Madras High Court
Seenivasan vs N.Kumaran on 13 December, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.M.P (MD) No.2549 of 2021
in
C.R.P (MD) No.SR12117 of 2020
Seenivasan ... Petitioner
Vs.
N.Kumaran ... Respondent
PRAYER (C.M.P.(MD)No. 2549 of 2021): Civil Miscellaneous petition
filed under Section 5 of the Limitation Act, to condone the delay of 641
days in preferring the above civil revision petition before this Court.
PRAYER (C.R.P (MD)No.SR 12117 of 2020): This Civil Revision
Petition filed under Section 115 of the Code of Civil Procedure, to set
aside the fair and decretal order dated 13.02.2018 made in I.A.No.167 of
2016 in O.S.No.12 of 2014 on the file of the learned Principal District
Judge, Dindigul and allow the above civil revision petition.
For Petitioner : Mr.C.Gangai Amaran
For Respondent : Mr.R.Thanga Pandian
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ORDER
This petition is filed by the revision petitioner to condone the delay
of 641 days in preferring the civil revision petition challenging the order
passed in I.A.No.167 of 2016 in O.S.No.12 of 2014.
2.The facts in brief are as follows:-
(i) The respondent herein had filed a suit in O.S.No.12 of 2014 for
specific performance of an agreement of sale deed, dated 17.02.2011.
It is the case of the respondent that the petitioner and he had entered into
an agreement of sale for the purchase of the suit schedule property under
the terms of the contract, namely, the agreement of sale. The advance
that has been finalized was a sum of Rs.22 lakhs and on the date of the
signing of the agreement, a sum of Rs.20 lakhs was paid. Thereafter, a
time frame of three years was provided for paying the balance sale
consideration of Rs.2,00,000/-.
(ii) The respondent/plaintiff would submit that although he had
kept the balance amount ready, the petitioner/defendant had not come
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forward to receive the balance sale consideration and execute the sale
deed. This constrained the respondent herein to issue a notice dated
14.12.2013 calling upon the petitioner to execute the sale deed. A reply
was sent denying the very agreement and contending that it was nothing,
but a security for a loan. Thereafter, the respondent had filed the suit in
question. The petitioner had entered appearance through a counsel and
despite several adjournments being granted, had not come forward to file
the written statement. Consequently, the revision petitioner was set
ex parte and an ex parte order was passed against him. Thereafter, on
21.07.2015, an ex parte decree came to be passed.
(iii) The respondent herein filed the execution proceedings in
E.P.No.70 of 2016 on the file of the learned Principal District Judge,
Dindgul. After summons was received by the revision petitioner on
13.03.2016, he came to know about the ex parte decree. Thereafter, on
15.03.2016 the revision petitioner had filed the impugned interlocutory
application. The learned Principal District Judge took note of the fact
that the petitioner was set ex parte on 08.12.2014 and decree came to be
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passed only on 21.07.2015. The learned Judge had also taken note of the
fact that at the request of the petitioner the suit was adjourned on
six occasions for his counter and since the counter was not forthcoming,
the interlocutory application was dismissed. Challenging the said order
passed on 13.02.2018, the revision petitioner has filed the above civil
revision petition in the year 2020 with the delay of 641 days and it is this
petition that is now before me.
3.Mr.V.Meenakshi Sundaram, the learned counsel appearing on
behalf of the petitioner/ defendant would submit that the ex parte
judgment is totally a non speaking judgment and there is no reference to
the readiness and willingness of the plaintiff/respondent herein, which he
would submit that this is the sine qua non in a suit for specific
performance. He would submit that the bundles got misplaced and after
great deal of search, the same was found and immediately, this petition
has been filed.
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4.Mr.R.Thangapandian, learned counsel for the respondent/
plaintiff would submit that not only there is a delay of 641 days in filing
this petition, but in the order impugned before this Court there is a delay
of 238 days which had not been condoned. He would submit that the
revision petitioner is not only reluctant to prosecute the case, but is also
adopting tactics to be somehow prevent the plaintiff from executing the
decree for specific performance and taking delivery of the property. He
would further submit that the application should be dismissed.
5.Heard the learned counsels appearing on either side and perused
the records.
6.Admittedly, the revision petitioner herein had entered appearance
in E.P.No.70 of 2016 and contested the same. Therefore, the contention
in paragraph No.9 of the affidavit filed in support of the petition to
condone the delay, appears to be false and concocted one. The
execution proceedings have been filed for having the sale deed executed
in favour of the respondent herein. The revision petitioner would submit
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that they have questioned the agreement of sale on the ground that it was
only executed as a security for a loan. If the contentions were true, then
the petitioner would have been more diligent in prosecuting his case.
The revision petitioner has been participating in the execution petition
and therefore, he would have been very much aware of the fact that no
order had been obtained in the civil revision petition. He ought to have
followed it up with counsel to whom he had entrusted the matter for
filing a revision. The only explanation is given in paragraph No.9 of the
affidavit filed in support of the condonation petition, which reads as
follows:-
9.I further submit that there after the said order
copy has been somehow misplaced in my advocate office
and inspite of best efforts could not be traced. I also in
the meanwhile suffered serious illness and could not move
from the bed and was under treatment. I submit that only
last week, I met my advocate and after frantic search the
order copy was traced and I requested my advocate to file
the above civil revision petition and the same was
according the same has been preferred. However, there
was some delay in filing the above civil revision petition.
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The same is neither wilful nor wanton but bona fide
reasons. Unless the said delay in filing the present civil
revision petition is condoned, I will be put to great loss
and hardship.
7.The above contention does not appear to be satisfactory and
sufficient. Accordingly, this Civil Miscellaneous Petition to condone the
delay of 641 days is dismissed. Consequently, the Civil Revision
Petition, which is in SR stage is rejected. No costs.
13.12.2021
Index : Yes/No
Internet : Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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P.T.ASHA, J.
cp
To
The Principal District Judge,
Dindigul.
C.M.P (MD) No.2549 of 2021
in
C.R.P (MD) No.SR12117 of 2020
13.12.2021
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https://www.mhc.tn.gov.in/judis
