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2014 DIGILAW 501 (MAD)

Saminathan v. Arokiasamy

2014-02-26

P.R.SHIVAKUMAR

body2014
Judgment : 1. The defendants 1 and 2 in the suit O.S.No.576/2004 filed by the respondent herein against the revision petitioners and three other persons Sahayamari, Anjalammal and Rosali, for the relief of partition and separate possession and also mesne profits, are the petitioners in the present civil revision petition. 2. The first petitioner/first defendant Saminathan and the first respondent/plaintiff Arokiasamy are the sons of late Raphael. The second petitioner/second defendant Lucia Mary is the wife of the first petitioner/first defendant. The other defendants, namely defendants 3 to 5 are the daughters of late Raphael. It is an admitted fact that late Raphael died intestate in 1996 and his wife Arputha Mary died intestate in 1997. It is also an admitted fact that the parties being Christians, the properties left by Raphael and late Arputha Mary are governed by Indian Succession Act, 1925 regarding succession. 3. As per the normal line of succession the first respondent/plaintiff Arokiasamy, first petitioner/first defendant Saminathan and the defendants 3 to 5, namely Sahaya Mary, Anjalammal and Rosali, would have been entitled to equal shares in the property left by late Raphael, since the share referable to Arputha Mary also would have equally devolved on the above said five persons as their children. However, contending that Sahaya Mary, Anjalammal and Rosali, namely the defendants 3 to 5, had orally relinquished their shares, the first respondent/plaintiff Arokiasamy claimed to be entitled to half share in the estate left by late Raphael. 4. Even as per the plaint averments, items 1 to 6 in the plaint 'A' schedule were the properties that came to late Raphael in a partition that took place between himself and his brothers 47 years prior to filing of the suit. Item Nos.7 and 8 in the plaint 'A' schedule, according to the plaint averments, were the properties purchased by late Raphael. However, the first respondent/plaintiff Arockiasamy contended that the immovable properties shown as items 9 to 11 in the plaint 'A' schedule were also the properties purchased by the first petitioner/first defendant in the name of his wife, namely the second petitioner/second defendant, from out of the income derived from the other properties and that hence in the said items also the first respondent/plaintiff was entitled to half share. Thus, besides claiming the properties purchased in the name of the second petitioner to be the common property of the first petitioner/first defendant and the first respondent/plaintiff, he had claimed that the shares of the defendants 3 to 5 in the suit property had been released by them in an oral arrangement and that hence the first respondent/plaintiff was entitled to half share and the rest belonged to the first petitioner/first defendant. The plaintiff was not confident of sustaining his stand. The same was the reason why he incorporated a plea in the plaint that even if his claim of relinquishment by defendants 3 to 5 is not accepted and they are found to be entitled to a share in the property, he would be satisfied, if 1/5th share is allotted to him. 5. Though all the defendants have entered appearance through counsel, the first defendant (the first petitioner alone) filed a written statement and the same was adopted by his wife, namely the second petitioner/second defendant. The other three defendants did not file any written statement and they were set ex-parte. Issues were framed based on the written statement of the first petitioner/first defendant, which was adopted by the second petitioner/second defendant. 6. When the case stood listed for trial and PW1 was examined in chief, the petitioners herein/defendants 1 and 2, did not cross examine the plaintiff's side witness and hence an ex-parte trial was conducted, in which PW1 was examined and Exs.A1 to A9 were marked. Based on the ex-parte evidence, the learned trial judge pronounced an ex-parte judgment simply stating that PW1 was examined and Exs.A1 to A9 were marked and the plaint averments were proved and that the suit was decreed as prayed for with cost. Based on the said judgment, a decree was drafted to the effect that a preliminary decree directing division of the suit properties into two equal shares and allotment of one such share to the plaintiff was passed. The decree also recited that the decision regarding mesne profits was relegated to a separate proceeding. Such an ex-parte decree came to be passed on 09.08.2006. 7. The decree also recited that the decision regarding mesne profits was relegated to a separate proceeding. Such an ex-parte decree came to be passed on 09.08.2006. 7. Subsequently, the petitioners herein/defendants 1 and 2, filed an un-numbered application under Order IX Rule 13 CPC to set aside the ex-parte preliminary decree along with an application under Section 5 of the Limitation Act to condone the delay of 222 days in filing the application under Order IX Rule 13 CPC. The said application under section 5 of the Limitation Act was taken on file as I.A.No.1396 of 2007. 8. The application was opposed by the respondent herein/plaintiff contending that the revision petitioners/defendants 1 and 2 left the suit to be decreed ex-parte on an earlier occasion in 2005 also and the said decree was subsequently set aside on an application filed by them; that though the revision petitioners had stated that they had gone to other stations to eke their livelihood, they did not mention the place to which they had gone and that the other averment that they came to know that an ex-parte preliminary decree had been passed only when they were able to meet their counsel, was false. It was the further contention of the respondent herein/plaintiff that the petitioners, who are in possession and enjoyment of the properties, wanted to squat on the properties without giving due share to the respondent/plaintiff by adopting such dilatory tactics. 9. Though the place to which they had gone to eke their livelihood had not been stated in the affidavit filed in support of the application under Section 5 of the Limitation Act, the first petitioner, who deposed as PW1, stated that they had gone to Bangalore and the letters written by their counsel did not reach them and that the same was the reason for the belated approach made by them to set aside the ex-parte preliminary decree. 10. The learned trial judge, after hearing, passed an elaborate order holding that the delay in filing the application to set aside ex-parte decree had not been properly explained and that hence the petition was liable to be dismissed. Accordingly, the learned trial judge dismissed the application I.A.No.1396/2007 on 15.04.2009. As against the said order, the present civil revision petition has been filed. 11. Accordingly, the learned trial judge dismissed the application I.A.No.1396/2007 on 15.04.2009. As against the said order, the present civil revision petition has been filed. 11. The arguments advanced by Mr.V.Raghavachari, learned counsel on record for the petitioner and by Mr.J.Ramakrishnan, learned counsel on record for the respondents are heard. The records summoned from the lower court have also been perused. 12. While dealing with an application to set aside the ex-parte decree and an application to condone the delay in filing the application to set aside the ex-parte decree, the court must not show rigidity and on the other hand, its approach should be some what flexible to give a chance to the persons, who had suffered the ex-parte decree, to have a contested verdict in the suit, provided there is no clinching evidence to show that they had caused the delay to gain advantage. 13. In this case, the delay in filing the application under Order IX Rule 13 CPC was 222 days alone. The said delay was sought to be explained by stating that the petitioners, due to drought, had gone to Bangalore to eke their livelihood; that due to the said reason the letters written by their counsel did not reach them and that they came to know the fact that an ex-parte preliminary decree had been passed when they met their counsel. However the fact remains that the suit was decreed ex-parte on 09.08.2006 and the application to set aside the ex-parte decree along the an application under Section 5 of the Limitation Act came to be filed on 27.04.2007 itself and in that process there occurred a delay of 222 days in filing the application to set aside the ex-parte decree. 14. The learned counsel for the petitioners submitted that the petitioners had to verify the records and then prefer the application. However, in the affidavit filed in support of the application, the first petitioner had stated on his coming back to his native place prior to the filing of the petition, he met the counsel and got the news from him that the suit had been decreed ex-parte. However, in the affidavit filed in support of the application, the first petitioner had stated on his coming back to his native place prior to the filing of the petition, he met the counsel and got the news from him that the suit had been decreed ex-parte. The learned trial judge has been misled by the assumption that the affidavit sworn on 08.08.2008 was the affidavit filed in support of the application and the same made the trial judge to make an observation that he had notice of the ex-parte decree on 20.05.2008 itself. But in fact the said affidavit happened to be an affidavit filed as a proof affidavit of PW1 filed in the enquiry in the application and the same was mistaken to be an affidavit filed in support of the application resulting in a false assumption that the application itself was filed on 08.08.2008. 15. Again, though the plaint averments are not certain as to the extent of the share, the ex-parte judgmnet does not say which of the averments - whether the plaintiff was entitled to half share or the plaintiff was entitled to 1/5th share? - stood proved. Without application of mind, a non-speaking judgment came to be passed by the trial judge. It was not made clear as to whether the main plea or alternative plea was proved. While drafting the decree, that aspect was not gone into and the decree was drafted as per the prayer made in the plaint. This aspect was also not considered by the court below. 16. Considering the above said facts, this court is of the considered view that though the reasons assigned by the petitioners for the delay might not have been fully satisfactory, in the facts and circumstances of the case, the court below ought to have chosen to give an opportunity to the revision petitioners/defendants 1 and 2 to contest the case. For all the reasons stated above, this court comes to the conclusion that the order of the learned trial judge is infirm and defective and hence liable to be set aside in exercise of the power of revision of this court. In the result, the civil revision petition is allowed. The order of the learned Principal District Munsif, Thirukoilur dated 15.04.2009 made in I.A.No.1396/2007 in O.S.No.576/2004 is set aside. In the result, the civil revision petition is allowed. The order of the learned Principal District Munsif, Thirukoilur dated 15.04.2009 made in I.A.No.1396/2007 in O.S.No.576/2004 is set aside. The trial court is directed to take up application under Order IX Rule 13 CPC and dispose of the same at the earliest, in any event not later than two months from the date of receipt of a copy of this order. However, there shall be no order as to cost. Consequently, the connected miscellaneous petition is closed.