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2017 DIGILAW 761 (MAD)

S. Athimuthu v. Kalakkad Pannai Podu Nidhi Trust

2017-03-23

G.JAYACHANDRAN

body2017
ORDER : All the three revision petitions are filed by the defendants in O.S. No. 235/99. The said suit was filed by the Kalakkad Pannai Podu Nidhi Trust, represented by its Trustees, against L.Padmanabhan and 209 others. 2. The suit is for recovery of possession and past and future mesne profits. On 17.08.2006, the suit was decreed. Pursuant to the decree, the plaintiffs filed Execution Petition No.70/08 in O.S.No.235/99. 3. In E.A.No.228/14, the judgment debtors contended that the decree passed in the suit is not an executable decree. They are not cultivating tenants under the decree holder and therefore, the decree is a nullity. 4. The said E.A.No.228/14 was dismissed by the Execution Court on 01.04.2015. Against the dismissal of the Execution Application, Athimuthu and 39 others have preferred a revision petition and the same was returned by the Registry, for rectifying certain defects and for re-presentation. While re-presenting the revision papers after curing the defects, 503 days delay has occurred. Hence, the revision petitioners have taken out the present application CMP(MD)No.10045 of 2016 in CRP.SR(MD)No.38076 of 2015, to condone the delay of 503 days in re-presentation. 5. Before filing E.A.No.228/14, the revision petitioners have filed appeal against the decree passed in O.S.No.235/99 dated 17.08.2006. Though the appeal was filed in time, the appeal papers were returned for compliance of certain defects. The revision petitioners re-presented the papers with the delay of 521 days, but without curing all the defects. Therefore, again, the appeal papers were returned and they re-presented it with the further delay of 159 days for the second time. 6. Both the applications to condone the delay of 521 days in I.A.No.172/09 and to condone the delay of 159 days in I.A.No.173/09 were taken up for hearing. The Trial Court directed the revision petitioners to file batta for the respondents. Since the revision petitioners failed to file batta to serve notice on the respondents in both their I.A.No.172/09 (condone delay of 521 days in re-presentation) and I.A.No.173/09 (condone delay of 151 days in re-presentation), the same were dismissed on 23.11.2010. After dismissal of their condone delay petitions, the revision petitioners took out applications in I.A.Nos.135 and 136 of 2015 to restore I.A.Nos.172 and 173 of 2009 with the delay of 976 days. 7. After dismissal of their condone delay petitions, the revision petitioners took out applications in I.A.Nos.135 and 136 of 2015 to restore I.A.Nos.172 and 173 of 2009 with the delay of 976 days. 7. In short, the revision petitioners having lost the suit, filed appeal in time, but failed to re-present the appeal papers within the time, as a result, there was a delay of 521 days at the first instance and 159 days at the second instance. When the Court directed the revision petitioners to pay batta for service of notice to the respondents, the revision petitioners failed and therefore, both the Section 5 applications were dismissed for default on 23.11.2010. To restore the dismissed applications, there was 976 days delay. Those applications I.A.Nos.135 and 136 of 2015 were dismissed, against which, CRP.Nos.2037 and 2038 of 2015 have been filed. 8. The learned counsel for the revision petitioners besides canvassing the case on merits, contended that the delay in re-presentation was due to the difficulty in numbering and prosecuting the litigation where there are numerous parties. Further, it was contended that for non payment of batta regarding some of the respondents, the Trial Court dismissed the Section 5 applications in toto, which is a grave error in jurisdiction and exercise of power vested with the Trial Court, and therefore, the same is liable to be set aside. 9. The sum and substance of the revision petitions is that whether the revision petitioners were diligent in pursuing their case and whether there is sufficient cause shown by them for not prosecuting the case diligently. 10. The revision petitioners are all fighting against one respondent namely, Kalakkad Pannai Podu Nidhi Trust represented by its Trustees, which is the plaintiff in the suit. The reason for not re-presenting the case papers in time and for not taking steps to serve notice to the respondents, is not properly explained, except quoting a large number of respondents. This cannot be the reason at all, because, the respondents are all defendants in the suit and collecting addresses and paying batta to them is not a difficult task. Even if it is so, it is not necessary to delay the matter for nearly 7 years from the date of decree. Therefore, the Trial Court has rightly held that the revision petitioners are not really interested in conducting the case, but only protracting the proceedings. 11. Even if it is so, it is not necessary to delay the matter for nearly 7 years from the date of decree. Therefore, the Trial Court has rightly held that the revision petitioners are not really interested in conducting the case, but only protracting the proceedings. 11. The reason stated for delay in re-presentation is that the papers were mixed up with other bundles in the Advocate's office and therefore, only after intimation from his Clerk, the counsel came to know about the return of the case papers. Such a vague explanation cannot be accepted, because, after the return of papers for re-presentation in CRP.SR(MD)No.38076/15, there was proceedings in I.A.Nos.135 and 136 of 2015 to condone the delay of 976 days. Therefore, it is unbelievable that the revision petitioners were not aware of prosecuting their revision petitions before the High Court. 12. Since there is no justifiable cause provided by the revision petitioners to condone the delay in re-presentation, this Court holds that entertaining these revision petitions will create grave prejudice to the decree holder, who has obtained a decree and waiting for its execution. Law cannot come to rescue for a person who is not vigilant in pursuing his right. In this case, it is not a single person who has by inadvertently failed to follow the case. It is a group of persons pitted against a Trust. Failure to present the case papers in all Courts only indicates that the revision petitioners are not really interested in pursuing their case, but they want to protract. Court cannot come to aid for such persons who try to abuse the process of the Court with ulterior motive. Hence, CRP. SR (MD) No. 38076 of 2015, CMP (MD) No. 10045 of 2016 and CRP (MD) Nos. 2037 and 2038 of 2015 are dismissed. No costs. Consequently, connected miscellaneous petition is closed.