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2019 DIGILAW 2993 (MAD)

Ayyandhurai v. Marimuthu

2019-11-05

R.PONGIAPPAN

body2019
JUDGMENT : R. PONGIAPPAN, J. Prayer: This Civil Revision Petition has been filed under Article 227 of the Constitution of India, against the order dated 28.03.2014 passed in IA No. 260 of 2013 in OS No. 12 of 2007, on the file of the learned Subordinate Judge, Hosur. 1. Aggrieved over the order dated 28.03.2014 made in IA No. 260 of 2013 in OS No. 12 of 2007, on the file of the learned Subordinate Judge, Hosur, the plaintiff in the above referred suit, has filed the Civil Revision Petition and prayed to set aside the impugned order, under which, the learned Subordinate Judge, Hosur, allowed the application filed by the 1st defendant and condoned the delay of 1532 days, in filing the application to set aside the ex-parte decree dated 12.08.2008 made in OS No. 12 of 2007. 2. The averments set out by the petitioner/1st defendant/respondent, in support of his condonation petition in IA No. 260 of 2013, are as follows: (i) The petitioner/1st defendant/respondent is related to the respondent/plaintiff/ revision petitioner, as brother-in-law. The respondent/plaintiff/revision petitioner has filed a suit in OS No. 12 of 2007, before the learned Subordinate Judge, Hosur, for specific performance, alleging that the petitioner/1st defendant/respondent executed a sale agreement in his favour on 25.05.2005. After receiving the summons, the petitioner/1st defendant/respondent convened a panchayat and in the said panchayat, the respondent/ plaintiff/revision petitioner agreed to withdraw the suit, as the petitioner/1st defendant/ respondent, has not executed any sale agreement in his favour. (ii) Believing the words of the respondent/plaintiff/revision petitioner, the petitioner/1st defendant/respondent did not contest the suit. However, the respondent/plaintiff/revision petitioner seems to have taken an ex-parte decree on 12.08.2008. Coming to know the ex-parte decree dated 12.08.2008, the petitioner/1st defendant/respondent filed an application to set aside the ex-parte decree, with a condonation application in IA No. 260 of 2013 under Section 5 of the Limitation Act, praying to condone the delay of 1532 days in filing. The non-appearance of the petitioner/1st defendant/respondent before the trial Court is neither wilful nor wanton. Alongwith the condonation petition, written statement has also been filed. 3. The short facts set out in the counter affidavit filed by the respondent/plaintiff/revision petitioner, are as follows: (i) It is true that respondent/plaintiff/revision petitioner has filed a suit for the relief of specific performance on the basis of the sale agreement executed by him. Alongwith the condonation petition, written statement has also been filed. 3. The short facts set out in the counter affidavit filed by the respondent/plaintiff/revision petitioner, are as follows: (i) It is true that respondent/plaintiff/revision petitioner has filed a suit for the relief of specific performance on the basis of the sale agreement executed by him. It is not correct to say that a panchayat was convened, in which respondent/plaintiff/revision petitioner, agreed to withdraw the suit. There is no bonafide reason to file this petition. The petitioner/1st defendant/respondent entered into a sale agreement with the respondent/ plaintiff/revision petitioner on 25.05.2005 for a sum of Rs. 1,40,000/- and he paid a sum of Rs. 1,20,000/- as advance and the balance sale consideration of Rs. 20,000/- has be paid within 11 months. Since the petitioner/1st defendant/respondent did not comply with the same, respondent/plaintiff/revision petitioner, issued a legal notice dated 15.04.2006. (ii) After receiving the notice, instead of performing his part of contract, the petitioner/1st defendant/respondent have created a nominal sale deed in favour of the 2nd defendant for a value of Rs. 25,200/- on 02.09.2005. Again in turn the 2nd defendant seems to have created another nominal sale deed dated 28.09.2006 for a sum of Rs. 30,000/- in favour of the 3rd defendant. In both the sale deeds the property was shown as vacant site, whereas, a house is situated in the schedule mentioned property. (iii) Based on the decree dated 12.08.2008, an execution petition in REP No. 197 of 2009, was filed and thereafter, sale deed has also been executed in favour of the respondent/ plaintiff/revision petitioner on 16.03.2011. On the basis of the sale deed and the decree and judgment, the respondent/plaintiff/revision petitioner filed a petition in REA No. 6 of 2012, so as to get delivery of possession to the scheduled mentioned property. In all the above said proceedings, though notices and summons were served, the petitioner/1st defendant/ respondent was purposely evading to appear before the Court and to defend this case, only to harass the respondent/plaintiff/revision petitioner. 4. Having considered all the materials placed before him, the learned Subordinate Judge, Hosur by order dated 28.03.2014, allowed the application viz. IA No. 260 of 2013, filed by the petitioner/1st defendant/respondent, after imposing costs of Rs. 30,000/- payable by the petitioner/1st defendant/respondent to the respondent/plaintiff/revision petitioner. 5. 4. Having considered all the materials placed before him, the learned Subordinate Judge, Hosur by order dated 28.03.2014, allowed the application viz. IA No. 260 of 2013, filed by the petitioner/1st defendant/respondent, after imposing costs of Rs. 30,000/- payable by the petitioner/1st defendant/respondent to the respondent/plaintiff/revision petitioner. 5. Aggrieved over the same, the respondent/plaintiff/revision petitioner in the above said interlocutory application is before this Court, with the Civil Revision Petition. 6. Today, when the Civil Revision Petition came up for hearing, both the learned counsel appearing for the respondent/plaintiff/revision petitioner and the petitioner/1st defendant/ respondent were present. 7. Learned counsel for the respondent/plaintiff/revision petitioner submitted that in a business run by the respondent/plaintiff/revision petitioner and petitioner/1st defendant/ respondent along with other partners, loans incurred and hence, the respondent/plaintiff/ revision petitioner opted to exclude from the partnership. Therefore, it was agreed by the running partners that respondent/plaintiff/revision petitioner would be paid Rs. 51,000/- in 11 months by the petitioner/1st defendant/respondent and one Ravichandran, another partner and in this regard Ex.P1, Muchalika, came to be executed in the year 2003. According to respondent/plaintiff/revision petitioner, the said amount was not fully cleared and there are still some amount to the paid by the erstwhile partners. 8. Learned counsel for the respondent/plaintiff/revision petitioner further submitted that after filing of the suit in the year 2007, no panchayat was convened, as alleged by the petitioner/1st defendant/respondent and no document was produced on the side of the petitioner/1st defendant/respondent to prove the same. 9. The learned counsel for the respondent/plaintiff/revision petitioner would further contend that the learned Subordinate Judge, Hosur, without considering the said conduct of the petitioner/1st defendant/respondent and also there being no substantive proof or evidence, allowed the petition filed by the petitioner/1st defendant/respondent, which is against the principles of law. 10. On the other hand, the learned counsel appearing for the petitioner/1st defendant/ respondent submitted that the petitioner/1st defendant/respondent, being an illiterate and totally believing the words of respondent/plaintiff/revision petitioner, who is none other than his own brother-in-law, kept quite for some more time and only now, came to know the tricks played by the respondent/plaintiff/revision petitioner. 11. 10. On the other hand, the learned counsel appearing for the petitioner/1st defendant/ respondent submitted that the petitioner/1st defendant/respondent, being an illiterate and totally believing the words of respondent/plaintiff/revision petitioner, who is none other than his own brother-in-law, kept quite for some more time and only now, came to know the tricks played by the respondent/plaintiff/revision petitioner. 11. However, considering the fact that before the trial Court, when the petitioner/1st defendant/respondent filed application under Section 5 of the Limitation Act, to condone the delay of 1532 days in presenting the petition to set aside the ex-parte decree, it is the duty vested on him to show sufficient cause to condone the delay. It is not in dispute that except the averment, that in the panchayat, since the respondent/plaintiff/revision petitioner assured that he would withdraw the suit, the petitioner/1st defendant/respondent, has kept quite for some time, no other reason is stated by the petitioner/1st defendant/ respondent, for condoning the delay. 12. Now, on going through the other circumstances before the trial Court, after passing an ex-parte decree, the respondent/plaintiff/revision petitioner filed an execution application in which the petitioner/1st defendant/respondent, has received the notice. Immediately after receiving the notice, he has not filed any application to set aside the ex-parte decree. Furthermore, even at the time of executing the sale deed he has not raised any objection and it shows that the petitioner/1st defendant/respondent was constantly watching the proceedings initiated in OS No. 12 of 2007. 13. It cannot be said that the ex-parte decree was executed by the respondent/plaintiff/ revision petitioner, without the knowledge of the petitioner/1st defendant/respondent. Only at the time, when the Amin attempted to deliver the property, the petitioner/1st defendant/ respondent made resistance and the matter is pending. In the said circumstances, it cannot be said that the delay of 1532 days is a small one. Being the relative, there is every possibility for the petitioner/1st defendant/respondent to know the day-to-day proceedings, which happened in the suit filed by the respondent/plaintiff/revision petitioner and so, after constantly watching the entire proceedings, petitioner/1st defendant/respondent has filed the application to set aside the ex-parte decree, nearly after four years, which cannot be appreciated. 14. Being the relative, there is every possibility for the petitioner/1st defendant/respondent to know the day-to-day proceedings, which happened in the suit filed by the respondent/plaintiff/revision petitioner and so, after constantly watching the entire proceedings, petitioner/1st defendant/respondent has filed the application to set aside the ex-parte decree, nearly after four years, which cannot be appreciated. 14. Though, the petitioner/1st defendant/respondent has not projected a sufficient cause, the learned Subordinate Judge, Hosur, without appreciating the fact that the respondent/1st defendant has been constantly watching the entire proceedings before the trial Court, by discussing the evidence given by the petitioner/1st defendant/respondent and respondent/ plaintiff/revision petitioner, came to the conclusion that the delay in presenting the appeal, is condonable. 15. Further, the evidence let in by the petitioner/1st defendant/respondent and respondent/ plaintiff/revision petitioner, before the trial Court, relates to the period ending before the filing of the suit. The suit was filed only in the year 2007. Ex.P1, the Panchayat Muchalika dated 27.02.2003, is also before the filing of the suit. So, the earlier incidents, which happened before the said date, do not have any importance for deciding the interlocutory application filed for condoning the delay in filing a petition to set aside the ex-parte decree. 16. In the light of the above discussion, this Court is of the firm opinion that the petitioner/ 1st defendant/respondent has not projected sufficient cause to condone the delay and therefore, the impugned order is liable to be set aside. Accordingly, the order dated 28.03.2014 made in I.A. No. 260 of 2013 in O.S. No. 12 of 2007 on the file of the learned Subordinate Judge, Hosur, is set aside. Civil Revision Petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.