 4. Having suffered an ex-parte decree on 05.07.2007, the respondent herein/defendant waited for more than four years and filed an application under Order 9, Rule 13 C.P.C. on 15.07.2011 for setting aside the ex-parte decree dated 05.07.2007. After the passing of the decree, the revision petitioner/plaintiff also deposited the balance amount of consideration. 4. Having suffered an ex-parte decree on 05.07.2007, the respondent herein/defendant waited for more than four years and filed an application under Order 9, Rule 13 C.P.C. on 15.07.2011 for setting aside the ex-parte decree dated 05.07.2007. As the said application was not filed in time, I.A.No.115 of 2011 came to be filed under Section 5 of the Limitation Act for condoning the delay of 1486 days in filing the application under Order 9, Rule 13 C.P.C. The reason assigned by the respondent herein/defendant in the affidavit filed in support of his petition was that though he entered appearance engaging a counsel after receiving summons in the suit, he was affected by jaundice, for which he took native treatment at Paravai village in Nagapattinam Taluk, which resulted in his failure to file the written statement and the same ultimately resulted in the passing of an ex-parte decree in the said suit. Except the said statement that he was affected by jaundice and was taking native treatment, no other reason came to be assigned by the respondent herein/defendant. The reason assigned by the respondent herein/defendant in his affidavit was assailed to be false and invented for the purpose of the application by the revision petitioner in his counter statement. 5. The learned Subordinate Judge, Tiruvarur, who conducted an enquiry in the said application, made an observation in the following words:- "Naturally, the disease of Jaundice is much cruel and undetectable in prima stage. All of sudden will be come out then only it would be perceived. If it is so, how can be find out the impact of the ailments. But the reason of the petitioner to be established by way of documents. Suppose the document is not available, we can disbelieve the reason of the petition? When the evidence of P.W.1 disclosed the reason the days of delays are not material. But the reason for the delay is ought to be satisfied the requirement of leave. While my opinion and view that the reason for the delay is satisfied. I believed the reason of the delay with sting. Hence, the petition is allowed with the following condition that the petitioner is directed to pay a sum of Rs.1,000/- to the respondent as his cost on or before 24.11.2011. While my opinion and view that the reason for the delay is satisfied. I believed the reason of the delay with sting. Hence, the petition is allowed with the following condition that the petitioner is directed to pay a sum of Rs.1,000/- to the respondent as his cost on or before 24.11.2011. Failing which the petition will be stands dismissed. Call on 25.11.2011." 6. The revision petitioner/plaintiff was not willing to receive the cost and hence a lodgment schedule was filed on 25.11.2011 and with the permission of the Court the cost awarded was deposited into Court. Accordingly, the application was allowed and the delay of 1486 days in filing the application under Order 9, Rule 13 C.P.C. was condoned by the trial Court. As against the said order of the learned Subordinate Judge, Tiruvarur, the revision petitioner/plaintiff has come forward with the present revision under Article 227 of the Constitution of India on various grounds set out in the grounds of revision. 7. It is the contention of the learned counsel for the petitioner in the revision petition that the impugned order of the learned Subordinate Judge is an example of exercise of the power of the Court below with illegality and material irregularity without even considering the fact that the only reason assigned by the respondent herein/defendant, apart from being inadequate, was not substantiated by reliable evidence. The learned counsel for the revision petitioner submits that the learned Subordinate Judge simply accepted the interested testimony of the respondent herein without being corroborated by any other evidence and that the finding of the learned Subordinate Judge can even be termed perverse in the light of the observation made by the learned Subordinate Judge, which has been extracted above with all the mistakes found therein. The very observation made by the learned Subordinate Judge that jaundice is a cruel disease, undetectable in the primary stage and that only at a later stage it could be detected will go to show that the learned Subordinate Judge made up his mind to allow the petition and assigned a reason which is untenable without even being supported by any evidence. 8. 8. On the other hand, the learned counsel for the respondent/defendant would contend that the learned Subordinate Judge, on a thorough appreciation of the contentions made on both sides and after considering the veracity of the evidence adduced by P.W.1, came to a correct conclusion that the reason assigned by the petitioner was acceptable and that the delay, however inordinate, should have to be condoned. 9. The above said submissions made on both sides are taken into consideration by this Court. Upon such consideration, this Court is of the view that there is no substance in the contention made by the learned counsel for the respondent and on the other hand, the contention raised by the learned counsel for the revision petitioner cannot be rejected as untenable. The very fact that the respondent herein/defendant, after entering appearance in the suit by engaging a counsel, allowed the suit to be decreed as ex-parte on 05.07.2007 and kept quiet for more than four years thereafter will make it clear that the respondent/defendant was surely negligent in defending himself in the suit. Excepting the ipsi dixit of the respondent herein as P.W.1, there is no other supporting evidence to show that he was suffering from jaundice and the said disease was at an advance stage preventing him from going over to Tiruvarur to give instruction to his counsel for filing the written statement. Furthermore, in the affidavit, the date of decree has been wrongly furnished as 03.07.2007 whereas the decree came to be passed on 05.07.2007. The respondent herein/defendant failed to state exactly during which period he was affected by jaundice and was taking treatment. If at all the petitioner was affected by jaundice in 2007 itself and the said ailment continued for more than four years, his condition could have been critical and he could not have recovered from the ailment without proper treatment. Such a prolonged ailment (jaundice) without supported by any document regarding the treatment, was readily accepted by the learned Subordinate Judge. 10. Such a prolonged ailment (jaundice) without supported by any document regarding the treatment, was readily accepted by the learned Subordinate Judge. 10. As rightly pointed out by the learned counsel for the revision petitioner, disregarding the principles of law governing condonation of delay in filing the application to set aside the ex-parte decree, the learned Subordinate Judge chose to take a decision in favour of the respondent herein and thereafter, made an attempt to justify the decision by making an observation that the disease of jaundice was a cruel disease and it could not be detected at the primary stage and that it would suddenly erupt and could be perceived only at the advance stage. The said observation, as rightly contended by the learned counsel for the revision petitioner, is erroneous. It can even be said that the observation of the learned Subordinate Judge is perverse. Furthermore, the learned Subordinate Judge chose to give a finding that jaundice itself in fact could not be found out at the initial stage. The learned Subordinate Judge also gave a perverse finding that the reason assigned by the respondent herein could not be disbelieved simply because there was absence of any document to support his contention that he was suffering from jaundice and the same was the reason for his belated approach to the trial Court with an application to set aside the ex-parte decree. 11. The petitioner, who entered appearance in the suit in 2007 itself, could have very much known the consequence of his absence and non filing of the written statement. Still the respondent simply kept quiet for more than four years and came forward with the applications under Order 9, Rule 13 C.P.C. and under Section 5 of the Limitation Act with a singular reason that he was suffering from jaundice and was taking native treatment, without even specifying the period during which he was taking treatment for such an ailment. It is also pertinent to note that, according to the case of the petitioner, the agreed sale consideration was Rs.3,00,000/-, out of which, Rs.2,90,000/- was paid on the date of agreement itself, leaving a balance of only a sum of Rs.10,000/- to be paid and that the said amount was also deposited into Court after the passing of the ex-parte decree. 12. 12. The learned Subordinate Judge, without properly considering the fact that the respondent herein had not come forward with sufficient and reliable reasons to show that he was prevented by a reasonable cause from filing the application under Order 9, Rule 13 C.P.C., overlooked the inordinate delay of nearly four years in coming to the conclusion that the same stood explained by bare allegation that the respondent was suffering from jaundice for the entire stretch of the period. The very approach of the learned Subordinate Judge is erroneous and the order of the learned Subordinate Judge cannot stand the scrutiny of this Court. 13. The order of the learned Subordinate Judge allowing the application imposing a cost of Rs.1,000/- can be viewed as exercise of the jurisdiction conferred on the Subordinate Judge with illegality and material irregularity which is capable of being corrected by this Court in exercise of its revisional power. Moreover, this Court has to exercise proper control over the Subordinate Courts under Article 227 of the Constitution of India. The erroneous finding of the trial Court will have the effect of encouraging abuse of process of Court by unscrupulous litigations by simply avoiding coming to the Court, suffering a decree against them and approaching the Court belatedly with untenable grounds seeking an order condoning the inordinate delay. Viewed from any angle the order of the learned Subordinate Judge cannot be sustained and the same deserves to be set aside. 14. In the result, the revision succeeds and the Civil Revision Petition is allowed. The order of the trial Court dated 15.11.2011 made in I.A.No.115 of 2011 condoning the delay of 1486 days in filing the application to set aside the ex-parte decree is set aside. I.A.No.115 of 2011 shall stand dismissed. The unnumbered I.A. filed under Order 9, Rule 13 C.P.C. in O.S.No.5 of 2007 shall stand rejected as it has not been filed in time. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed. The respondent shall be permitted to withdraw the cost deposited by him before the trial Court.