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2019 DIGILAW 1507 (MAD)

R. P. Rathinam v. Rengamani

2019-06-04

J.NISHA BANU

body2019
JUDGMENT : (Prayer: Petition filed under Section 115 of the Civil Procedure Code, against the order passed in I.A.No.614 of 2007 in O.S.No.1252 of 1995 on the file of the District Munsif Court, Lalgudi, dated 22.12.2009.) 1. This revision petition is filed to set aside the order dated 22.12.2009 passed by the learned District Munsif Court, Lalgudi, in I.A.Nos 614 & 615 of 2007 in O.S.No 1252 of 1995 to condone http://www.judis.nic.in the delay of 1363 days in filing the petition to set aside the ex- parte decree under Section 5 of the Limitation Act and to set aside the exparte decree under Order 9 Rule 13. 2. The 1st petitioner/1st defendant is a government servant working as a noon meal organiser which is a transferable post. The 2nd petitioner/2nd defendant is the wife of the 1st petitioner and claims possession of the suit property in O.S.No 1252 of 1995. The 3rd petitioner/3rd defendant is the tenant at the suit property. The respondent is the decree holder in O.S. No 1252 of 1995. 3. The dispute in the O.S.No 1252 of 1995 is that the 2nd petitioner claims purchase of the suit property from the respondent during 1987 while the respondent denies sale of the land to the 2nd petitioner and claimed to have given the suit property in license/lease. The 2nd petitioner shows the building of a house in the suit property with EB Connection and property tax paid in her name in support of her claims. The respondent challenges any sale document to be a forged one. http://www.judis.nic.in 4. The suit that was instituted during 1993 and was decided ex-parte in favour of the respondent allegedly on the failure of the 2nd petitioner to attend the case on 22.09.2003. The 2nd petitioner would urge that she came to know of the exparte order of 2003 only on 01.08.2007 upon receiving the E.P. Notice in E.P.No 42 of 2006 on the file of the District Munsif Court, Lalgudi. 5. The 2nd petitioner would submit that delay in filing the I.A.Nos 614 & 615 of 2007 in O.S.No 1252 of 1995 after a delay of 1363 days is because of the frequent transfer of the 1st petitioner/husband. The 2nd petitioner is aggrieved by the refusal of the court to condone the delay. 5. The 2nd petitioner would submit that delay in filing the I.A.Nos 614 & 615 of 2007 in O.S.No 1252 of 1995 after a delay of 1363 days is because of the frequent transfer of the 1st petitioner/husband. The 2nd petitioner is aggrieved by the refusal of the court to condone the delay. The 2nd petitioner would urge that the learned District Munsif had failed to consider the valid reasons adduced by her for the delay. It was also submitted that the ex-parte decree on possession is passed by the learned District Munsif, Lalgudi, not on merits, but on the reason of her absenting to attend case on 22.09.2003. 6. The 2nd petitioner also found fault with the non speaking nature of the exparte decree passed in 2003 against her and http://www.judis.nic.in therefore felt entitled to challenge the validity of the order under Article 227 of the Constitution of India or otherwise, they should be given liberty to challenge the same by instituting a separate proceeding under Article 227. The 2nd petitioner also declared that they are willing to cooperate for an expeditious trial for the disposal of suit in 3 months time and requested one reasonable opportunity to contest the case on merits. 7. The respondent on the other hand submits that there is no reason adduced by the petitioners in the IA for the delay. It was submitted that one third of the life of the respondent is already lost in the litigation. It was pointed out that by entering into an agreement for sale, the petitioner herself has admitted that the suit property belonged to the respondent. It was alleged that the petitioner dragged the suit and the exparte decree came to be passed after 10 years of instituting the suit. It was also pointed out that in the EP proceedings, the petitioners had taken a different stand questioning the ownership of the suit property. It was pointed out that there are three defendants in the suit and no explanation for the other two defendants were given and that the delay is inordinate one. 8. The respondent submitted that the concept of liberal approach should encapsule the conception of reasonableness. They sought to see the distinction between an inordinate delay and short delays. It was pointed out that there are three defendants in the suit and no explanation for the other two defendants were given and that the delay is inordinate one. 8. The respondent submitted that the concept of liberal approach should encapsule the conception of reasonableness. They sought to see the distinction between an inordinate delay and short delays. They urged the court to consider the conduct, behaviour and attitude of the party relating to the inaction or negligence and to guard the respondent from facing unnecessary litigation on the basis of fanciful and callous applications for condonation of delay. In support of the arguments, the respondent had relied on the decision of the Hon'ble Supreme Court of India in Esha Bhatterjee vs Managing Committee of Raghunathpur reported in 2013 (5) CTC 547 . The respondent also relied on the decision of this court in Leela vs V.R.Asha reported in 2019 (1)CTC 649, to press the point that the power of the trial court to invoke section 5 of the Limitation Act is discretionary in nature and therefore there can be no binding precedent compelling the trial court. The respondent also cited the decision of this court in Hemamalini Vs T.Shakuntala reported in 2016 (1) MWN (Civil) 721 to emphasise the point that the reasons for the cause of delay should be good and sufficient. 9. The respondent argued that there was an opportunity for the petitioners to set aside the ex-parte judgment and it is a fact that they have not filed the application in time and that even in the condonation petition filed after a delay of 1363 days, there is no bonafide or sufficient reason given for the delay. It was urged that in the circumstances of the case, if the delay is condoned, greater prejudice will be caused to the respondent and prayed for dismissal of the CRP. 10. Heard the counsels and perused the records. The O.S.No 1252 of 1995 was instituted by the respondent during 1993. The petitioners have filed written statements in the suit. The suit came to be decreed in favour of the respondent ex-parte as the petitioners failed to attend the case on 22.09.2003, that is after 10 years of institution of the suit. The petitioners have filed I.A.Nos 614 & 615 of 2007 in O.S.No 1252 of 1995 after a delay of 1363 days. The suit came to be decreed in favour of the respondent ex-parte as the petitioners failed to attend the case on 22.09.2003, that is after 10 years of institution of the suit. The petitioners have filed I.A.Nos 614 & 615 of 2007 in O.S.No 1252 of 1995 after a delay of 1363 days. The delay was attributed to the transfer of the 1st petitioner who is the husband of the 2nd petitioner who claimed title. The 3rd petitioner who is the brother of the 2nd petitioner was also the tenant in the suit property. As rightly pointed out by http://www.judis.nic.in the counsel for the respondent, all the three are defendants in the suit. The delay is inordinate as no steps were taken by the petitioners for as many as 1363 days. Therefore, it is clear that there is no good reason for the petitioners for the delayed filing of I.A.Nos 614 & 615 of 2007. In the circumstances, the case laws relied on by the respondent are relevant to the circumstances of the case and bound to be accepted by this court. Accordingly, the plea of the petitioners to give one opportunity to co-operate for expeditious trial of the suit at this distant date could not be acceded to. 11. In view of the above discussions, the Civil Revision Petition is liable to be dismissed and accordingly it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.