Madras High Court
Selvaraj vs Dhanalakshmi on 5 February, 2021
CRP(MD)No.146 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.146 of 2021
and
CMP(MD)No.885 of 2021
Selvaraj ... Petitioner
vs.
Dhanalakshmi ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated
13.10.2020 in I.A.No.1 of 2020 in O.S.No.236 of 2010 on the file of the
Additional Subordinate Judge, Tirunelveli.
For Petitioner : Mr.G.Prabhu Rajadurai
ORDER
This revision petition has been filed against the fair and decreetal
order dated 13.10.2020 in I.A.No.1 of 2020 in O.S.No.236 of 2010 on
the file of the Additional Subordinate Judge, Tirunelveli.
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CRP(MD)No.146 of 2021
2.The learned counsel for the petitioner would state that the
respondent herein as plaintiff filed O.S.No.236 of 2010 which was
previously numbered as O.S.No.49 of 2007 before the Additional Sub
Court, Tirunelveli, for the relief of direction directing the
petitioner/defendant to pay a sum of Rs.5,60,000/- with subsequent
interest at the rate of 12% per annum and in default, directing the
schedule property to be sold through the court and to pay the amount due
to the respondent/plaintiff.
3.According to the petitioner/defendant in the present revision
petition, he borrowed a sum of Rs.2,00,000/- from the
respondent/plaintiff on 31.01.2000 and executed a registered mortgage
deed in respect of the suit schedule property in favour of the
respondent/plaintiff and agreed to repay the mortgage debt within two
years. It is also contended that the petitioner/defendant has to pay the
interest at the rate of 24% per annum for two years, and in default, agreed
to pay the compound interest along with principal and accrued interest.
But, since the petitioner/defendant had not paid the interest or the
principal amount, a notice was sent by the respondent/plaintiff to the
petitioner/defendant and the above suit was filed for recovery of the loan
amount with interest.
4.The learned counsel for the petitioner would further state that the
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CRP(MD)No.146 of 2021
petitioner/defendant filed a written statement admitting the execution of
the registered mortgage deed and the reception of Rs.2,00,000/- as true,
but denied the statement regarding the non-payment of interest amount
stating that it was properly paid. It is further stated that he was paying
the interest amount every month to the respondent/plaintiff through one
Village Administrative Officer namely, Mr.Rajendran and he also claimed
that interest was highly exorbitant and he would also state that the
learned Judge did not have any territorial jurisdiction as to the suit
schedule property.
5.According to the petitioner/defendant, since he was not able to
appear before the Court, he was set exparte and exparte decree was
passed on 07.10.2014. Challenging the exparte decree, he preferred an
application to set aside the exparte decree and the same was dismissed
for non payment of cost and hence the petitioner preferred revisions
before this Court. In the meanwhile, the respondent filed an application
in I.A.No.279 of 2015 before the Additional Sub Judge, Tirunelveli, for
passing of final decree. Since the petitioner/defendant could not appear,
the learned Judge by order dated 21.04.2017 passed the final decree and
challenging the same, the petitioner preferred appeal in A.S.No.119 of
2017 before the 1st Additional District Judge, Tirunelveli, and the same
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CRP(MD)No.146 of 2021
was dismissed holding that the order passed by the learned Judge did not
warrant any interference, against which, the petitioner/defendant
preferred second appeal in S.A(MD)No.45 of 2020. Since the learned
Judge has dismissed the present application erroneously by order dated
13.10.2020, stating that the petitioner has not raised the plea of
jurisdictional issue, the learned counsel for the petitioner would state that
the petitioner has filed the present revision petition against that order.
6.Heard the learned counsel for the petitioner. In view of the order
going to be passed, notice to respondent is not necessary.
7.At the outset, this revision petition has to be dismissed with
heavy cost. The suit was decreed exparte on 07.01.2014 and
petitioner/defendant has filed application in I.A.No.843 of 2015 to
condone the delay of 236 days in filing the application to set aside the
exparte decree and by order dated 01.08.2016, the trial Court allowed the
application in I.A.No.843 of 2015 subject to a condition that the
defendant pays a cost of Rs.1,250/- to the Legal Aid Centre on or before
10.08.2016. The said amount was not paid and hence, application in
I.A.No.843 of 2015 came to be dismissed for non compliance of the
conditional order dated 01.08.2016. Immediately thereafter, the
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CRP(MD)No.146 of 2021
petitioner/defendant filed two applications in I.A.Nos.582 and 583 of
2016 seeking extension of time for payment of cost and to set aside the
order dismissing I.A.No.843 of 2015 for not complying with the
conditional order. Those two applications were dismissed by the trial
Court on 22.11.2016. Aggrieved over the same, the petitioner has filed
revision petitions in CRP(MD)Nos.604 and 605 of 2017. In the
interregnum period, I.A.No.279 of 2015 filed by the respondent/plaintiff
for passing of final decree was allowed, against which, the petitioner
filed appeal in A.S.No.199 of 2017 and that was also dismissed, against
which, he filed S.A(MD)No.45 of 2020.
8.When CRP(MD)Nos.604 and 605 of 2017 had come up for final
hearing, recording the entire happenings, this Court found that the trial
Court finding that there was negligence on the part of the
petitioner/defendant in prosecuting the suit and the negligence disentitled
the petitioner/defendant from seeking indulgence of the Court for
extension of time under Section 148 CPC, dismissed I.A.Nos.582 and
583 of 2016. Therefore, finding that it is a fit case where the petitioner
has to be given an opportunity as the petitioner wants to defend the suit
with regard to the quantum of interest alone, and by relying on the
judgment reported in University of Delhi vs. Union of India reported in
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CRP(MD)No.146 of 2021
2019 SCC Online SC 1634, wherein, it has been held that the Court
should have pragmatic approach in the matters of condonation of delay,
this Court by order dated 09.01.2020 in CRP(MD)Nos.604 and 605 of
2017, thought it fit that the petitioner should be given a chance to
conduct the suit and accordingly allowed both the applications in
I.A.Nos.582 and 583 of 2016. During the course of hearing of the above
CRP(MD)Nos.604 and 605 of 2017, the petitioner paid the cost of Rs.
1,250/- as ordered in I.A.No.843 of 2016 to the learned counsel for the
respondent and such payment was also recorded. This Court by taking
into consideration the long pendency of the above suit also, set aside the
exparte decree passed in the suit in O.S.No.49 of 2007 dated 07.10.2014
and restored the suit in O.S.No.49 of 2007 on file which was later on
numbered as O.S.No.236 of 2010.
9.In the order passed in CRP(MD)Nos.604 and 605 of 2017, the
suit number has been wrongly mentioned as O.S.No.19 of 2007 instead
of O.S.No.49 of 2007 which has been renumbered as O.S.No.236 of 2010
and since the suit has been unnecessarily delayed, due to the pendency of
the above CRPs and taking into account the admission of the defendant
as to the borrowing of Rs.2,00,000/-, this Court in the above CRPs, also
directed the petitioner to pay the principal sum of Rs.2,00,000/- and
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CRP(MD)No.146 of 2021
accordingly the learned counsel for the petitioner has handed over a
Demand Draft for a sum of Rs.2,00,000/- to the learned counsel for the
respondent and such payment was also recorded. It was also made clear
that the payment will be subject to the result of the suit and it shall be
adjusted first towards the interest that is found to be payable by the
petitioner as it is done in matters relating to payment under a money
decree and accordingly, such an order came to be passed on 09.01.2020
in CRP.Nos.604 and 605 of 2017.
10.In view of the order passed in CRP.Nos.604 and 605 of 2017,
dated 09.01.2020, the second appeal in S.A(MD)No.45 of 2020 was also
allowed by judgment and decree dated 09.01.2020 and the suit in
O.S.No.236 of 2010 was restored to file. The trial Court was directed to
dispose of the suit on or before 30.04.2020 and report compliance to this
Court. Thereafter, the matter has come up by way of extension of time
on 21.07.2020 and this Court by order dated 21.07.2020 has granted
three more months to dispose of O.S.No.236 of 2010.
11.Now, concealing all the facts which had been taken place before
this Court and the order passed by the learned Judge in CRP(MD)Nos.
604 and 605 of 2017, in the index to the typedset of papers filed in this
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CRP(MD)No.146 of 2021
revision, the CRP number has been shown as CRP(MD)No.604 of 2011
and the matter was called for by this Court. It was found that
CRP(MD)No.604 of 2011 has nothing to do with the present case and
while probing it, it was found that it was CRP(MD)Nos.604 and 605 of
2017. This Court called for the case bundles in CRP(MD)Nos.604 and
605 of 2017 and S.A(MD)No.45 of 2020 and had found the entire
happenings before the court by dates and events and it is unfortunate that
in spite of the orders passed by this Court to dispose of the suit within a
time frame, now the present revision petition has been filed totally
suppressing the entire happenings and the petitioner has come forward as
if the Court has got no jurisdiction in dealing with the above matter. If
the petitioner found that the Court did not have jurisdiction, he could
have raised the same before this Court which dealt with CRP(MD)Nos.
604 and 605 of 2017 and S.A(MD)No.45 of 2020. It is very unfortunate
case where the respondent/plaintiff is made to wait from 2007 onwards
and not able to get her remedy.
12.In view of the above discussion, this Civil Revision Petition is
dismissed with the cost of Rs.50,000/- which amount shall be recovered
from the petitioner along with the amount which he will be due when the
suit is disposed of. The learned Additional Sub Judge, Tirunelveli, is
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CRP(MD)No.146 of 2021
directed to dispose of the suit in O.S.No.236 of 2010 on day-to-day basis
within a period of four weeks from the date of receipt of a copy of this
order. Consequently, connected miscellaneous petition is closed.
05.02.2021
Index : Yes / No
Internet: Yes / No
bala/msa
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.
To
The Additional Subordinate Judge,
Tirunelveli.
https://www.mhc.tn.gov.in/judis/
CRP(MD)No.146 of 2021
J.NISHA BANU, J.
bala/msa
ORDER MADE IN
CMA(MD)No.146 of 2021
DATED : 05.02.2021
https://www.mhc.tn.gov.in/judis/
