Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 166 (MAD)

Manivannan v. Baskaran

2019-01-11

T.RAVINDRAN

body2019
ORDER : T. Ravindran, J. 1. The civil revision petition is directed against the fair and decreetal orders, dated 07.09.2009, passed in I.A. No. 19 of 2009 in A.S. No. ....of 2009, on the file of the Subordinate Court, Paramakudi. 2. The respondents aggrieved over the Judgment and Decree, dated 09.09.2005, passed in O.S. No. 72 of 2003, on the file of the District Munsif Court, Paramakudi, has preferred the first appeal against the appellants and as could be seen from the materials placed on record, the abovesaid appeal papers preferred by the respondents had been returned by the Subordinate Court directing them to comply with the certain defects by order, dated 15.12.2005, inter alia, to pay the deficit Court fees and also to describe the correct position of law as regards the payment of the Court fees, give the proper description of the suit property and accordingly, granted them 30 days time to comply with the abovesaid defects. It is found that without complying with the abovesaid defects, the appeal papers had been re-presented by the respondents and again the Subordinate Court, by order dated 18.01.2006, had returned the appeal papers to comply with the defects as directed by the Office in the return dated, 15.12.2005, granting the respondents 15 days time to comply with the same. Only thereafter, it is found that the respondents had chosen to comply with the defects and re-presented the appeal papers on 13.03.2009. Resultantly, the delay of 1136 days having occurred in the representation of the appeal papers, it is found that the respondents had preferred I.A. No. 19 of 2009, under Section 151 of the Code of Civil Procedure, to condone the abovesaid delay in re-presenting the appeal papers and the reason adduced by the respondents for the same is that inasmuch as the first respondent had been working in other station and accordingly, the appeal papers could not be re-presented in time and accordingly, prayed for the condonation of the delay. 3. 3. The abovesaid application of the respondents had been resisted by the petitioners putting forth the contentions that the respondents had presented the appeal papers with deficit Court fees and also not obtained necessary permission from the Court in paying the deficit Court fees as per law and on the other hand, after the time allowed by law, they had suo motu affixed the Court fees and represented the appeal papers and therefore, the application is not maintainable in law and furthermore, it is stated that the reasons adduced by the respondents are false and the case projected by them that on account of the employment of the first respondent in other station, the appeal papers could not be submitted in time is false and therefore, prayed for the dismissal of the application. 4. The Court below, without considering the merits of the case, as such, as to whether the respondents have placed acceptable cause for the condonation of the delay, on the footing that the respondents should be provided with an opportunity to put forth their case on merits, accordingly, proceeded to allow the application on costs. Challenging the same the present civil revision petition has been preferred. 5. As could be seen from the materials placed on record, admittedly, the respondents have not presented the appeal papers with requisite Court fees, accordingly, it is noted that the Court below had returned the appeal papers of the respondents directing them to pay the requisite Court fees as well as to rectify the other defects pointed out in the appeal papers. The abovesaid direction has been made by the Court on 15.12.2005 granting the respondents 30 days time to re-present the appeal papers. However, the respondents, without complying with the abovesaid directions and also the payment of the requisite Court fees, had re-presented the appeal papers and consequently, the appeal papers had been again returned by the Court on 18.01.2006 directing the respondents to comply with the defects already pointed out. Thereafter, it is found that only on 13.03.2009, the respondents had chosen to comply with the defects and re-presented the papers. Inasmuch as thereby, there occurred a delay of 1136 days in re-presenting the appeal papers, to condone the same, the respondents had preferred the abovesaid application. Thereafter, it is found that only on 13.03.2009, the respondents had chosen to comply with the defects and re-presented the papers. Inasmuch as thereby, there occurred a delay of 1136 days in re-presenting the appeal papers, to condone the same, the respondents had preferred the abovesaid application. The only reason given by the respondents for the huge and inordinate delay is that inasmuch as the first respondent was not in station on account of his avocation, the appeal papers could not be re-presented in time and thereby, the delay had occurred. The abovesaid reason has been seriously repudiated by the petitioners. In addition to that, the petitioners have also contended that inasmuch as the respondents have presented the appeal papers with deficit Court fees and only 13.03.2009, they had re-presented the papers by paying the proper Court fees, accordingly, it is contended that the respondents having failed to pay the requisite Court fees within the time allowed by law necessary for the presentation of the appeal papers and on the other hand, had chosen to re-present the appeal papers with the requisite Court fees only on 13.03.2009 beyond the point of limitation and even as regards the same, the respondents having not come forward with necessary application for seeking the permission of the Court in paying the deficit Court fees as provided under Section 149 of the Code of Civil Procedure, accordingly, prayed for the dismissal of the application. 6. Insofar as the reasoning given by the respondents that they were unable to resubmit the appeal papers in time on account of the avocation of the first respondent in other station having been seriously challenged by the petitioners, in such view of the matter, considering the huge and inordinate delay, which had occurred in the re-presentation of the papers, the respondents should have endeavoured to place acceptable proof as regards the abovesaid cause. However, absolutely, there is no material projected on the part of the respondents with reference to the same. In such view of the matter, the Court below should not have endeavoured to entertain the abovesaid application preferred by the respondents, without they pleading acceptable cause and also substantiating the same with reliable materials. On the abovesaid ground alone, in my considered opinion, the impugned order is liable to be set aside. 7. In such view of the matter, the Court below should not have endeavoured to entertain the abovesaid application preferred by the respondents, without they pleading acceptable cause and also substantiating the same with reliable materials. On the abovesaid ground alone, in my considered opinion, the impugned order is liable to be set aside. 7. Furthermore, admittedly, the respondents have not paid the requisite Court fees along with the presentation of the appeal papers. On the other hand, only after the appeal papers had been returned for compliance of certain defects, including the payment of the Court fees, it is seen that title respondents had chosen to re-present the appeal papers only on 13.03.2009 with the requisite Court fees and also complying with the other defects pointed out by the Court. In such view of the matter, when it is found that the respondents had paid the Court fees required for the proper presentation of the appeal papers beyond the period of limitation and when as regards the same, the respondents have not chosen to obtain the permission from the Court lawfully, as provided under Section 149 of the Code of Civil Procedure, considering the principles of law outlined in the decisions relied upon by the petitioners' counsel in K. Dhanavelu vs. K.S.M. Venugopal, reported in AIR 2016 Madras 196; N. Ganesan vs. Vadivel, reported in (2016) 4 MLJ 765 ; A. Muthusamy vs. Muniammal and others, reported in (2006) 1 CTC 187 ; Order dated 14.08.2018 in C.R.P. (PD) (MD) No. 1349 of 2016 (S.V. Ramasamy vs. S.V. Bharathan) and the Judgment, dated 18.07.2011 in O.S.A.SR. No. 43783 of 2011 (A. Anandan and others vs. K. Amutha), in all, on that score also, it is found that the respondents' application should have been rejected by the Court below and on the other hand, the Court below, without considering the abovesaid legal aspects of the matter, is found to have entertained the application and on that ground also, the impugned order is found to be unsustainable. 8. In the light of the above discussions, the fair and decreetal orders, dated 07.09.2009, passed in I.A. No. 19 of 2009 in A.S. No. ....of 2009, on the file of the Subordinate Court, Paramakudi, are set aside and consequently, I.A. No. 19 of 2009 in A.S. No. ....of 2009, on the file of the Subordinate Court, Paramakudi, is hereby dismissed. In the light of the above discussions, the fair and decreetal orders, dated 07.09.2009, passed in I.A. No. 19 of 2009 in A.S. No. ....of 2009, on the file of the Subordinate Court, Paramakudi, are set aside and consequently, I.A. No. 19 of 2009 in A.S. No. ....of 2009, on the file of the Subordinate Court, Paramakudi, is hereby dismissed. Resultantly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.