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2014 DIGILAW 760 (MAD)

Palaniammal v. Kumarrakkal

2014-03-25

R.KARUPPIAH

body2014
Judgment 1. The revision petitioner who is the second defendant in O.S. No.778 of 1989, filed this revision petition against the order dated14.3.2006 made in I.A.No.316 of 2005. 2. Heard the learned counsel appearing on either side and perused the materials available on records. 3. The respondent filed a suit in O.S.No.778 of 1989 against the revision petitioner and another (i.e.) first defendant, namely, Gunasekaran and seeking the relief of declaration and permanent injunction. The above said suit was decreed on 29.3.1990. The respondent herein filed Execution Petition in E.P.No.74 of 2002 on 30.1.2001, for executing the above said decree. During the pendency of the Execution Petition, the revision petitioner, who is the second defendant in the above said suit, filed I.A.No.316 of 2005, under Section 5 of Limitation Act, to condone the delay of 4413 days in filing petition under Order 9 Rule 13 CPC. 4. The averments made by the revision petitioner in the affidavit revealed that at the time of service of summons in O.S.No.778 of 1989, the revision petitioner was not residing at Nilgiris, but the summons was served as if the revision petitioner was residing at Nilgiris. Further, the revision petitioner has not engaged any counsel, but one counsel has filed vakalat for the revision petitioner in the above said suit. It is also averred in the affidavit that only on 17.5.2002, when notice in the Execution Petition was served on the revision petitioner, she came to know about the decree passed in the original suit and since there was summer vacation from 17.5.2002 to 3.6.2002, this petition was filed on only 10.6.2002 with the delay of 4413 days. 5. The respondent herein filed a detailed counter in the above said petition and contended that the revision petition is filed only to drag on the proceedings and also stated that the revision petitioner is well aware of the suit and also the fact of the decree passed in the above said suit. Further, it is stated that summons from the trial court has been duly served to the revision petitioner and the revision petitioner was also appeared along with the first defendant in the suit through an Advocate and then, both the defendants in the suit remained exparte and therefore, the decree was passed on 29.3.1990. Further, it is stated that summons from the trial court has been duly served to the revision petitioner and the revision petitioner was also appeared along with the first defendant in the suit through an Advocate and then, both the defendants in the suit remained exparte and therefore, the decree was passed on 29.3.1990. It is also stated that the facts stated in the affidavit that the revision petitioner was not residing at Nilgiris and not engaged any counsel and not received any summons are all false and further it is stated that all the contentions raised in the affidavit should be provedby the petitioner. Therefore, in the counter it is stated that the petition is liable to be dismissed, since no merit in the petition. 6. The trial court has perused the entire records and finally dismissed the above said petition filed by the revision petitioner. Aggrieved over the above said findings of the trial court, this revision petition has been filed. 7. The learned counsel appearing for the revision petitioner submitted that in the original suit in O.S.No.778 of 1989, impleaded the revision petitioner as second defendant, but, in the above said suit, summons has not been served to the revision petitioner. Further the revision petitioner has not engaged any counsel in the above said suit, but vakalat has been filed by one counsel. According to revision petition, the revision petitioner has not affixed any thumb impression in the above said vakalat. Further, it is submitted that the revision petitioner was living at the time of summons at Pollachi and not residing at Nilgiris. Further, the learned counsel pointed out that the initial in the summons are differs and also pointed out that the respondent filed the suit with false allegation as if the second defendant in the suit was brother's son and in view of the previous proceedings, no merits in this case. Therefore, prayed for set aside the above said order passed by the trial court. 8. Per contra, the learned counsel appearing for the respondent would submit that the summons to revision petitioner was duly served by trial court and the revision petitioner and first defendant in the suit had engaged one counsel, namely, S. Muthu Kumar. Then both the defendants were remain exparte and therefore, the exparte decree was passed and then filed the execution proceedings. Then both the defendants were remain exparte and therefore, the exparte decree was passed and then filed the execution proceedings. After 4413 days, this petition has been filed only to harass the respondent and therefore, all the contentions raised by the revision petitioner cannot be accepted. 9. The learned counsel for the respondent relied upon a decision of the Hon'ble Supreme Court reported in 2008 (1) CTC 173 (Mahabir Singh Vs. Subhash and others). On a perusal of the decision reveals that if any application is filed to condone the delay, the applicant should prove the sufficient cause for delay and if fails to prove the above said reason, the petition cannot be entertained. 10. Admittedly, the suit is filed on 7.9.1989 and in the above said suit, the summons were duly served to both the defendants. The trial court has verified the records and found that the summons were duly served. Further, one Thiru. Muthu Kumar, Advocate has filed vakalat for both this revision petitioner and another defendant namely, Gunasekaran, as on 3.1.1990. The trial court has further specifically stated, as per Ex.P10, the revision petitioner has duly received the notice and put her thumb impression in the above said summons. From the above said discussion, it is clear that the revision petitioner has received the summons in the above said suit and also engaged counsel. 11. The revision petitioner has mainly contended that the thumb impression found in the summons and also in the vakalat is not that of the revision petitioner, but the revision petitioner has not taking any steps to prove the above said fact that the thumb impression are not that of the revision petitioner by sending the above said thumb impressions to the expert to compare the thumb impression with admitted thumb impression. No reason has been stated by the revision petitioner for not taking any such steps. Further, the revision petitioner has not summoned the alleged Advocate, who has filed vakalat on behalf of the revision petitioner to prove that the revision petitioner has not engaged the above said counsel. Further, the revision petitioner has not filed any reliable document to prove that on the date of summons served by court, the revision petitioner has not living at Nilgiris and only living at Pollachi. 12. Further, the revision petitioner has not filed any reliable document to prove that on the date of summons served by court, the revision petitioner has not living at Nilgiris and only living at Pollachi. 12. As rightly pointed out by the learned counsel for the respondent, the revision petitioner herself admitted in her evidence that before 15 years from the date of examining witness, she engaged the counsel. All the above said facts have been discussed by the trial court in detail and correctly, dismissed the above said petition. 13. Further, the learned counsel appearing for the revision petitioner admitted that in earlier proceedings, the revision petitioner has engaged counsel and conducted the case. Therefore, the revision petitioner has very well having knowledge about the court proceedings. In the above said circumstances, the revision petitioner has failed to prove all the contentions, particularly, the allegation that the revision petitioner has not affixed any thumb impression in the summons and vakalat and also not residing in the above said address at the time of summons served. Therefore, there is no need to interfere in the well considered order passed by the trial court. 14. In the result, the Civil Revision Petition is dismissed. No order as to costs. Consequently, connected Miscellaneous Petition is closed.