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2015 DIGILAW 740 (MAD)

Illamalli v. Krishnaveni

2015-02-06

P.R.SHIVAKUMAR

body2015
Judgment 1. This revision filed under Article 227 of the Constitution of India arises out of the order of the learned Principal Subordinate Judge, Tindivanam dated 04.08.2011 dismissing I.A.No.342/2011 in O.S.No.2/2009 on the file of the said court. The revision petitioner figures as the 11th defendant in the above said suit. The respondents 1 to 4 are the plaintiffs in the said suit. 2. The suit is one filed for partition of the suit properties. The revision petitioner is the purchaser of one of the items of the suit properties from Vasantha @ Vasanthakumari and Selvalingam, who figure as the defendants 9 and 10 in the original suit. Claiming to be the co-owner of the suit properties along with defendants 1 to 10 in the suit, the respondents herein/plaintiffs in the original suit filed the suit for partition and separate possession and other reliefs. In the suit, all the defendants including the revision petitioner (11th defendant), remained ex-parte and an ex-parte preliminary decree for partion as prayed for came to be passed on 17.03.2009. 3. The revision petitioner (11th defendant) filed an application (unnumbered) under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree. As the said application came to be filed with a delay of 776 days, it was filed along with an application under Section 5 of the Limitation Act, 1963 and the said application was taken on file as I.A.No.228/2009. When the said application stood posted on 27.04.2011 for hearing, due to absence of representation, the said application was dismissed by the trial court for non-prosecution. Praying for the restoration of the said application viz. I.A.No.228/2009, the revision petitioner/11th defendant filed an application under Order IX Rule 9 of the Code of Civil Procedure and the same was taken on file as I.A.No.342/2011. 4. In the supporting affidavit to I.A.No.342/2011, it was averred that since one Maniraj, the sister's son of the petitioner, died in an accident, the petitioner could not appear in the court on the date of hearing, namely 27.04.2011 and that when she met the advocate on 31.05.2011, she was informed that her application had been dismissed for non-prosecution on 27.04.2011. It is pertinent to note that the application for restoration of I.A.No.228/2009 was filed on the very same day on which the petitioner allegedly got knowledge of the dismissal of I.A.No.228/2009. 5. It is pertinent to note that the application for restoration of I.A.No.228/2009 was filed on the very same day on which the petitioner allegedly got knowledge of the dismissal of I.A.No.228/2009. 5. The petition was resisted on the basis of the averments made in the counter affidavit of the first respondent filed on behalf of the respondents. Besides making general denial of the averments made in the supporting affidavit, it was also contended that the application for restoration itself had been filed after the expiry of the period of limitation and that hence such an application for restoration, without accompanied by an application under Section 5 of the Limitation Act, 1963 was not maintainable. 6. The learned trial judge, without going into the question of limitation, passed an order on merit holding that the reason assigned by the petitioner for the non-appearance in I.A.No.228/2009 on the date of hearing was not sufficient and that hence the said application, which was dismissed for non-prosecution, could not be restored. As against the said order, the present revision has been filed. 7. The arguments advanced by Ms.B.Archana, learned counsel appearing for Mr.R.Kannan, learned counsel on record for the petitioner and by Mr.R.Sunil Kumar, learned counsel appearing for the respondents are heard. The materials produced in the form of typed set of papers are also perused. 8. It is the contention of the learned counsel appearing on behalf of the counsel on record for the petitioner that the court below committed an error in considering the averments made in I.A.No.228/2009, which was dismissed for default and was sought to be restored, without considering the scope and sustainability of the averments made in support of the application filed under Order IX Rule 9 CPC, namely I.A.No.342/2011 and that on the short point itself, the order of the learned trial judge should be interfered with. 9. Per contra, it is the contention of the learned counsel for the respondents that there was nothing wrong in the trial court considering the antecedents of the petitioner in deciding the sufficiency and sustainability of the reason assigned in the affidavit filed in support of the application for restoration of Section 5 application, which had been dismissed for non-prosecution. 9. Per contra, it is the contention of the learned counsel for the respondents that there was nothing wrong in the trial court considering the antecedents of the petitioner in deciding the sufficiency and sustainability of the reason assigned in the affidavit filed in support of the application for restoration of Section 5 application, which had been dismissed for non-prosecution. The further contention of the learned counsel for the respondents is that, though the petitioner had cited the death of her sister's son in an accident as the reason for her non-appearance on the date of hearing of I.A.No.228/2009 leading to the dismissal of the said application for non-prosecution, the same was not substantiated by reliable evidence and that therefore, the impugned order of the learned trial judge cannot be interfered with by this court in exercise of its power of superintendence. 10. The further contention of the learned counsel for the respondents is that the dismissal of the application in I.A.No.342/2011 can be sustained on a short point, namely maintainability of the said application. According to the learned counsel for the respondents, the application for restoration ought to have been filed within 30 days from the date of passing of the order of dismissal dismissing I.A.No.228/2009, but it came to be filed a few days after the lapse of 30 days from the date of the order, which was sought to be set aside and that therefore, the application for restoration without accompanied by an application under Section 5 to condone the delay should have been dismissed as not maintainable. 11. The last of the above said contentions raised on behalf of the respondents does not seem to be tenable on facts. I.A.No.228/2009 was dismissed for non-prosecution on 27.04.2011. The application for restoration of I.A.No.228/2009 came to be filed on 31.05.2011. If the actual period between 27.04.2011 and 31.05.2011 is taken into account, the said contention of the learned counsel for the respondents would appear to be correct. But the learned counsel for the respondents seems to have made such a representation unmindful of the fact that summer vacation intervened in between and the period of 30 days fell within the summer vacation and the petition I.A.No.342/2011 came to be filed on the reopening day. Hence there shall be no question of the bar of limitation getting attracted. 12. Hence there shall be no question of the bar of limitation getting attracted. 12. Though the learned trial judge cannot be found fault with in referring to the antecedents of the petitioner in his order to arrive at a conclusion as to whether the petitioner had proved that she was prevented by a reasonable cause from appearing on the date of hearing of the application in I.A.No.228/2009, mere reference to the past conduct, without adverting to the reason assigned for the absence on the particular day, can even be termed an erroneous approach leading to a perverse finding. In the case on hand, what the trial court has done is to adopt such approach without adverting to the reason assigned by the petitioner for her non-appearance on the particular hearing date leading to the dismissal of the application. The averment made in the supporting affidavit that one Maniraj, the sister's son of the petitioner died in an accident and that was the reason why the petitioner could not be present in court on the date of hearing has not been specifically denied in the counter affidavit. Had it been specifically denied, then the petitioner would have provided proof of the accident and the death of her sister's son. When such a ground is alleged, normally, the same should not be rejected, unless it is specifically denied by the opposite party. The conduct of the petitioner in allowing the suit to be decreed ex-parte and approaching the court with an application to set aside the ex-parte decree along with an application to condone the delay is a matter which has got to be considered in the application in I.A.No.228/2009, if it is restored. Considering those aspects in the application in I.A.No.342/2011 for restoration of the said application, namely I.A.No.228/2009, shall amount to putting the cart in front of the horse. 13. For the reasons cited supra, this court comes to the conclusion that the learned trial judge has committed a grave error in dismissing I.A.No.342/2011 without considering the reason assigned in the affidavit in support of the said application and that the finding being erroneous and even perverse is liable to be interfered with and corrected by this court in exercise of its power of superintendence over the subordinate courts under Article 227 of the Constitution of India. In the result, the civil revision petition is allowed. In the result, the civil revision petition is allowed. The order of the trial court dated 04.08.2011 made in I.A.No.342/2011 in O.S.No.2 of 2009 is set aside. I.A.No.342/2011 shall stand allowed. I.A.No.228 of 2009 is restored. The learned trial judge is directed to dispose of I.A.No.228 of 2009 as expeditiously as possible, without giving unnecessary adjournments within a period of 8 weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.