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2014 DIGILAW 481 (MAD)

Thambiyappan @ Subramani v. K. Rathinavelu

2014-02-25

P.R.SHIVAKUMAR

body2014
Judgment : 1. Thambiyappan @ Subramani, the first defendant in O.S.No.157 of 2005 on the file of the Court of District Munsif, Thirupattur, Vellore District is the petitioner in the revision petition. K.Rathinavelu, the plaintiff in the said suit is the respondent in the revision petition. 2. The respondent herein filed the above said suit against the revision petitioner and eight other persons for declaration of his title and permanent injunction against the defendants not to disturb his peaceful possession and enjoyment of the suit properties. In the said suit, one Sivaprakasam, who is none other than the son of the revision petitioner, had been arrayed as the 9th defendant and he filed a written statement contending that he had purchased the suit property from the other defendants, namely defendants 1 to 8 and was in peaceful possession and enjoyment of the same. It was also contended therein that neither the respondent herein/plaintiff nor the other defendants (D1 to D8), including the revision petitioner herein, did have any right, title or possession in respect of the suit property and that the said suit came to be filed based on forged documents and false averments. Out of the 9 defendants, 4th defendant Kaliyammal died. Second defendant Masilamani and the six defendant Aanchi did not enter appearance and failed to contest the case. Hence, they were set ex parte. All other defendants, including the revision petitioner, entered appearance by engaging one Mr.T.Sridharan, Advocate. Since they did not file written statement, after several extensions of time came to be given, the defendants 1, 3, 5 and 6 to 9 were set ex parte on 28.04.2006. After setting them ex parte, the suit was adjourned to 09.06.2006 for recording ex parte evidence. On 09.06.2006, ex parte trial was conducted in which the plaintiff appeared as PW1 and 8 documents were marked as Exs.A1 to A8. Based on the said evidence, the learned trial Judge decreed the suit as prayed for with costs by judgment and decree dated 09.06.2006. 3. Thereafter, A petition came to be filed as I.A.No.901 of 2006. Such petition was filed under Order IX Rule 13 CPC to set aside the ex parte decree dated 09.06.2006 without any vakalat being filed on behalf of D2 (Masilamani) and D6 (Aanchi) and also showing D4 (Kaliyammal) as petitioner No.4 and stating within brackets against her name "died". 3. Thereafter, A petition came to be filed as I.A.No.901 of 2006. Such petition was filed under Order IX Rule 13 CPC to set aside the ex parte decree dated 09.06.2006 without any vakalat being filed on behalf of D2 (Masilamani) and D6 (Aanchi) and also showing D4 (Kaliyammal) as petitioner No.4 and stating within brackets against her name "died". However, the learned counsel for the plaintiff made an endorsement praying time for filing counter and at the same time stating that the petition might to be allowed on terms. 4. The learned trial Judge passed a conditional order on 29.01.2007 allowing the said application I.A.No.901 of 2006 on condition that a sum of Rs.250/- should be paid to the plaintiff on or before 06.02.2007. The said costs was not paid. When the matter was again called on 07.02.2007, it was reported on behalf of the plaintiff that the condition was not complied with and the cost awarded therein was not paid. Recording the same, the learned trial Judge dismissed the said application by order dated 07.02.2007. Thereafter, without disclosing the same and suppressing the fact that his earlier petition filed along with the other defendants had been dismissed, another petition came to be filed as I.A.No.1038 of 2007 for the very same relief, namely to set aside ex parte decree dated 09.06.2006 along with I.A.No.1037 of 2007 under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the ex parte decree. In order to avoid unnecessary delay, the trial Court took the application filed under Section 5 of the Limitation Act on file as I.A.No.1037 of 2007 and the application filed under Order IX Rule 13 CPC as I.A.No.1038 of 2007. 5. After hearing, the learned trial Judge, held that the second application filed in suppression of the dismissal of the earlier application was not maintainable and dismissed I.A.No.1037 of 2007 by order dated 31.01.2008. Consequent to the dismissal of I.A.No.1037 of 2007, the application filed under Order IX Rule 13, namely I.A.No.1038 of 2007 was also dismissed. As against the order dismissing I.A.No.1037 of 2007, the present revision came to be filed by the first defendant alone on various grounds set out in the grounds of revision. 6. The arguments advanced by Mr.V.Lakshminarayanan, learned counsel for the revision petitioner were heard. 7. As against the order dismissing I.A.No.1037 of 2007, the present revision came to be filed by the first defendant alone on various grounds set out in the grounds of revision. 6. The arguments advanced by Mr.V.Lakshminarayanan, learned counsel for the revision petitioner were heard. 7. During his arguments the learned counsel for the revision petitioner contended that the trial Court committed an error in dismissing the application filed by the revision petitioner to condone the delay in filing the application to set aside the ex parte decree, citing the dismissal of an application filed by the 9th defendant as a bar for the application filed by the revision petitioner. The said contention was raised on the basis of his assertion that the revision petitioner was not a party to the earlier application filed under Order IX Rule 13 which was numbered as I.A.No.901 of 2006 and that the said application was filed only by the 9th defendant and not by the other defendants. It was also contended that the revision petitioner/first defendant was not a party in the said former application. In support of his contention, the learned counsel for the revision petitioner pointed out the copy of the written statement filed by the 9th defendant Sivaprakasam along with the application I.A.No.901 of 2006. 8. This Court, finding certain discrepancies in the typed-set of papers, wanted to verify the correctness or otherwise of the said contention made by the learned counsel for the revision petitioner and hence the entire records in O.S.No.157 of 2005 on the file of the District Munsif Court, Thirupathur were sent for. This Court entertained a doubt that the documents included in the typed-set of papers could not be true copies as certified by the counsel for the revision petitioner. Such doubt arose mainly because in the first document, namely copy of the plaint, all the 9 defendants were shown as "plaintiff" and the plaintiff Rathinavelu was shown as "defendants". The exact cause title in vernacular is extracted hereunder: m/t/157=2005 (“TAMIL”) 9. Such doubt arose mainly because in the first document, namely copy of the plaint, all the 9 defendants were shown as "plaintiff" and the plaintiff Rathinavelu was shown as "defendants". The exact cause title in vernacular is extracted hereunder: m/t/157=2005 (“TAMIL”) 9. The plaintiff in the suit was shown in the copy of the plaint included in the typed-set of papers as "defendants" with a plural noun as "gpujpthjpfs", whereas defendants, who were 9 in number, were shown as plaintiff with a designation in singular as "plaintiff" (thjp)/ After the same was pointed out, the learned counsel for the revision petitioner chose to file an additional typed-set of papers in which the cause title had been corrected correctly describing Rathinavelu to be the plaintiff and all the above said 9 persons as defendants. Of course, the copy of the written statement included in the typed-set of papers and additional typed-set of papers contained a short cause title without giving the full description of the parties. The short cause title provided therein reads as follows: (“TAMIL” However, the written statement was titled as written statement filed by the 9th defendant. Based on the same alone, learned counsel for the petitioner contended that the earlier petition I.A.No.901 of 2006 was filed only by Sivaprakasam, the 9th defendant and the revision petitioner was not a party in that application. However, in the copy of the said application, names of all the defendants were found noted as petitioners. Even in the copy of the subsequent application, namely I.A.No.1037 of 2007, the cause title has been provided as follows: (“TAMIL”) Only in the copy of the counter statement filed by the plaintiff the words (“TAMIL”) meaning "and others" came to be omitted and the copy of the order included in the typed-set of papers also is to the effect that the revision petitioner (first defendant) alone was the petitioner in the said I.A.No.1037 of 2007. It added fuel to the suspicion of this Court and that was the reason why this Court chose to send for the entire records for verification. 10. On verification of the records, after the receipt of the same from the Court below, this Court found that the earlier application I.A.No.901 of 2006 was filed in the name of all the defendants including those who were deceased. Of course, the same was supported by the affidavit of the 9th defendant. 10. On verification of the records, after the receipt of the same from the Court below, this Court found that the earlier application I.A.No.901 of 2006 was filed in the name of all the defendants including those who were deceased. Of course, the same was supported by the affidavit of the 9th defendant. When the same was pointed out, learned counsel for the revision petitioner made an attempt to contend that the revision petitioner (first defendant) did not engage the counsel engaged by the 9th defendant and that there was no vakalat given by him in favour of the said counsel. It was also contended that the written statement filed by the 9th defendant was not adopted by the revision petitioner/first defendant, even though it might have been adopted by the other defendants. Such an irresponsible contention came to be raised on behalf of the revision petitioner which is found to be totally against the facts. Even before the defendants were set exparte and the matter was posted for ex parte evidence, a vakalat was filed by Mr.T.Sridharan, advocate on behalf of the first defendant Thambiyappan @ Subramani (revision petitioner), third defendant (Kesavan), fifth defendant (Hanumuthan @ Saminathan), seventh Defendant (Settu), eighth defendant (Babu) and ninth defendant (Sivaprakasam). It is pertinent to note that the vakalat contains the signatures of all the six persons mentioned above, authorizing the said advocate to appear on their behalf. The first name is the name of the revision petitioner. The previous application I.A.No.901 of 2006 came to be filed not in the name of Sivaprakasam (D9) alone but in the names of all the 9 defendants including the 4th defendant, who was no more. Of course the said application could not be taken as filed by D2 (Masilamani), D4 (Kaliammal) and D6 (Aanchi) as there is no vakalat filed on their behalf and the above said advocate Sridharan did not have authorization to file the petition on their behalf. However, regarding the other defendants, especially the revision petitioner herein/D1, Thambiyappan @ Subramani, the advocate was authorized and he held vakalat for him also. 11. The written statement of 9th defendant had been filed along with said application. However, regarding the other defendants, especially the revision petitioner herein/D1, Thambiyappan @ Subramani, the advocate was authorized and he held vakalat for him also. 11. The written statement of 9th defendant had been filed along with said application. Though Mr.Sridharan advocate held Vakalat for 6 persons, namely D1, D3, D5, D7, D8 and D9 alone, in the endorsement adopting the written statement on behalf of the others, he had mistakenly noted that it was adopted by defendants 1 to 3 and 6 to 8. As pointed out supra, D2 and D6 were not represented by him and on the other hand, D5 was represented by him. Hence, the endorsement should have been made on behalf of D1, D3, D5, D7 and D8 alone. Despite the said mistake, it is patent that the revision petitioner/first defendant was very much represented by the said advocate Mr.Sridharan and the written statement of D9 was adopted by D1 also. 12. In the said application, namely I.A.No.901 of 2006, leniency was shown by passing a conditional order allowing the said petition on condition that the plaintiff should be paid a sum of Rs.250/- as costs. A paltry sum of Rs.250/- ordered to be paid as costs was not paid and they allowed the said application to be dismissed. Thereafter, suppressing the said fact, a fresh application I.A.No.1038 of 2007 to set aside the very same ex parte decree along with I.A.No.1037 of 2007 to condone the delay in filing the application under Order IX Rule 9 CPC. The contention of the revision petitioner that the said petition came to be filed by the revision petitioner, namely the first defendant alone also turns out to be false. The same was filed through the very same advocate Mr.T.Sridharan. In the cause title, the applicants were described as Thambiyappan @ Subramani and others. Still, such an unethical attempt was made in this Civil Revision Petition, which this Court highly deprecates. Having failed to comply with the condition imposed in the earlier application for setting aside the ex parte decree and having allowed it to be dismissed, the second attempt made by filing a fresh application suppressing the fact of dismissal of earlier application is nothing but an abuse of process of Court. 13. The learned trial Judge, on proper appreciation, came to a correct conclusion that the application I.A.No.1037 of 2007 deserved dismissal. 13. The learned trial Judge, on proper appreciation, came to a correct conclusion that the application I.A.No.1037 of 2007 deserved dismissal. The learned trial Judge also consequently dismissed the other application, namely I.A.No.1038 of 2007. The revision petitioner has chosen to file the present revision by falsely representing that application No.1037 of 2007 was filed only by the first defendant, the revision petitioner herein. There is also confusion in the cause title of the revision petitioner. All those discrepancies are viewed as an attempt to confuse and get an order by hook and crook. The said attempt, at troubling the water and fishing out of it, is to be countered with strict measures like awarding exemplary costs. 14. In view of the forgoing discussions, this Court comes to the conclusion that there is no merit in the revision and the revision deserves to be dismissed with exemplary costs. Since the respondent has not entered appearance in the revision, such costs should be directed to be paid to the State Legal Services Authority. In the result, the civil revision petition is dismissed. The revision petitioner is directed to pay a sum of Rs.5,000/- as costs to the Tamil Nadu State Legal Services Authority, Chennai. Connected M.P.No.1 of 2013 is also closed.