Madras High Court
Aravind Engineering Industries vs Mr.B.Subramanaian on 19 February, 2021
C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.R.P.(NPD)No.1940 of 2018
and
Cmp.No.11221 of 2018
Aravind Engineering Industries,
Rep.by its Partner,
Mrs.R.N.Meera,
Officer at No.20, SBI Officer Colony,
Arumbakkam, Chennai – 600 106. ... Petitioner
Versus
Mr.B.Subramanaian ... Respondent
Civil Revision Petition filed under Section 115 of Civil
Procedure Code, to set aside the fair and decretal order passed in
I.A.No.16987 of 2017 in O.S.No.10839 of 2010 on the file of the learned
VII-Additional City Civil Judge, Chennai on 23.03.2018.
For Petitioner : Mr. K.M. Venugopal
For Respondent : Mr. P.V. Elango
https://www.mhc.tn.gov.in/judis/
1/13
C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
ORDER
This Civil Revision Petition has been filed challenging the order
dated 23.03.2018 passed in I.A.No.16987 of 2017 in O.S.No.10839 of
2010, filed under Section 5 of the Limitation Act, for condoning the delay
of 2015 days in filing the petition for setting aside the exparte order, dated
06.08.2012 passed by the Court below.
2.It is the contention of the revision petitioner that the Court
below condoned the delay of 2015 days without any valid reasons and the
respondent herein has not provided sufficient reasons or explained reason
for each and every day delay. The respondent entered appearance in the suit
and filed a petition for vacate injunction. Therefore, the respondent herein
is well aware of the fact of institution of the suit filed for specific
performance by the plaintiff. When such being the case, after the exparte
decree, an Execution Petition was filed, in which also the respondent was
set exparte. In the execution proceedings, summons were served and the
respondent herein received the same. Even on receipt of summon, he failed
to appear, therefore, the respondent was set exparte on 03.10.2016 in the
Execution Petition. Subsequently, the respondent filed the above said
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
application to condone the delay of 2015 days, to set aside the exparte
decree, in the year 2017. He has also filed a petition to set aside the exparte
decree in the Execution Petition. The exparte order was passed on merits
while so, an application to set aside the exparte order with a petition for
condoning the delay is not maintainable and only an appeal will lie. The
Court below has not considered all these facts and condoned the inordinate
delay of 2015 days in filing the application to set aside the exparte decree.
Even though the suit was filed for specific performance, the delay is
required to be explained for each and every day and in the absence of the
same, the Court below ought not to have condoned it. Therefore, the order
passed by the Court below is liable to be set aside and the Civil Revision
Petition has to be allowed.
3.On the other hand, the learned counsel for the respondent
submitted that he engaged a counsel in the main suit in O.S.No.10839 of
2010, he also filed an application to vacate injunction. However, thereafter,
the counsel has not communicated anything about the development in the
case and he was kept in dark about the pendency of the case. When
summons were served in the Execution Petition, he came to know about the
exparte order passed in the suit. Therefore, he filed an application for
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
condoning the delay on 2015 days in the month of December 2016 and the
same was genuine. All these facts were elaborately considered by the Court
below. He further stated that the suit was filed for specific performance,
larger interest of the respondent needs to be adjudicated by way of contest
and if the delay is not condoned the respondent could not adjudicate the
same. The right of the respondent cannot be decided merely on the basis of
the exparte decree passed by the court below. Therefore, he prayed to
dismiss the Civil Revision Petition and to permit the respondent to contest
the suit as per the law.
4.Heard the learned counsel for the petitioner and the learned
counsel appearing for the respondent and perused the materials available on
record.
5.The revision petitioner as well as the respondent entered into
the sale agreement dated 18.12.2006 with reference to a property measuring
1200 sq. ft., for a sum of Rs.21 lakhs. It appears that plaintiff paid Rs.7
Lakhs as advance. However, the respondent herein says only for a sum of
Rs.6 Lakhs, the document was signed. The time limit fixed in the
agreement for execution of the sale deed, was three months. On
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
21.11.2007, a telegram was sent to the defendant by the plaintiff. On
26.11.2007, another telegram was sent and thereafter, he had issued a legal
notice on 08.04.2018 demanding the plaintiff to pay the balance amount to
execute the sale deed. But within the time mentioned in the Sale agreement,
the entire amount was not paid by the revision petitioner and the Sale deed
has not been executed. It is stated that after 11 months, the plaintiff sent a
telegram by stating that he is ready and willing to get the sale deed
executed by the defendant. At the time of filing the suit during June 2009,
the plaintiff also not deposited any amount. Therefore, the issue of
readiness and willingness is necessarily required to be adjudicated by the
Court below.
6.However in the present case, unfortunately, the suit was
decreed exparte due to the non-appearance of the counsel for the
respondent herein. The reason stated by the respondent was that he has
engaged one counsel and he has not communicated anything about the
disposal of the case all along. That is the reason why, he has engaged a
different counsel to appear in this matter. All these aspects have been
clearly dealt with by the Court below, in an elaborate manner and it would
be appropriate to extract the relevant portion of the order of the Court
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
below as follows:
“10.Both sides heard. Records perused. On
perusal of records it is seen that the above suit 10839 of
2010 was filed by the plaintiff for the relief of specific
performance even in the year 2010 itself and after the
service stage and after filing the vakalat on behalf of the
defendants, he was set exparte for not filing the written
statement even on 24.02.2011 itself. After that, the case
was pending for exparte evidence till 2012 and
ultimately exparte evidence was taken on 30.07.2012
and order was passed on 06.08.2012 by passing a
decree in favour of the plaintiff for specific performance
and also further granting two months time to deposit the
balance sale consideration and further one month time
was given from the date of deposit for the execution of
sale deed. After approximately 4 years and 4 months,
now this application is filed to condone delay of 2015
days in filing the Order IX Rule 13 petition. It is
needless to say that in case of filing Section 5
application, it is bounden duty of the petitioner to
explain each and every day's delay with a convincing
explanation to the satisfaction of theCourt. The main
reason assigned by the petitioner for causing such a
lond delay is the advocate, who was engaged by the
defendant did not inform the things transpired in the
court and the petitioner was but in dark and he was not
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
at all intimated about the developments reached in the
Court. Further, it is stated that the petitioner is a semi
literate person only and he had become the absolute
owner of the property by virtue of release deed executed
by his sisters and brothers and mother in his favour and
further it is contended that for the mediation work did
by him the plaintiff used to give him money. In course of
the transaction he become indebted to the plaintiff to the
tune of Rs.6,00,000/- for which, he was compelled by the
plaintiff to put his signatre in the sale agreement and it
is the contention of the petitioner/plaintiff that right
from the date of execution of the agreement he
expressed his intention clearly to the
respondent/plaintiff that he never intended to sell the
property to the respondent/plaintiff and further, he is
willing to repay the amount and whenever he tried to
contact the respondent/plaintiff he could not contact
him and then only a suit was instituted by the
respondent/plaintiff for which he engaged counsel but
the counsel engaged did the thing on his wishes and did
things against him without informing about the
developments on the events which transpired in the
court. Ultimately, he was not been informed about the
setting him of exparte and passing of exparte decree in
favour of the respondent/plaintiff and because of non-
cooperative attitude and going against his interest he
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
had to engage two more advocats for his case and lastly
he engaged the present counsel who informed that he
had to conduct the case by filing petition to set aside
exparte decre since they are having a good defence in
the case. In the meanwhile he received the summons in
the execution proceedings and appeared before the lok
adalat and in that lok adalat proceeding only he wa
informed that the exparte decree has to be set aside to
get a frutiful results. Unless otherwise exparte decree is
set aside he will not be able to put forth his evidence.
Under these circumstances it was felt by him that
application is to be filed to condone the delay and to set
aside the exparte decree. After the lok adalat
proceedings as he had to face his childrens' exam and
make arrangements for their higher studies and also in
the meanwhile his mother-in-law got suffered
healthwise he had to look after all the things. So he was
not able to concentrate in filing of Section 5 application
and to give insturction to his counsel. So all these
resulted in the delay of 2015 days in preferring Section
5 application.
11.On the side of the respondent/plaintiff title
of the petitioner/defedant is not denied. The main
objection raised by them is that since it is an contested
decree and judgment the petitioner ought to have
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
preferrd appeal only. But on perusal of records it is
seen that the petitioner/defendant was set exparte for
not having filed written statement within the mandatory
period and only on taking exparte evidence the court
has passed a decree in favour of the
petitioner/defendant for specific performance. Hence,
the contention of the respondent only recourse available
to the petitioner/defendant is to prefer an appeal and
not to file Order IX Rule 9 petition is not correct. Hence
on that ground the objection taken by the
respondent/plaintiff is not sustainable.
12.The other objection raised by the
respondent/plaintiff is the number of days of delay is
wrong and but on perusal of records it is seen that the
petitioner/defendant was directed to file petition stating
the delay as 2015 days. So on that ground also the
objection raised is not acceptable and the oher
objection raised by the respoondent is that purposely
just to prolong the proceedings, the petitioner had filed
the petition stating that he was victimized by his own
counsel. It is a well beaten proposition of law that for
the errors and wrongs committed by the counsel the
client should not be victimized. Further on the side of
the petitioner/defendant it is objected that without filing
the written statement the petition filed by the
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
petitioner/defendant is not maintainable. But perusal of
records shows written statement is filed along with
petition in time.
13.Considering the fact that there is a triable
issue raised in the suit and in view of the contention
raised by the petitioner/defendant that he was compelled
to put his signature in the agreement while paying loan
amount by the respondent/plaintiff and also taking into
consideration of his position that he is a semi literate
person only and not known to the legal consequences of
not prosecuting the suit etc., it is decided the petition
should not be dismissed on the mere fact of inordinate
delay. But to compensate inordinate delay caused by the
petitioner/defendant and also for the inconvience and
hardships caused to the respondent/plaintiff it is
decided to allow the petition on some cost will be a
justifiable one. Under the above circumstances it is
decided to allow the petition on cost and with further
condition tha tthe petitioner should be ready to conduct
the trial immediately on framing of issues without
further delay. The point is answerd accordingly.
In the result, the petition is allowed on
payment of cost of Rs.10,000/- to be paid by the
petitioner/defendant to respondent/plaintiff on or before
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
2.4.2018 failing which the petition shall stand
dismissed. Call on 3.4.2018.”
7.On perusal of the order would show that the learned Judge of
the Trial Court has elaborately dealt with all these aspects and thereafter
come to the conclusion that due to the fault on the part of the Lawyer
engaged by the respondent, the exparte order came to be passed.
8.The suit was filed for specific performance, where, the larger
interest in the suit property needs to be decided in the suit by way of
contest, but the suit was dismissed for default. The rights of the parties in
the property cannot be decided by way of passing the exparte decree.
Obvisiouly, in the present case, the default was on the part of the counsel,
who appeared for the respondent. Due to the fault of the Lawyer, the Court
ought not to have decided the dispute by way of passing the exparte decree,
when, the larger interest in the properties is involved. The order under
challenge is an elobrate order and dealt with all these aspects. Thus, I do
not find any fault in the order of the Court below, in such view of the
matter, I propose to dismiss the Civil Revision Petition as there is no
substance in the submissions made by the learned counsel appeared on
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C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
behalf of the petitioner. Hence, the Civil Revision Petition deserves for
dismissal.
9.Accordingly, the Civil Revision Petition is dismissed, by
confirming the order dated23.03.2018 passed in I.A.No.16987 of 2017 in
O.S.No.10839 of 2010 on the file of the learned VII-Additional City Civil
Judge, Chennai. No costs. Consequently, the connected miscellaneous
petition is closed.
19.02.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
klt
To
The VII-Additional City Civil Judge, Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)No.1940 of 2018, dt.19.02.2021
KRISHNAN RAMASAMY, J.
klt
C.R.P (NPD).No.1940 of 2018
and
Cmp.No.11221 of 2018
19.02.2021
https://www.mhc.tn.gov.in/judis/
