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2014 DIGILAW 523 (MAD)

Venkatachalapathy v. Vijaya

2014-02-27

P.R.SHIVAKUMAR

body2014
Judgment : 1. The 3rd defendant in O.S.No.85/2002 on the file of the learned Subordinate Judge, Tiruppattur is the petitioner in the civil revision petition. The plaintiffs 1 and 2 in the above said suit are the respondents 1 and 2 in the civil revision petition. 2. The above suit was filed by the respondents herein against Hanumakkal, Raniyammal, Venkatachalam (revision petitioner herein) and Nallannan, ranking them as defendants 1 to 4 respectively, for the relief of partition claiming ½ share (2/4 share) in the suit property and for permanent injunction against the defendants 1 and 2 from alienating or encumbering or leasing out the suit property to the defendants 3 and 4 or to any other third party. The defendants 1 and 3 alone entered appearance through a counsel by name Thiru.S.Nandivarman, advocate and they filed a written statement. The other two defendants, namely defendants 2 and 4 did not enter appearance and they were set ex-parte. 3. Based on the averments made in the plaint and the averments made in the written statement of defendants 1 and 3, issues were framed and the suit came to be listed for trial on 20.09.2007. The trial started, PW1 was examined in chief and Exs.A1 to A4 were marked on the side of the plaintiffs. The learned counsel for the defendants 1 and 3 did not cross examine PW1 on 20.09.2007 and hence the case was adjourned to 27.09.2007 for cross examination of PW1. Again on 27.09.2007, PW1 was not cross examined and hence the suit was adjourned to 5.10.2007. On 5.10.2007, the Judge was on leave and hence the case was re-posted to 11.10.2007. On 11.10.2007, though PW1 was present, none of the defendants was present and there was no representation on their behalf. Even then, the trial court chose to adjourn the case to 23.10.2007 and on 23.10.2007, since the defendants did not come forward to cross examine PW1, the learned trial judge made an observation that the plaint averments and the facts deposed by PW1 in his chief examination stood admitted by the defendants. 4. Based on the said observation, the learned trial judge held the plaintiffs to be entitled to 2/4, in other words ½ share in the suit property. 4. Based on the said observation, the learned trial judge held the plaintiffs to be entitled to 2/4, in other words ½ share in the suit property. Accordingly, the trial court granted a preliminary decree for partition directing the suit properties to be divided into four equal shares and allotment of two such shares to the plaintiffs. The relief of permanent injunction against the defendants 1 and 2 not to alienate, encumber or lease out the suit properties either to the defendants 3 and 4 or to any other third party was also granted. 5. Thereafter, the plaintiffs filed I.A.No.154/2008 praying for passing of a final decree in accordance with the preliminary decree dated 31.10.2007. In the said final decree application, the revision petitioner/3rd defendant entered appearance and filed a counter statement. During the pendency of the application for passing final decree, Hanumakkal, the first defendant died. As her son Chinnaiyan had already died, his wife Raniyammal (daughter in law of Hanumakkal), who was already there on record as second defendant, was recorded as the legal representative of Hanumakkal also and consequential amendment was also made in I.A.No.154/2008 by virtue of an order passed in I.A.No.84/2010. While the final decree application was pending, the revision petitioner/3rd defendant alone preferred an application (un-numbered) under Order IX Rule 13 CPC arraying the plaintiffs alone as respondents to set aside the preliminary decree dated 31.10.2007 with a delay of 1726 days. As the said un-numbered application was filed with such a delay it was filed along with an application under Section 5 of the Limitation Act, 1963 to condone the delay of 1726 days in filing the application under Order IX Rule 13 CPC. The said application filed under Section 5 of the Limitation Act was taken on file by the trial court as I.A.No.200/2012. The said application was resisted on the basis of the counter statement of the second respondent/second plaintiff, which was adopted by the first respondent/first plaintiff. The learned trial judge, after hearing both sides, came to the conclusion that the delay in filing the application to set aside the ex-parte decree had not been properly explained and based on such finding, dismissed the said application by an order dated 19.02.2013. The said order of the learned trial judge by which I.A.No.200/2012 came to be dismissed, is challenged in the present civil revision petition. 6. The said order of the learned trial judge by which I.A.No.200/2012 came to be dismissed, is challenged in the present civil revision petition. 6. Notice before admission was given to the respondents and the respondents have entered appearance through counsel. The arguments advanced by Mr.K.Kannan, learned counsel for the petitioner in revision and by Mr.M.V.Venkataseshan, learned counsel for the respondents in the revision are heard. The copy of the impugned order, grounds of revision and the other documents produced in the form of typed set of papers are also perused. 7. The third defendant in the original suit is the petitioner in the revision. Originally, there were four defendants and out of the four, the first defendant Hanumakkal died after the passing of the preliminary decree and during the pendency of the final decree application, I.A.No.154/2008. As her only legal heir, namely her daughter-in-law was already there on record as second defendant, the same was recorded by virtue of an order passed in I.A.No.84/2010 and the final decree application was proceeded with against the remaining defendants, namely defendants 2 to 4. In the final decree application itself the revision petitioner herein/3rd defendant entered appearance and filed a counter statement on 05.12.2008 itself. Again when an application, namely I.A.No.84/2010 was filed for amendment of the plaint pursuant to the death of the first defendant and for recording of the second defendant, who was already on record, as her legal representative, the revision petitioner/3rd defendant chose to file a counter statement on 19.04.2010. 8. Allowing lapse of a further period of more than two years, the revision petitioner/3rd defendant chose to file the un-numbered application under Order IX Rule 13 CPC to set aside the ex-parte preliminary decree along with I.A.No.200/2012 for condoning the delay of 1726 days in filing the application to set aside the ex-parte decree. In the affidavit filed in support of the said application, the revision petitioner made the following averments in support of his contention that he was prevented by a reasonable cause from filing the application to set aside the ex-parte decree in time. The averments are as follows: "The first defendant and the revision petitioner herein/3rd defendant jointly engaged a counsel for defending the suit. Since the revision petitioner/3rd defendant was employed in Railway Protection Force, the first defendant alone briefed the advocate for conducting the case. The averments are as follows: "The first defendant and the revision petitioner herein/3rd defendant jointly engaged a counsel for defending the suit. Since the revision petitioner/3rd defendant was employed in Railway Protection Force, the first defendant alone briefed the advocate for conducting the case. From time to time, the revision petitioner/3rd defendant also met the counsel and enquired about the stage of the suit, for which he gave the reply on all those occasions that the suit was pending. However, the first defendant colluded with the plaintiffs and left the suit to be decreed ex-parte without instructing the counsel to contest the case. The revision petitioner/3rd defendant, who had gone to other places on duty, could not meet his counsel and instruct him to file an application to set aside the ex-parte decree dated 31.10.2007 in time and hence the delay of 1726 days has occurred in filing the application under Order IX Rule 13 CPC to set aside the ex-parte preliminary decree." 9. The said reasons assigned by the revision petitioner were stoutly refuted by the respondents herein/plaintiffs in their counter statement. In order to show that the averments found in the affidavit of the revision petitioner could not be true, the respondents herein/plaintiffs, drew the attention of the trial court to the effect that, after the passing of the preliminary decree, a final decree application was filed as I.A.No.154/2008, in which the revision petitioner/3rd defendant filed a counter statement as early as on 5.12.2008 and that even thereafter, the revision petitioner/3rd defendant did not take steps immediately to file an application to set aside the ex-parte preliminary decree. The above said contention of the respondents that before 5.12.2008, the revision petitioner/3rd defendant did have the knowledge that a preliminary decree had been passed and based on a preliminary decree, a final decree application had been filed. Again the mistake found in the final decree application in writing the name of the third defendant was pointed out and an application was filed as I.A.No.239/2011 for amendment and amendment was made by virtue of an order dated 8.11.2011. Even thereafter, the revision petitioner/3rd defendant, caused delay in filing the application to set aside the ex-parte preliminary decree. 10. Again the mistake found in the final decree application in writing the name of the third defendant was pointed out and an application was filed as I.A.No.239/2011 for amendment and amendment was made by virtue of an order dated 8.11.2011. Even thereafter, the revision petitioner/3rd defendant, caused delay in filing the application to set aside the ex-parte preliminary decree. 10. From the above said facts, it is very much obvious that the revision petitioner/3rd defendant did have the knowledge of the preliminary decree prior to 5.12.2008, still he did nothing for more than three years and eight months thereafter, which spell of delay, remains unexplained and the explanation sought to be given by the revision petitioner/3rd defendant, is bound to be rejected as false and untenable. It should also be noticed that the properties, according to the plaintiffs, originally belonged to one Kuppusami Boyan and his son Chinnaiyan, who is none other than the father of the plaintiffs. First defendant Hanumakkal was the wife of Kuppusami Boyan (mother of the plaintiffs) and second defendant Raniyammal is the wife of Chinnaiyan (daughter in law of the first defendant). The defendants 3 and 4 are strangers to the family. 11. The suit was filed for partition of the family property among the family members and the defendants 3 and 4 were also made parties and the plaintiffs had sought for an injunction against the defendants 1 and 2, not to alienate, encumber or lease out the properties, either to the defendants 3 and 4 or to any other third party. The written statement itself was signed by the revision petitioner/3rd defendant. He had contended in the written statement that Kuppusami Boyan executed a registered Settlement Deed in favour of the revision petitioner/3rd defendant in 1981 and that the revision petitioner/3rd defendant was in possession and enjoyment of the 6th item of the suit properties from the date of settlement. However, the date of settlement and the document number were not furnished. It was also contended therein that the first defendant was in possession and enjoyment of the 7th item of the suit properties and the first defendant executed a registered settlement deed in favour of the 3rd defendant on 3.11.1989 and that from the date of the said settlement, the revision petitioner/3rd defendant was in possession and enjoyment of item 7 of the suit properties. As the suit was one for partition of the family properties and the suit was resisted by the 3rd defendant on the basis of the averments made by him in his written statement claiming that he derived title to two items of the suit properties by virtue of settlement deeds made by Kuppusami Boyan and the first defendant, the plea of ignorance of the fact that an ex-parte preliminary decree had been granted against him, cannot be accepted in the light of the fact that he himself filed the written statement and he himself had filed the counter statement in the final decree application in 2008 itself. He did not claim to be a member of the family entitled to a share in the family property. On the other hand, he claims to have derived title from two of the members of the family. 12. The second defendant, who was also held to be a person entitled to a share in the family property as per the preliminary decree was not made a party respondent in the application filed by the revision petitioner/3rd defendant to set aside the ex-parte preliminary decree. A preliminary decree for partition shall be construed to be a decree passed not only in favour of the plaintiffs, but the defendants, who were found to have a share in the property as per the preliminary decree, shall also be the persons who will be affected, if such preliminary decree is set aside. Hence the failure to make the second defendant as a party respondent in the application is also fatal to the application filed by the revision petitioner/3rd defendant to set aside the ex-parte decree and the application to condone the delay in filing the application to set aside the ex-parte decree. On that ground also the application filed by the revision petitioner before the court below is bound to be dismissed. 13. For all the reasons stated above, this court comes to the conclusion that the order of the court below dismissing the Application in I.A.No.200/2012 in O.S.No.85 of 2002 cannot be termed either infirm or defective warranting interference by this court in exercise of its power of revision. 13. For all the reasons stated above, this court comes to the conclusion that the order of the court below dismissing the Application in I.A.No.200/2012 in O.S.No.85 of 2002 cannot be termed either infirm or defective warranting interference by this court in exercise of its power of revision. The learned trial judge has rightly held that the petitioner had knowledge of the preliminary decree long back in August 2008 itself, when he filed a counter in the final decree application and that the revision petitioner had miserably failed to prove that he was prevented by a reasonable cause from filing an application to set aside the ex-parte preliminary decree in time. The learned trial judge also has not committed any error in holding that the inordinate delay of 1726 days in filing the applications to set aside the delay was not explained with acceptable reasons and that the reasons assigned by the revision petitioner was bound to be rejected. There is no merit in the revision and the revision deserves to be dismissed. In the result, the civil revision petition is dismissed. The order of the learned Subordinate Judge, Tirupattur dated 19.02.2013 made in I.A.No.200 of 2012 in O.S.No.85 of 2002 is confirmed. However, there shall be no order as to cost.