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2019 DIGILAW 344 (MAD)

C. Balasubramanian @ Murugaan v. Velusamy

2019-02-01

T.RAVINDRAN

body2019
ORDER : The civil revision petition is directed against the fair and decreetal orders, dated 10.08.2010, passed in I.A.No.95 of 2008 in O.S.No.731 of 2004, on the file of the Additional District Munsif Court, Tuticorin. 2. The first respondent has laid the suit against the second respondent herein and the revision petitioner in O.S.No.731 of 2004 for permanent injunction to restrain the revision petitioner from evicting him from the suit property except in accordance with due process of law. It is found that in the above suit, the revision petitioner had been set ex parte on account of his failure to file the written statement and consequently, the ex parte decree had come to be passed against him and in favour of the first respondent on 11.03.2005. Seeking to set aside the ex parte decree passed against him, the revision petitioner has come forward with an application. However, inasmuch as a delay of 1222 days had occurred in preferring the abovesaid application to condone the said delay, he has preferred I.A.No.95 of 2008. 3. With reference to the delay, the reasons given by the revision petitioner are that inasmuch the first respondent had assured to vacate the suit property in the month of February, 2005 and accordingly, also promised that at the time of vacating the suit property, he would withdraw the suit and believing the abovesaid version of the first respondent, it is stated that the revision petitioner has not met his Advocate and filed the written statement and accordingly, his Advocate having reported no instructions, the ex parte decree had come to be passed in the abovesaid suit and further contended that the first respondent has never been in the possession of the suit property and only at the instigation of the second respondent herein, he has preferred the suit and at present, the second respondent is projecting a false claim in respect of the suit property without any basis and also taking advantage of the ex parte decree passed against the revision petitioner in the suit and in such view of the matter, prayed for the condonation of the delay. 4. 4. The first respondent resisted the abovesaid case of the revision petitioner contending that the reasons given by the revision petitioner for the delay are false and unacceptable and refuted the allegation that he had assured to vacate the suit property in the month of February, 2005 and promised to withdraw the suit at the time of vacating the suit property and only on account of the same, the revision petitioner had not filed the written statement and putforth the case that inasmuch as the revision petitioner attempted to disturb his possession in an illegal manner, he had been necessitated to lay the suit against him and even after the ex parte decree had been passed in the suit in his favour, the revision petitioner with the aid of the Police had been causing interference in the first respondent enjoying the suit property and furthermore, inasmuch as the first respondent was not able to locate a suitable house for his accommodation elsewhere, he had vacated the suit property and handed over the possession to the second respondent and for that reason, the case of the revision petitioner that the ex parte decree passed against him in the suit should be set aside is not sustainable and the revision petitioner has not given sufficient cause for the delay and accordingly, prayed for the dismissal of the application. 5. The Court below, based on the materials placed on record, was pleased to dismiss the application preferred by the revision petitioner. Aggrieved over the same, the revision petitioner has come forward with the civil revision petition. 6. The first respondent has laid the suit against the revision petitioner, in particular, seeking the relief of permanent injunction to restrain the revision petitioner from evicting him from the suit property unlawfully except in accordance with law and it is noted that inasmuch as the revision petitioner has failed to file the written statement in the abovesaid suit, the ex parte decree had come to be passed against him. Seeking to set aside the ex parte decree, the revision petitioner has preferred an application. However, as there occurred a delay of 1222 days in preferring the abovesaid application, seeking to condone the said delay, the revision petitioner has come forward with an application in I.A.No.95 of 2008. 7. Seeking to set aside the ex parte decree, the revision petitioner has preferred an application. However, as there occurred a delay of 1222 days in preferring the abovesaid application, seeking to condone the said delay, the revision petitioner has come forward with an application in I.A.No.95 of 2008. 7. The reasons given by the revision petitioner for the delay are that inasmuch as the first respondent had assured to vacate the suit property in the month of February, 2005 and also promised to withdraw the suit at the time of vacating the suit property, believing his version, he had not contacted his counsel and filed the written statement in the suit laid by him and resultantly, he had been set ex parte and subsequently, the first respondent appears to have handed over the possession of the suit property to the second respondent herein and on that basis, the second respondent is staking a false claim to the suit property and hence, it is stated that the first respondent has been necessitated to prefer the application seeking to set aside the ex parte decree passed against him in the suit and accordingly, prayed for the condonation of the delay. 8. The abovesaid reasons projected by the revision petitioner for the delay are being stoutly challenged and repudiated by the first respondent. According to the first respondent, inasmuch as the revision petitioner had failed to contest the matter by filing the written statement, he had been set ex parte and an ex parte decree had been passed in favour of the first respondent and thereafter, despite the passing of the ex parte decree, as the revision petitioner had persisted in evicting the first respondent from the suit property with the aid of the Police and furthermore as the first respondent was unable to find a suitable accommodation, eventually he had vacated the suit property and handed over the possession to the second respondent and therefore, contended that the reasons given by the revision petitioner for the delay are false and accordingly, prayed for the dismissal of the application. 9. It is not the case of the revision petitioner that he is not aware of the pendency of the suit laid by the first respondent against him. 9. It is not the case of the revision petitioner that he is not aware of the pendency of the suit laid by the first respondent against him. In fact, it is found that the first respondent in the suit preferred by him had sought the relief of permanent injunction only against the first respondent and not against the second respondent. In such view of the matter, the revision petitioner on entering appearance in the suit through his Advocate, if really according to him, the first respondent is not in possession of the suit property or acting in collusion with the second respondent, he should have endeavoured to contest the suit laid by the first respondent by filing a written statement as per law. On the other hand, it is found that inasmuch as the revision petitioner had failed to file the written statement, consequently, he had been set ex-parte in the suit and the ex parte decree had come to be passed in favour of the first respondent. 10. As regards the delay projected in the matter, it is the case of the revision petitioner that inasmuch as the first respondent had assured to vacate the suit property in the month of February, 2005 and promised to withdraw the suit at the time of vacating the suit property, he has not preferred the written statement in the suit. The abovesaid factors are stoutly resisted by the first respondent. As abovenoted and as rightly determined by the Court below, when according to the revision petitioner, the first respondent is not in lawful possession of the suit property and furthermore, if really as putforth by him, the first respondent had assured to vacate the suit property and agreed to withdraw the suit, to ensure that the first respondent keeps up his promise, the revision petitioner should have diligently defended the suit proceedings and ensured that the first respondent had acted as per the assurance given by him. Furthermore, if really the first respondent had agreed to vacate the suit property, as putforth by the revision petitioner, nothing prevented the revision petitioner to bring the same to the notice of the Court and ensure that the suit is withdrawn by the first respondent. Furthermore, if really the first respondent had agreed to vacate the suit property, as putforth by the revision petitioner, nothing prevented the revision petitioner to bring the same to the notice of the Court and ensure that the suit is withdrawn by the first respondent. When the parties are at tussle at the time of the alleged assurance given by the first respondent that he would vacate the suit property, to say that the revision petitioner had placed complete reliance upon the abovesaid bald assurance, without any written undertaking from the first respondent, as such, cannot be believed and accepted. As rightly determined by the Court below, the revision petitioner having entered appearance in the suit through his Advocate should have endeavoured to file the written statement within the time granted by the Court as regards the defence taken by him in the matter and his conduct in leaving the suit without filing the written statement would go to show that inasmuch as he has no defence at all to resist the first respondent's suit, it is found that he has left the matter to go ex parte against him. 11. Furthermore, as rightly determined by the Court below, when it is noted that the first respondent has vacated the suit property and handed over the possession to the second respondent, further when it is found that when even prior to the institution of the suit laid by the first respondent, the revision petitioner and the second respondent herein are vying with each other qua the claim of title to the suit property, it is found that the revision petitioner has come forward with the present petition only to settle the issue, which he has with the second respondent in respect of the claim of title to the suit property between them one way or the other and accordingly, it is seen that he is unable to come forward with acceptable cause for sustaining the huge and inordinate delay projected by him. Accordingly, it is found that the revision petitioner is unable to substantiate the cause alleged by him for the delay with convincing materials. Merely because the first respondent has not tendered evidence in the matter, that by itself, would not lead to the conclusion that the case of the revision petitioner is true. Accordingly, it is found that the revision petitioner is unable to substantiate the cause alleged by him for the delay with convincing materials. Merely because the first respondent has not tendered evidence in the matter, that by itself, would not lead to the conclusion that the case of the revision petitioner is true. As rightly found by the Court below, it is for the revision petitioner to sustain the cause projected by him for the huge and inordinate delay with proper proof and when the evidence adduced by the revision petitioner as well as the documents advanced by him are not conducive and supportive to the delay involved in the matter, in all, it is found that the Court below has rightly rejected the same and also consequently, dismissed the application preferred by the revision petitioner. 12. For the reasons aforestated, I do not find any valid cause to interfere with the impugned order of the Court below and accordingly, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.