Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3254 (MAD)

V. Vijayan v. A/M Vaikundaperumal Temple

2018-09-26

M.S.RAMESH

body2018
JUDGMENT M.S. Ramesh, J. The relief sought for in the present Civil Revision Petition is to set aside the fair and Decretal order dated 11.08.2017 passed in I.A.No.192 of 2016 in A.S.No.19 of 2007, on the file of the learned Subordinate Judge, Kanchipuram. 2. The order under challenge in the present Civil Revision Petition is the rejection of petitioner's application seeking to condone the delay of 1147 days in filing the restoration application. 3. The respondent herein had filed a suit in O.S.No.76 of 1997 before the learned District Munsif, Kanchipuram seeking for a decree of Permanent Injunction restraining the petitioner from proceeding with the construction over the suit properties. 4. According to the respondent herein, the suit property belongs to the temple and is covered under Inam Title Deed No.1042. The petitioner herein, who had contested the suit by filing written statement had taken a specific plea that he is in possession of the suit property and he had the title over the building to substantiate his right and possession over the same. The suit came to be decreed on 20.07.2006 after due trial. As against which, the petitioner herein had filed an appeal in A.S.No.19 of 2007 before the Subordinate Court, Kanchipuram. In the mean time, the respondent herein had also filed the Execution Petition in E.P.No.39 of 2009 which is also pending. 5. Pending the First Appeal, the petitioner herein, had defaulted to appear before the Appellate Court, owing to which, the appeal came to be dismissed for default. As against the order of dismissal, the petitioner herein had filed an application in I.A.No.192 of 2016 in A.S.No.19 of 2007 seeking to condone the delay of 1147 days in filing the application to restore the appeal. The reasons stated in the said application is that the petitioner herein was suffering from fever and therefore was not able to meet his counsel to give instructions to proceed with the appeal and pay the necessary Court fees. The Appellate Court on consideration of the reasoning given by the petitioner in his application, dismissed the application. As against which, the present Civil Revision Petition is filed. 6. The learned counsel for the petitioner submitted that the property in dispute, is a small residential property wherein, he has a valid title and right over the same. The Appellate Court on consideration of the reasoning given by the petitioner in his application, dismissed the application. As against which, the present Civil Revision Petition is filed. 6. The learned counsel for the petitioner submitted that the property in dispute, is a small residential property wherein, he has a valid title and right over the same. According to the learned counsel, there are various properties numbering more than 80, which are similarly placed like that of the petitioner herein and that the respondent had chosen to proceed against the petitioner and three others alone. 7. The learned counsel for the petitioner further submitted that the reason for the dismissal of the appeal is that he was suffering from fever and was not in a position to instruct his counsel for the purpose of proceeding with the appeal and payment of Court fees. Also, the petitioner is residing there for more than 20 years along with his family and that the suit property has been purchased by him for a valid consideration after ascertaining title of his vendor. He would further submit that he has a meritorious case in the appeal and therefore, requested to take a sympathetic approach in the present Civil Revision Petition. 8. In support of his submissions, the learned counsel for the petitioner referred to the following Judgments : (i) The decision laid down by the Calcutta High Court between Union of India [Uoi] and Another V.Adarsh Properties Pvt., Ltd, (2005) 4 CHN 676 . (ii) The decision laid down by this Court between Kottar Chettu Nainar Desika Vinayagar Devaswom Trust rep. By its Trustee 2 to 5 V. the Assistant Commissioner, HR & CE Department, Nagercoil, Vadiveeswaram Village, Agastheeswaram Taluk, Kanyakumari District and Others reported in 2016 [1] CTC 481. (iii) The decision laid down by the Hon'ble Supreme Court between B.S. Sheshagiri Setty and Others V. State of Karnataka and Others, (2016) 2 SCC 123 . 9. Mr.Hariharan, learned counsel appearing for the respondent, on the other hand, vehemently opposed the submissions made by the petitioner. According to him, the petitioner should not be given any indulgence, since this is not the first time, the appeal is being dismissed for default. 9. Mr.Hariharan, learned counsel appearing for the respondent, on the other hand, vehemently opposed the submissions made by the petitioner. According to him, the petitioner should not be given any indulgence, since this is not the first time, the appeal is being dismissed for default. In an earlier occasion, the appeal came to be dismissed for default and the petitioner had filed an application to condone the delay of 1147 days in filing the restoration application and by pointing out the reasons stated in the affidavit filed in support of the earlier application, the learned counsel, submitted that the identical reasoning were adduced in the earlier affidavit also and that goes to prove that the petitioner herein, has not come to the Court with clean hands. 10. Further, the learned counsel for the respondent by relying upon earlier proceedings of the Settlement officer as well as the order of this Court passed in the writ petition submitted that the petitioner has absolutely no merits in the appeal and that the temple must not be made to unnecessarily defend a case, which does not have any merits at all. 11. The learned counsel for the respondent further submitted that the property in question is a valuable property, wherein the petitioner has illegally put up constructions by flouting the earlier order of injunction. In view of his conduct, no sympathy should be shown. 12. The learned counsel for the respondent also referred to the Order of this Court between Kottar Chettu Nainar Desika Vinayagar Devaswom Trust and Others V. the Assistant Commissioner, HR & CE Department, Nagercoil and Others, (2016) 1 CTC 481 and submitted that the discretion vested by the Revisional Court is limited and Courts can interfere only when the discretion is exercised in an arbitrary and perverse manner. 13. I have given careful considerations to the submissions made by the learned counsels. 14. It is no doubt true that the petitioner in the affidavit filed in support of the application seeking to condone the delay, has cited his inability to prosecute the case, as he was under medical ailment and that he was also not in a position to instruct his counsel for the purpose of getting along with the appeal and for the payment of Court fees. 15. 15. The trial Court, by considering the affidavit and counter affidavit filed by the parties had come to the conclusion that the delay was not properly explained, in the sense, that the petitioner herein had not filed any supporting documents to substantiate his medical ailment and by relying upon two Judgments of this Court, had come to the conclusion that the explanations rendered by the petitioner herein, cannot be considered as a sufficient cause for the purpose of condoning the delay. 16. The suit is filed by the respondent for Permanent Injunction restraining the petitioner herein from putting up any further construction over the suit property. The petitioner herein claims to have purchased the property for a valid sale consideration from a vendor, who had valid right over the suit properties. It is on this basis, he has framed various grounds in the appeal, which according to him, has not been considered by the trial Court. No doubt, the petitioner herein has not produced any medical records to substantiate that he was undergoing medical ailments. Nevertheless, in so far as the reasoning of the petitioner in his affidavit that he was unable to instruct his counsel for the purpose of proceeding with the appeal and paying the Court fee is concerned, the Court below had not rendered any finding to that effect. 17. Be that so, the concern, which arises before this Court is as to whether the petitioner herein, was careless to that effect in prosecuting the case, so as to loose his title over the building The petitioner herein has admitted in his written statement that the land belongs to the respondent-temple. Nevertheless, he also claims that he has obtained revenue records in his favour to establish his right. The said orders are under challenge before the concerned Revenue Authorities. 18. The petitioner also claims that he had purchased the suit property from a person, whom he claims to be a tenant in the temple for a valid sale consideration. He had also participated in the proceedings against the order of the Assistant Settlement Officer and the same is now pending before the Settlement officer in an appeal. 19. It is the case of the petitioner that the trial Court has not properly appreciated these aspects and therefore, he must be given an opportunity to get along in the appeal, which can be decided on its own merits. 19. It is the case of the petitioner that the trial Court has not properly appreciated these aspects and therefore, he must be given an opportunity to get along in the appeal, which can be decided on its own merits. 20. In view of the fact that the petitioner herein has atleast taken adequate precautions to safeguard the building, in which he claims certain rights and also taking into account that some favourable orders has been passed by the Assistant Settlement Officer, this Court is of the view that he must be given an opportunity to contest the appeal on its own merits. 21. The learned counsel for the respondent has also relied upon the Judgments of this Court between Kottar Chettu Nainar Desika Vinayagar Devaswom Trust and Others V. the Assistant Commissioner, HR & CE Department, Nagercoil and Others, (2016) 1 CTC 481 and submitted that the delay should not be condoned, as a matter of course on the ground that the dismissal will cause injury of public interest, when delay is totally lethargic and in utter negligence. There is no dispute with regard to the aforesaid proposition. 22. In the instant case, what has been taken into consideration by this Court for the purpose of considering the reasoning of the petitioner is that he had taken certain efforts to safeguard his alleged rights over the property before the Settlement Officer. It cannot be said that the petitioner was totally lethargic in his conduct. Further more, it was not the case of the Trial Court that he had not given any reason at all. Admittedly, two reasons are stated by the petitioner herein, contributing medical ailments and his inability to instruct his lower Court counsel. While the Court had disbelieved the ailments, since it was not backed with medical records, the reasoning given by the petitioner that he was unable to meet his counsel, was not answered. 23. In view of the fact that the petitioner still claims to be in possession of the property and that the appeal against the order of the Assistant Settlement Officer is also pending consideration, it would be appropriate to exercise a sympathetic approach in the present issue. Nevertheless, in view of the delay being for more than almost 1147 days, it would also be appropriate to put the petitioner on the following term: "The petitioner shall pay a cost of Rs. Nevertheless, in view of the delay being for more than almost 1147 days, it would also be appropriate to put the petitioner on the following term: "The petitioner shall pay a cost of Rs. 25,000/- [Rupees Twenty Five Thousand only] to the respondent herein within a period of thirty days from the date of receipt of copy of this order." 24. In the light of the above observations, the order dated 11.08.2017 passed in I.A.No.192 of 2016 in A.S.No.19 of 2007 is set aside. Consequently, the delay of 1147 days is condoned. The learned Subordinate Judge, Kanchipuram is required to take up the Appeal Suit in A.S.No.19 of 2007 on file and dispose the same as expeditiously as possible. 25. With the above observations, the Civil Revision petition is allowed with cost of Rs. 25,000/-. Consequently, connected Miscellaneous petition is closed.