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2019 DIGILAW 1159 (MAD)

Palanisamy v. Mariyaee Ammal (Died)

2019-04-16

J.NISHA BANU

body2019
JUDGMENT : (Prayer: CRP.1735/2010 filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 16.07.2010 in I.A.No.530 of 2010 in I.A.No.623 of 1995 in O.S.No.1187 of 1986 on the file of Additional District Munsif Court, Karur. CRP.1736/2010 filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 23.06.2010 in I.A.No.369 of 2007 in O.S.No.1187 of 1986 on the file of Additional District Munsif Court, Karur.) 1. CRP.1735 of 2010 was preferred by one Palanisamy as against the order dated 23.06.2010 passed in I.A.No.369 of 2007 in O.S.No.1187 of 1986 on the file of Additional District Munsif Court, Karur. CRP.1736 of 2010 was preferred by the very same Palanisamy as against the the order dated 16.07.2010 in I.A.No. 530 of 2010 in I.A.No.623 of 1995 in O.S.No.1187 of 1986 on the file of Additional District Munsif Court, Karur. 2. The contesting respondent Mariyaee Ammal, wife of Palaniappan who is the plaintiff in O.S.No.1187 of 1986 and 1st respondent in the above said revision petitions died on 18.10.2015 and her legal heirs were impleaded as respondents 5 to 7 in the above revision petitions and they are contesting respondents in these cases. 3. The plaintiff in O.S.No.1187 of 1986 is the first respondent in this revision petition. The first and second respondent in this revision petition died during the pendency of the suit. Respondents 3 to 5 remained exparte in Interlocutory Application No.369 of 2007. the sixth respondent herein was the only contesting party before the Trial Court. 4. When the respondents 1 and 2 herein died during the pendency of the suit, the legal representatives were found to be already on record. In respect of the same, the plaintiff filed an application for amendment of the plaint(Order 6 Rule 17 CPC) and the Interlocutory Application No.623 of 1995. 5. The application in I.A.No.623 of 1995 had been filed seeking the relief of final decree. This application was opposed by the 6th respondent on the ground that he was not a party when the decree was obtained in O.S.No.1187 of 1986. In any event, the decree was obtained by conspiracy and that it would not bind the sixth respondent. 5. The application in I.A.No.623 of 1995 had been filed seeking the relief of final decree. This application was opposed by the 6th respondent on the ground that he was not a party when the decree was obtained in O.S.No.1187 of 1986. In any event, the decree was obtained by conspiracy and that it would not bind the sixth respondent. The suit properties originally belonged to paternal grandfather of the sixth respondent who executed a will on 09.02.1981 and the will came into effect after the death of the executant Periyanna Gounder and thereafter possession is with the sixth respondent. The petitioner himself had marked the will as Ex.B12. Even then, the petitioner has not chosen to implead the sixth respondent during the pendency of the suit. The petition is bad for non impleadment of the petitioner's sister Chellammal. 6. The first respondent died on 29.11.2000. The second respondent died on 07.02.2006. The respondents 4 to 6 are the proposed legal representatives of the first respondent and they are also the legal heirs of the second respondent. The proposed parties were not impleaded within the time limit. Therefore, the suit got abated. 7. The Trial Court has considered the factual matrix as well as the legal aspect of the case and has considered the following relevant factors. The proposed parties were not impleaded within the time limit. Therefore, the suit got abated. 7. The Trial Court has considered the factual matrix as well as the legal aspect of the case and has considered the following relevant factors. The suit has been filed in respect of two schedules namely, A and D; A schedule belonged to her father Periyanna Gounder; B schedule is the self acquired property; the plaintiff had impleaded her brother (first defendant), her mother (second defendant) and her sister Seerammal, when she filed the suit for partition; the suit has been dismissed in respect of B schedule property on 01.03.1990; in respect of A schedule property, based on the will, the plaintiff was granted the relief of 1/4th share of the 2/3rd property after recognising that 1/3rd property should go to the sixth respondent herein as per the will; this was the terms of the preliminary decree; this was challenged by the plaintiff in Appeal No.11 of 1990 filed by the first respondent herein; the appellate court held that A schedule property should be divided into 8 equal shares and one share should be allotted to the plaintiff and in respect of the B schedule property, the appeal was dismissed; this was challenged in Second Appeal No.1480 of 1995 and the High Court set aside the judgment of the lower appellate court and the judgment of the Trial Court was confirmed by the judgment dated 08.03.2001; in the meantime, the plaintiff filed I.A.No.623 of 1995 seeking the relief of final decree which was dismissed for default on 17.09.2002; application was filed in I.A.No.369 of 2007 to restore I.A.No.623 of 1995 which was dismissed on 17.09.2002; in the application, the revision petitioner herein has been shown as sixth respondent and the delay in filing the restoration application was sought to be explained on three grounds namely, (i) Appeal was pending before the High Court; (ii) on account of old age; and (iii) there is no limitation for filing application to pass final decree. 7.1. After hearing the objections raised by the revision petitioner in I.A.No.369 of 2007, the Trial Court was pleased to restore I.A.No.623 of 1995 holding that I.A.No.623 of 1995 was not dismissed but it was closed. Observing that there is no limitation to file final decree application and by invoking the provisions of Section 151 CPC, the application was allowed on 23.06.2010. Observing that there is no limitation to file final decree application and by invoking the provisions of Section 151 CPC, the application was allowed on 23.06.2010. Challenging this, CRP.1736 of 2010 has been filed. 8. The learned counsel for the revision petitioner has relied upon the judgment reported in AIR 1970 SC 997 (Nainsingh vs. Koonwarjee and others) and would contend that the Trial Court cannot make use of inherent power when a specific provision is provided for seeking a specific remedy elsewhere in the court. The relevant observation reads as under:- “Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does not contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should be invoked. In other words, the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power.” 8.1. The second decision is the one reported in (2008) 2 SCC 488 , State of Uttar Pradesh and others vs. Roshan Singh (Dead) by LRs and others:- “The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the Code of Civil Procedure. Section 151 CPC will not be available when there is alternative remedy and the same is accepted to be a well-settled ratio of law. The operative filed of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the court are in addition to the powers specifically conferred on it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the court power of making such orders as may be necessary for the ends of justice of the court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless under the Act.” 9. With regard to legal position, there cannot be any dispute. But the question is whether these decisions will apply to the facts of this case. There are vital distinctions to be taken note of while considering the question of applicability of the decisions relied upon by the revision petitioner. 10. There is a distinction between the dismissal of the case and closing of the case. In this case, the Trial Court has very specifically stated that the application was closed on account of the pendency of the Second Appeal before the High Court. It is also appropriate to mention that any number of final decree applications can be filed and there is no limitation for filing of the final decree applications. 11. It is relevant to quote the observations in AIR 1991 MADRAS 307, Murugan vs. Chidambaram Pillai:- “It is well settled that in a suit for partition, there is no limitation for filing a final decree application and any number of final decree applications could be filed until the suit is finally disposed of; and by the mere passing of the preliminary decree, the suit is not disposed of. The application for the passing of a final decree in a suit for partition is not in execution.” 12. When the application was not dismissed and it was only closed, it can be re-opened at appropriate times. Even assuming that Section 5 application is necessary, it is not imperative that a separate application should be filed, but it is enough if reasons are disclosed in the affidavit filed for restoration. This proposition is supported by the decision reported in AIR 1975 MADRAS 137 Megharaj vs. Jesraj Kasthuri Jee and others, it has been held that Section 5 of the Limitation Act does not mandate filing of a written application to get the delay condoned. The relevant observation reads as follows:- “3. This proposition is supported by the decision reported in AIR 1975 MADRAS 137 Megharaj vs. Jesraj Kasthuri Jee and others, it has been held that Section 5 of the Limitation Act does not mandate filing of a written application to get the delay condoned. The relevant observation reads as follows:- “3. Before I deal with the authorities, which are relevant for the purposes of this case, it is necessary to look into the text of Section 5 of the Limitation Act itself to find out its real purport and intendment of the Act. The language of Section 5 of the Act does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under that section. It reads thus- “Any appeal or application for review of judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.” It only says that any appeal or any application filed beyond the prescribed limit of time, under the section may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he has reasonable ground for not preferring the appeal or the application within the prescribed time. The entire tenor and language of Section 5 leaves, therefore, a judicial discretion in courts in the matter of the application of the principles set out in Section 5 of the Limitation Act. As all such rules are to be understood and applied as beneficial provisions, bare technicalities ought not to prevail over the pith and substance of the provisions. As I said, there is no warrant in the language of Section 5 of the Limitation Act to lay down as an axiomatic rule of procedure that unless an application in writing or any other similar formal application accompanies either the appeal or the application in question, the court ought not to take cognizance of the realities and ignore the substance of the sufficiency in the cause of each case and dismiss the said appeal or application for technical reasons, such as the absence of a written or a formal application. In fact each case has to be decided on its own facts. It is not as if that under all circumstances a written application should be ignored; but in cases where by inadvertence or by a bona fide error of judgment, the party assisted by counsel ushers into the portals of court, certain records which are not full and complete, then such bona fide error of judgment should necessarily be taken into account by a court which administers not only law but also equity haloed by good conscience in ultimately deciding whether that unfortunate litigant deserves sympathy or not.” 13. Therefore, this Court was at a loss to understand how to dispose of matters when there is a procedural irregularity, but when a case is kept pending for a long time, only procedural irregularity is the only issue to be decided. This case itself has been pending for a period of 8 years. If after 8 years, if a matter is remanded once again, after the decision on merits, second round of litigation would arise. This is a simple suit for partition filed in the year 1995. Despite the passing of two decades, the case has not reached the finality which could have been disposed of within 20 minutes if it had been referred to mediation. The decision with regard to will could not have taken more than one year to dispose it of. Therefore, this Court considered the issue as to what would be the prejudice to the revision petitioner even assuming that there is a procedural irregularity. 14. The issue regarding will is the one taken up by the first defendant in the suit whose legal representatives are on record after the death of the first defendant as respondents 3 and 4 in this revision petition. 15. When the issue regarding will has been decided on merits, the decision taken in the presence of the first defendant is binding upon the revision petitioner also. Therefore, it is not open to the revision petitioner to challenge the will once again. No prejudice would be caused to the revision petitioner if the application to implead is ordered. In fact, after the death of the first defendant, the legal representatives themselves could have come forward with an application to implead themselves. That has not been done. Therefore, it is not open to the revision petitioner to challenge the will once again. No prejudice would be caused to the revision petitioner if the application to implead is ordered. In fact, after the death of the first defendant, the legal representatives themselves could have come forward with an application to implead themselves. That has not been done. The filing of the revision petition is only for the purpose of dragging on the proceedings. The well considered order of the Trial Court does not require any interference. Both the revision petitions which are devoid of merits, deserves to be dismissed and it is dismissed accordingly. No costs. Consequently, connected miscellaneous petition is closed.