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2014 DIGILAW 2653 (MAD)

Kavitha v. N. Usha

2014-08-18

V.M.VELUMANI

body2014
Judgment : 1. C.R.P.(MD) No.1192 of 2014 is filed against the order, dated 25.07.2013, made in I.A.No.114 of 2013 in O.S.No.119 of 2009, on the file of V Additional District Court, Madurai. C.R.P.(MD) No.1367 of 2014 is filed to direct the learned V Additional District Judge, Madurai, to dispose of the suit in O.S.No.119 of 2009, within a time frame to be fixed by this Court. C.R.P.(MD) No.1462 of 2014 is filed to set aside and revise the order, dated 13.02.2014, made in I.A.No.353 of 2012 in O.S.No.119 of 2009, on the file of V Additional District Court, Madurai. 2. The issues involved in all the three revision petitions are interlinked. Hence, common order is passed in all the three revision petitions. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit in O.S.No.119 of 2009. 3. The plaintiffs filed the suit in O.S.No.119 of 2009, on the file of Versus Additional District Court, Madurai, against the defendants. The plaintiffs filed the suit for partition and the suit was posted for trial on 16.02.2012. On that day, neither the plaintiffs nor their counsel were present. Therefore, the suit was dismissed for default. 4. The plaintiffs filed I.A.No.189 of 2012 to condone the delay in filing the application to restore the suit and also filed an application in I.A.No.353 of 2012, to restore the suit, which was dismissed for default on 16.02.2012. The application in I.A.No.189 of 2012 was allowed on payment of costs of Rs.1,000/-. As the first defendant refused to receive the cost, the said amount was deposited into Court. The first defendant in her counter affidavit filed in I.A.No.353 of 2012, pointed out that the said application was filed only against her as first defendant and other defendants were not made party to the said application. 5. The plaintiffs filed I.A.No.114 of 2013 to condone the delay of 359 days to restore the suit against the defendants 2 to 5. The plaintiffs submitted that due to typographical error, the defendants 2 to 5 were not impleaded as party respondents in I.A.No.353 of 2012 and the mistake is neither wilful nor wanton, but has occurred due to inadvertence. The plaintiffs filed I.A.No.114 of 2013 to condone the delay of 359 days to restore the suit against the defendants 2 to 5. The plaintiffs submitted that due to typographical error, the defendants 2 to 5 were not impleaded as party respondents in I.A.No.353 of 2012 and the mistake is neither wilful nor wanton, but has occurred due to inadvertence. The defendants 2 to 5 denied these allegations and stated that the plaintiffs have not given sufficient reason to condone the delay and in earlier application, which was filed by the previous counsel, it was stated that the Power of Attorney was suffering from Jaundice and taking native treatment. While in the present application after change of vakalath, has stated that the Power of Attorney was suffering from Typhoid and was hospitalised. The defendants 2 to 5 also stated that the Power of Attorney is not competent to file applications and the application is hit by Res judicata as per Order II Rule 2 of C.P.C. 6. The learned Judge, by the order, dated 25.07.2013, allowed I.A.No.114 of 2013, holding that the failure to implead the defendants 2 to 5 is only due to typographical error and without necessary parties, a partition decree cannot be executed. The learned Judge also imposed cost of Rs.500/- to be paid to the defendants. 7. Against the order, dated 25.07.2013, made in I.A.No.114 of 2013 in O.S.No.119 of 2009, the petitioners have filed C.R.P.(MD) No.1192 of 2014. 8. The learned Judge heard I.A.No.353 of 2012, filed to restore the suit in respect of the first defendant and I.A.No.241 of 2013, to restore the suit against the defendants 2 to 5, together. The learned Judge, by the common order, dated 13.02.2014, allowed both the applications and restored the suit against all the defendants. The learned Judge had held that the Power of Attorney has right to file Interlocutory Applications on behalf of the Principal and the relief being for partition, the parties have every right to file another suit and sufficient cause has been shown for the absence on 16.12.2014. For the above reasons and in order to prevent multiplicity of proceedings, the learned Judge allowed the applications. 9. Aggrieved by the said order, dated 13.02.2014, made in I.A.N0.353 of 2012 in O.S.No.119 of 2009, the first defendant has filed C.R.P.No.1462 of 2014. 10. For the above reasons and in order to prevent multiplicity of proceedings, the learned Judge allowed the applications. 9. Aggrieved by the said order, dated 13.02.2014, made in I.A.N0.353 of 2012 in O.S.No.119 of 2009, the first defendant has filed C.R.P.No.1462 of 2014. 10. Heard Ms.N.Juliet Latha, the learned counsel for the petitioners in C.R.P.(MD) Nos.1192 of 2014 and 1462 of 2014/the respondents in C.R.P.(MD) No.1367 of 2014 and Mr.R.G.Shankar Ganesh, the learned counsel for the respondents in C.R.P.(MD) Nos.1192 of 2014 and 1462 of 2014/the petitioners in C.R.P.(MD) No.1367 of 2014. 11. Learned counsel for the defendants/ petitioners in C.R.P.(MD) Nos.1192 of 2014 and 1462 of 2014 argued that the impugned orders of the learned Judge are illegal and two applications for condoning the delay to restore the suit are not maintainable. The learned Judge erred in holding that the plaintiffs have explained their absence. The learned Judge failed to note that the Power of Attorney gave two different reasons with regard to his illness for the delay. The learned counsel for the petitioners also contended that the applications are hit by the provisions of Order II Rule 2 of C.P.C. 12. The learned counsel for the petitioners/defendants relied on the following decisions:-(i) Coffee Board Vs. Ramesh Exports Pvt. Ltd., [2014 (3) CTC 728]. The relevant portion is extracted as under:- "10. ..... The object of Order 2, Rule 2 of the Code is two fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2, Rule 2 of the Code is to bar a plaintiff, who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action." (ii) Bajaj Auto Ltd., Vs. TVS Motor Company Ltd., [ 2010 (6) CTC 225 ]. The relevant portion is extracted as under:- "42. Order II, Rule 2 rest on the principle that the opposite party should not be vexed twice on the basis of a single cause of action. TVS Motor Company Ltd., [ 2010 (6) CTC 225 ]. The relevant portion is extracted as under:- "42. Order II, Rule 2 rest on the principle that the opposite party should not be vexed twice on the basis of a single cause of action. Sub-rule (1) of Rule 2 of Order 2 provides that every Suit shall include the whole of the claim in respect of the particular cause of action. Rule 2(2) deals with relinquishment of part of claim. similarly, sub-rule (3) of Rule 2 contains a legal bar to institute a second suit on the basis of the very same cause of action without the leave of the Court. The usual test for ascertaining as to whether the later suit is maintainable on account of the earlier suit is to find out the cause of action in both the Suits and in case the bunch of facts constituting the cause of action were the same in both the suits, the subsequent suit has to be axed at the threshold." (iii) Periyar Nagar Christian Association Vs. Periyar Nagar CSI Church and Others [ 2007 (1) MLJ 266 ]. The relevant portion is extracted as under: "23. Order 2 Rule 2 C.P.C. is designed to counteract two evils, namely, the splitting up of claim and splitting up of cause of action. For application of the bar, three essential conditions must be satisfied, namely, the earlier suit and the later suit must arise from the same cause of action, the two suits must be between the same parties and that the earlier suit must be decided on merits. ..." 13. On the other hand, the learned counsel for the respondents/plaintiffs argued that the orders of the learned Judge do not suffer from any irregularity or illegality and Order II Rule 2 C.P.C. is not applicable to the facts of the present case. The learned counsel also contended that the respondents have given proper reason and explained the delay at the time of trial. The learned counsel also contended that in a partition claim, dismissal of earlier suit is not a bar for the subsequent suit. 14. The learned counsel for the respondents/plaintiffs relied on the following decisions: (i) N.Balakrishan Vs. M.Krishnamurthy [1998 AIR (SCW) 3139]. The relevant portion is extracted as under:- "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. 14. The learned counsel for the respondents/plaintiffs relied on the following decisions: (i) N.Balakrishan Vs. M.Krishnamurthy [1998 AIR (SCW) 3139]. The relevant portion is extracted as under:- "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss. 14. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss. 14. In this case, explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rupees fifty thousand from the delinquent-advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that the appellant shall pay a sum of Rupees ten thousand to the respondent (or deposit it in this court) within one month from this date." (ii) Alka Gupta Vs. Narender Kumar Gupta [AIJO 2010 SC 984]. The relevant portion is extracted as under: "9. This Court in Gurbux Singh V. Bhoora Lal, AIR 1964 SC 1810 held: "In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out, (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."" (iii) Balamani and Another Vs. S.Balasundaram [ 2009 (4) MLJ 218 ]. The relevant portion is extracted as under: "12. .... S.Balasundaram [ 2009 (4) MLJ 218 ]. The relevant portion is extracted as under: "12. .... As such, both the decisions would highlight and spotlight the fact that in a partition suit, the cause of action is a continuing one and hence Order 9 Rule 9 of C.P.C. cannot be pressed into service. I would also like to agree with the said proposition, in view of the fact that the valuable right of a co-sharer should not be deprived because for one reason or other, the earlier suit might not have been able to be prosecuted further to its logical end." (iv) Chinnathayee Ammal Vs. Mottaya Gounder [ 1998 (3) MLJ 630 ]. The relevant portion is extracted as under: "9. ..... Applying the law laid down by the Apex Court as well as by this Court it is clear that when there is a competition between rendering substantial justice and bar of limitation imposed by the Limitation Act, the court should always keep in mind that it should approach the matter of condonation of delay with a view to rendering substantial justice to the parties. Learned counsel for the petitioner argued that the second defendant has deliberately delayed the proceedings and hence, he is not entitled to any indulgence of the Court in the matter of condonation of delay. But, in my view, when the delay is not deliberate, but due to the circumstances beyond his control which were explained properly either by oral or by documentary evidence before the trial court and when the trial Court accepted the evidence, the delay however long it may be, can be condoned, if the trial court has exercised its discretion properly, judicially and not arbitrarily and in the interest of justice." (v) Thaiyalnayaki (died) and Others Vs. Muthu [ 2014 (2) MLJ 445 ]. The relevant portion is extracted as under: "22. Under Article, 123 of Limitation Act, 1963 to set aside a decree passed ex-parte or to rehear and appeal decreed or heard ex-parte, the period of Limitation is 30 days. When Sec.5 of the Limitation Act is applicable, they should have filed an application to condone the delay in filing such application. The relevant portion is extracted as under: "22. Under Article, 123 of Limitation Act, 1963 to set aside a decree passed ex-parte or to rehear and appeal decreed or heard ex-parte, the period of Limitation is 30 days. When Sec.5 of the Limitation Act is applicable, they should have filed an application to condone the delay in filing such application. Therefore, to meet the ends of justice, this Court is of the view that the appellants must be given an opportunity to exercise their right under Section 5 of the Limitation Act to condone the delay in filing an application under order 41 rule 21 of CPC. Therefore, it is a fit case to be remanded back to give an opportunity for the appellants to approach the court below properly. 23. For the above reasons, both the appeals are allowed and orders dated 9.12.2011 and 10.12.2011 passed by the learned District Judge, Cuddalore, in unnumbered I.A. in O.S.No.39 of 2004 are set aside and remanded back to Court below and the appellants are directed to file an application to condone the delay between the date of judgment of the appeal till the date of filing of their application. On such filing, the court below is directed to order notice to the respondent and if satisfied that there is reasonable cause to proceed with passing of suitable orders and thereafter dispose the application filed under Order 22 rule 10 and order 41 rule 21 CPC accordingly. ..." (vi) R.M.Arunachalam Vs. PL.R.Arunachalam Chettiar and Others [AIJO 2000 MHC 717]. The relevant portion is extracted as under: "7. The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner loses all his rights in the suit and to avoid such calamities, the petitioners could not be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved." 15. I have considered the arguments of the learned counsel for the petitioners and the respondents, perused the materials on record and the Judgments relied on by the counsels. 16. From the Judgments referred to above, it is clear that in a partition suit even dismissal of earlier suit will not deprive the valuable right of co-sharer and necessary parties could be impleaded at any stage of the proceedings. Order 2 Rule 2 of C.P.C., is not applicable to the facts of the present case, as the earlier proceedings were not decided on merits. The petitioners failed to prove that after adjudication of earlier applications on merits, the present applications had been filed. 17. The respondents have given valid and sufficient reason for condoning the delay in filing the application to restore the suit, which was dismissed for default. 18. The learned Judge has properly considered all the materials on record and also the Judgments with regard to Order II Rule 2 C.P.C. The learned Judge properly exercised his power and allowed the applications especially when the respondents are not prohibited from initiating another suit for partition. 19. On consideration of the materials on record and the Judgments referred to above, I find no reasons to interfere with the order of the learned Judge and there is no irregularity in the order passed by the learned Judge. 20. In the result, C.R.P.(MD)Nos.1192 of 2014 and 1462 of 2014 are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed. 21. The plaintiffs in O.S.No.119 of 2009 filed C.R.P.(MD) No.1367 of 2014, for a direction to the learned V Additional District Judge, Madurai, to dispose of the suit within a time frame to be fixed by this Court. The learned counsel for the petitioners submitted that the learned Judge is not taking up the trial of the suit due to the pendency of C.R.P.(MD) Nos.1192 of 2014 and 1462 of 2014. As both the Civil Revision Petitions are dismissed, the learned V Additional District Judge, Madurai, is directed to dispose of the suit in O.S.No.119 of 2009, as expeditiously as possible, on day-to-day basis, in any event, not later than 30.10.2014. 22. With the above direction, C.R.P.(MD) No.1367 of 2014 is disposed of. No costs.