Madras High Court
Sivan Pillai vs K.Chellammal on 19 January, 2021
CRP(MD)No.1515 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 06.07.2021
Delivered On : 10.08.2021
CORAM:
THE HONOURABLE MRS. JUSTICE R. THARANI
C.R.P.(NPD)(MD).No.1515 of 2015
and
M.P.(MD).No.2 of 2015
1.Sivan Pillai
2.K.Nallaperumal Pillai
3.K.Kannan ... Petitioners
Vs.
1.K.Chellammal
2.Uma
3.Sivakumari (Died)
4.Ponnu
5.Uma Shankar
6.Lekshmi
7.Santhakumari
8.Nallaperumal Pillai
9.Usha
10.Thanu Pillai
11.Ramachandran
12.Padmam
13.Kannappan
14.Nagammal
15.Sankar
16.Surendran
1/16
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CRP(MD)No.1515 of 2015
17.Sankari
18.Natesh
19.Shanmugam Pillai
20.Jeyasri
21.Uma Shankar
22.Jeyalakshmi ... Respondents
Respondents 19 to 22 are brought on record
as legal heirs of the deceased 3rd respondent
vide Court order dated 19.01.2021 made in
C.M.P.(MD)No.7285 of 2018 in
C.R.P.(MD)No.1515 of 2015 by TKJ
PRAYER: This Civil Revision Petition has been filed under Section 115 of
Civil Procedure Code, to set aside the fair and decreetal order passed in
I.A.No.65 of 2012 in A.S.S.R.No.6645 of 2011 on the file of the Principal
Sub Court, Nagercoil dated 14.11.2014.
For Petitioners : Mr.M.P.Senthil
For Respondents : Mr.D.Nallathambi
1 to 3, 5, 7 to 10, 12, 13 & 15
For Respondent : Withdrawn
4, 6, 11, 14, 17, 18
For 3rd Respondent : Died
ORDER
This petition has been filed to set aside the order in I.A.No.65 of
2012 in A.S.S.R.No.6645 of 2011 dated 14.11.2014, on the file of the
Principal Sub Judge, Nagercoil.
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CRP(MD)No.1515 of 2015
2.The petitioners herein are the petitioners and the respondents
herein are the respondents in the condone delay petition. The revision
petitioners have filed a petition in I.A.No.65 of 2012 to condone the delay of
1409 days in filing the first appeal in A.S.S.R.No.6645 of 2011.
3.Brief substance of the petition in I.A.No.65 of 2012 is as follows:
The father of the revision petitioners is the third defendant in the
suit filed by the respondents. A preliminary decree was passed in the original
suit in O.S.No.518 of 1969. At the time of filing the petition for final decree,
the petitioners' father died. The petitioners are added as additional
defendants. On 22.10.2007, the final decree was passed in the case. The final
decree was against the order of this Court in the second appeal. As the legal
heirs of third defendant, the petitioners are entitled for the first item of the
suit property. The final decree order in I.A.No.10 of 1982 is not proper. The
second petitioner was conducting the case on behalf of the petitioners. The
second petitioner is a heart patient and he voluntarily retired from service in
the year 2007. The second petitioner's wife, Kohila is a chronic patient. She
died on 31.04.2011. Since the second petitioner is taking care of his wife, he
was not able to file the appeal in time. There was a delay of 1409 days in
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CRP(MD)No.1515 of 2015
filing the appeal and prayed the delay to be condoned.
4.Brief substance of the counter in I.A.No.65 of 2012 is as follows:
The case was filed for partition in the year 1966. On 29.04.1972, a
preliminary decree was passed. An appeal in A.S.No.47 of 1973 was filed by
the father of the petitioners. That appeal was dismissed. The second appeal in
S.A.No.2190 of 1994 was filed. The decree of the trial Court was slightly
modified. On 10.10.1981, the plaintiffs have filed a petition for final decree.
The third defendant alone has filed a counter. The Commissioner by name
Kumar, was appointed by the Court. He has filed a Commissioner report
regarding the first and second items of the suit properties. On 07.03.1988, no
objection was filed against the report of the Commissioner. The final decree
petition was adjourned to 06.04.1988. Again the matter was taken up for
orders on 11.04.1988. At that time, the third defendant filed a petition in
I.A.No.622 of 1988. An order was passed on the petition on 21.12.2001. The
third defendant filed an appeal against the order in A.S.No.57 of 2002 and the
petition was remanded back for fresh enquiry.
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CRP(MD)No.1515 of 2015
The third defendant died and the petitioners were impleaded as the
legal heirs of the third defendant. Final decree order was passed. E.P.No.51 of
2012 was filed for executing the decree. Notice was served on the petitioners.
They filed vakalath through their counsel on 14.09.2012. Subsequently, they
filed this petition. The reason for delay is not explained. The second
petitioner is a retired Government servant. Another petitioner is working as
an Officer in the Police Department. Both of them were taking care of the
Court proceedings in this case. Another petitioner is living in Nagercoil,
Ilangudi. Only with a motive to prevent the plaintiffs from enjoying the
properties, the petitioners have come forward with this petition and the
petition is to be dismissed.
5.On the side of the petitioners, one witness was examined and
three documents were marked. On the side of the respondents, one witness
was examined and three documents were marked. The trial Court dismissed
the petition with a cost of Rs.10,000/- (Rupees Ten Thousand only). Against
which, the revision petitioners have filed this Civil Revision Petition.
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CRP(MD)No.1515 of 2015
6.On the side of the revision petitioner, it is stated that the appeal
was filed only due to the error committed by the trial Court. The judgment
rendered is contrary to the directions and the order of remand passed by the
appellate Court. In view of the relationship between the parties, the trial
Court should have condoned the delay. The trial Court has committed a grave
error in imposing a cost of Rs.10,000/- (Rupees Ten Thousand only).
7.On the side of the revision petitioners, it is stated that the third
defendant is entitled to suit item 1 and 2 of the property. The other sharers are
not entitled to any share in the properties mentioned in schedule 1 and 2. The
final decree was passed in I.A.No.10 of 1982 in contradiction to the high
Court direction. In appeal in A.S.No.57 of 2002, the District Judge has
observed that the trial Court has committed an error in passing the final
decree. When no share was allotted to others in item 1 and 2, a final decree
cannot be passed on the preliminary decree. The trial Court did not follow the
directions of the this Court and mechanically passed the final decree again.
The second petitioner was following the case. The second petitioner was
attending his sick wife, who passed away and there was a delay of 1409 days.
In a partition suit, an opportunity should be given to the other side. Without
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CRP(MD)No.1515 of 2015
considering the same, the trial Court has dismissed the petition.
8.On the side of the petitioners, it is stated that the other side can
be compensated by cost for the inconvenience caused to the respondents and
the Court has to consider the extent of the property involved and the stake of
the parties. In support of this contention, a judgment passed by the Hon'ble
Supreme Court in the case of M.K.Prasad v. P.Arumogam reported in 2001
(6) SCC 176 is cited, wherein it is stated as follows:
“Even though the appellant appears not to be as
vigilant as he ought to have been, yet his conduct does
not, on the whole, warrant to castigate him as an
irresponsible litigant. He should have been more vigilant
but on his failure to adopt such extra vigilance should not
have been made a ground for ousting him from the
litigation with respect to the property, concededly to be
valuable. While deciding the application for setting aside
the exparte decree, the Court should have kept in mind the
judgment impugned, the extent of the property involved
and the stake of the parties. We are of the opinion that the
inconvenience cause to the respondent for the delay on
account of the appellant being absent from the Court in
this case can be compensated by awarding appropriate
and exemplary costs.”
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CRP(MD)No.1515 of 2015
9.On the side of the petitioners, it is stated that the trial Court
dismissed the application without sufficient reason and the order is liable to
be set aside. In support of his contention, a judgment passed by this Court in
the case of P.Subramanian and others v. S.Viswasam reported in 2011 (2)
CTC 502 is cited, wherein it is stated as follows:
“Trial Court dismissed applications without
sufficient reasoning – order liable to be set aside”
10.On the side of the petitioners, it is stated that the Court has to
consider whether the delay is inordinate and the inconvenience that may be
caused to the other side. In support of his contention, a judgment passed by
the Hon'ble Supreme Court in the case of Esha Bhattacharjee v. Managing
Committee of Raghunathpur, reported in 2013 (5) CTC 547, is cited.
11.On the side of the petitioners, it is stated that the right of the
parties should be decided on merits and an opportunity for the parties has to
be given. In support of his contention, a judgment passed by this Court in the
case of Ajay Kumar Gulecha v. J.Vijayakumar and others reported in 2015
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CRP(MD)No.1515 of 2015
(1) CTC 811 is cited, wherein it is stated as follows:
“No doubt, delay is huge – right over valuable
property is involved – suit property measures 2.30 acres
with building and is worth several crores – rights of parties
should be decided on merits – law of limitation has not
been enacted for destroying rights of parties- case has to be
decided on merits – interest of justice requires an
opportunity be given to respondent”
12.On the side of the petitioners, it is stated that in a partition suit,
the dismissal of the petition will be a prejudice to the litigant and the petition
has to be allowed, considering the extraordinary hardship that may be caused
to the petitioner. In support of his contention, a judgment passed by this
Court in the case of Rajangam and others v. Senthamaraj and others
reported in 2016 (2) CTC 714, wherein it is stated as follows:
“Held, in partition suit, possibility of negotiation
between parties not uncommon- Moreover, status of D8 as
wife at stake and decision in suit would be constructive res
judicata and D8 would be greatly prejudiced in any other
litigation – Considering extraordinary hardship to be
caused to D8, application for setting aside exparte decree,
held, bound to be allowed – application allowed – costs of
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CRP(MD)No.1515 of 2015
Rs.25,000 to be paid by revision petitioner to plaintiffs”
13.On the side of the revision petitioners, it is stated that though
the petition will permit the party to participate in the main proceedings, the
merits of the matter cannot be thrown out on account of technical issues. In
support of his contention, a judgment of this Court in the case of Sarasu v.
Ravi reported in 2016 (5) CTC 117, wherein it is stated that:
“Even though the reasons assigned by the petitioner
are convincing considering the huge delay and keeping in
mind the above said legal position, this Court is of the view
that if the delay is compensated by way of costs nothing will
be prejudiced to the other side.”
14.On the side of the respondents, it is stated that a delay excuse
petition should not be allowed in a mechanical manner. The original suit was
filed in the year 1969 for partitioning 53/336 share in the suit property. The
preliminary decree was passed in 11.10.1970. The appeal in A.S.No.47 of
1973 was filed before the Additional Sub Court, Nagercoil and the same was
dismissed. Against which, a second appeal in S.A.No.2190 of 1974 was filed
and the second appeal was dismissed confirming the judgment passed by the
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CRP(MD)No.1515 of 2015
trial Court on 20.06.1977. Thereafter, a final decree proceedings in I.A.No.10
of 1982 was filed and a final decree was passed on 21.11.2001. The appeal
against the final decree was filed in A.S.No.57 of 2002 before the Principal
District Court, Nagercoil and the learned Principal District Judge, Nagercoil
remanded back the matter on 03.09.2004.
Again the final decree was ordered on 22.10.2007. The revision
petitioners tried to file an appeal in A.S.(S.R)No.6645 of 2011 with a delay of
1409 days. The appeal was filed without a certificate copy of the judgment
and decree. The appeal was returned by the Court on 10.10.2011 for copy of
the judgment and decree and for affixing advocate welfare and clerk welfare
stamps. The case was restored several times in a causal manner. The delay
excuse petition in I.A.No.65 of 2012 was rightly dismissed by the Principal
District Court.
15.The averments in the delay excuse petition is that the petitioners
were not residing in the town. But the petitioners were often going to the
native place and they are well aware of the proceedings. The second
petitioner was said to have taken care of his wife but there was delay even
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CRP(MD)No.1515 of 2015
after the death of his wife. No document was filed to show the illness of the
wife of the second wife. The nature of the illness, mode of treatment and
period of treatment were not stated. In the evidence of P.W.1, it was stated
that till 2010, his brother was working in Nagercoil.
16.It is stated that only after receiving the notice in the execution
proceedings, the petitioners have re-presented his appeal memorandum. But
the petitioners have not rectified the defeats such as payment of additional
Court fee. This will clearly show that there is latch on the part of the
petitioners from 30.09.2011 till 10.09.2012. The delay excuse petition in the
appeal suit was filed under Section 96 of CPC and under Order 41 Rule 3(A)
of CPC not under Section 5 of Limitation Act. The only reason is stated that
the third petitioner was entrusted with the duty of conducting the case. The
third petitioner is a Police Officer and he used to attend the Court regularly in
his official duty.
17.The delay has to be seriously viewed, if the affidavit lacks
bonafide. In support of his contention, a judgment of this Court in the case of
Sundar Gnanaolivu v. Rajendran Gnanaolivu reported in 2003-1-L.W. 585
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CRP(MD)No.1515 of 2015
is cited.
18.On the side of the respondents, it is stated that no presumption
can be attached to deliberate delay and the Court should be vigilant not to
expose the other side to face litigation. In support of his contention, a
judgment in Esha Bhattacharjee v. Managing Committee of Raghunathpur
case reported in 2013 (5) CTC 547 is cited.
19.On the side of the respondents, it is stated that the Court has to
see the conduct behavior and attitude of the parties relating to inaction or
negligence. Proper explanation has to be given for each and every day delay.
In support of his contention, a judgment passed in State of Tamil Nadu and
others v. Melvisharam and others reported in 2018 (3) CTC 420 is cited.
20.A perusal of the records reveals that the case was pending from
the year 1969 onwards. P.W.1 has deposed that one of the petitioner is
working as a police official and he was working in Nagercoil till 2010.
Another petitioner was attending the Court from 2000 till 2010. His evidence
clearly reveals that he is aware that he has to take steps to note the Court
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CRP(MD)No.1515 of 2015
proceedings now and then and they have not contacted their advocates even
through cell phone. His deposition clearly reveals that there is no reasonable
cause for the delay and all the brothers are attending the Court. From Ex.P1,
it is clear that the wife of the petitioner was 'inpatient' only for 15 days in the
year 2011 but the final decree was passed in the year 2007. There is no
explanation for the delay from 2007 till 2011. The contention of the
respondents is that the appeal was filed without copies of the lower Court
judgment and decree and without affixing welfare stamps and the appeal was
returned for various reasons. From 30.09.2011 till 10.09.2012, the report
reveals that the petitioners are not bonafide and the motive for the petitioners
is to drag on the case.
21.The suit is pending from the years 1969 onwards. The plaintiffs
are not able to enjoy the fruits of the judgment and decree so far. Only with
the motive to delay the proceedings, the petitioners have filed this petition.
The delay of 1409 days was not explained by the petitioners and the reasons
stated by the petitioners in the petition are not satisfactory. The evidence of
P.W.1 clearly reveals that the other petitioners also are attending the Court
and conducting the case. The wife of the second petitioner was ill only for 15
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days. There is no evidence that she was continuously ill from the year 2007
till 2011.
22.In the above circumstances, the delay seems to be deliberate and
with a motive to drag on the case. There is nothing sufficient enough to
interfere in the order in I.A.No.65 of 2012 in A.S.S.R.No.6645 of 2011 dated
14.11.2014, on the file of the learned Sub Judge, Nagercoil. Accordingly, this
Civil Revision Petition is dismissed. No Costs. Consequently, connected
miscellaneous petition is closed. One month time from the date of receipt of
copy of this order is granted for payment of cost imposed by the first
Appellate Court.
. .2021
Index :Yes/No
Internet :Yes/No
MRN
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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CRP(MD)No.1515 of 2015
R. THARANI, J.
Mrn
To
1.The Principal Subordinate Judge,
Nagercoil.
C.R.P.(NPD)(MD).No.1515 of 2015
10.08.2021
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