Madras High Court
S.Thyagapari vs A/M.Kayarohanaswamy ... on 11 January, 2021
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
C.M.P.No.12436 of 2019
1.S.Thyagapari
2.S.Krishnaveni .. Petitioners in both petitions
vs.
1.A/M.Kayarohanaswamy Neelayathatchi
Amman, temple, Nagapattinam rep.by
its Executive Officer, having his office in
Neela Sannathi Street,
Nagapattinam Town and Munsif.
2.A.Durai @ Manavazhagan
3.Duraisingam
4.K.Jadatharan
5.K.Deiventhran
6.M.Rajeswari
7.V.Ramachandran
8.A.Santhi
1/12
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
9.K.T.Arasu
10.Jakulin Anbumani
11.Vijaya
12.K.Subbaiya
13.R.Kumar
14.A.Kannan
15.T.Vairavanathan
16.R.Balaji
17.K.Nedumaran
18.A1.Alamelu
19.Latha @ Suthanthiraselvi
20.C.Anitha
21.Kanmani
22.R.Vanitha
23.T.Thangakathiravan
24.S.Sivasankar
25.R.Sowmiya
26.T.Rajeswari
27.K.Srinivasan
2/12
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
28.P.Kalaiselvi .. Respondents in both petitions
PRAYER IN C.M.A.No.3151 of 2019 : Civil Miscellaneous Appeal is
filed under Order XLIII Rule 1(d) of Civil Procedure Code, to set aside the
Fair and Decreetal Order passed in I.A.No.73 of 2018 in O.S.No.24 of 2010
passed by the learned District Judge, Nagapattinam dated 26.03.2019 and
allow the Civil Miscellaneous Appeal.
PRAYER IN C.R.P.No.1895 of 2019 : Civil Revision Petition is filed
under Section 115 of C.P.C, to set aside the fair and decreetal order passed
in I.A.No.92 of 2017 in O.S.No.24 of 2010 passed by the learned District
Judge, Nagapattinam dated 26.03.2019 and allow the Civil Revision
Petition.
For Petitioner : Mr.A.Navaneethakrishnan,
Senior counsel
for M/s.I.David Singh
For Respondents : Mr.M.S.Palaniswamy for R1
No-appearance for RR 2 to 5,7,10,15,
16, 18, 20 to 23, 24, 25 & 28
Not ready in notice-RR6, 8, 9,
11 to 14, 17, 19 & 26, 27
COMMONORDER
The Civil Miscellaneous Appeal on hand is filed against the Fair and
Decreetal Order dated 26.03.2019 passed in I.A.No.73 of 2018 in O.S.No.24
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
of 2010.
2. The Civil Revision Petition is filed challenging the fair and
Decreetal Order dated 26.03.2019 passed in I.A.No.92 of 2017 in O.S.No.24
of 2010.
3. The First respondent/A/M.Kayarohanaswamy Neelayathatchi
Amman Temple, Nagapattinam represented by its Executive Officer is the
plaintiff in the suit and the suit was instituted to declare that the registered
documents are null and void and deliver the possession to the temple. The
suit was adjudicated elaborately by the learned District Judge,
Nagapattinam. The petitioners in the present petitions are the defendants 2
and 3 in the original suit. Nearly about 29 defendants are impleaded as the
parties in the suit, as the plaintiff contended that the defendants are illegally
possessing the suit property and so many documents were also created
against the temple property. Thus, the Executive Officer of the suit property
was constrained to file the suit for declaration and deliver the possession.
Notice was served to all the respondents including the petitioners who are
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
the defendants 2 and 3 in the original suit. The suit was adjudicated on
merits and the other defendants had participated in the process of trial and
the suit was decreed in favour of the plaintiff.
4. The learned Senior Counsel appearing on behalf of the petitioners
mainly contended that the petitioners/defendants 2 and 3 had not filed
written statement and they were set ex-parte. Therefore, an opportunity is to
be provided to the petitioners to contest the case by filing written statement
and to elicit evidence. The Interlocutory Application in I.A.No.92/2017 was
filed to condone the delay of 27 days in filing the petition to set aside the
ex-parte decree dated 26.04.2017 and another application in I.A.No.73/2018
was filed to set aside the ex-parte decree dated 26.04.2017 by the
petitioners/defendants 2 and 3. Both applications were heard together by the
learned District Judge, Nagapattinam and the orders were passed.
5. The learned Senior Counsel appearing on behalf of the petitioners
mainly contended that the delay of 27 days in filing the petition to set aside
the ex-parte decree as a condonable delay. Therefore, the trial Court ought
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
to have allowed the same as the delay is not enormous. The learned Senior
Counsel is of the opinion that the properties are not belonging to the
plaintiff's temple and the petitioners/defendants 2 and 3 are having a fair
case of success. Therefore, they must be provided with an opportunity to
contest the case by filing the document and adducing evidence before the
trial Court. The reasons stated for not contesting the case by the petitioners
are that they shifted to Chennai for carrying out their business. Therefore,
they could not be available at Thiruvarur. The mother of the petitioners is
also aged and was not having adequate knowledge about the legal
proceedings and they could not able to follow up the developments made in
the suit. Therefore, they had not contested the case. Thus, the present appeal
is filed in order to get an opportunity to contest the case before the trial
Court.
6. The learned counsel appearing on behalf of the first respondent
objected the contention by stating that the defendants are the encroachers,
more specifically, the petitioners are sold the properties in favour of the
third parties. It is contended that the entire suit property belongs to the
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
temple and stands in the name of deity. Thus, the transactions are null and
void and all the defendants are illegally possessing the temple properties.
The trial Court adjudicated the issues on merits with reference to the
documents and evidence available and several opportunities were provided
to the petitioners. It is further contended that on behalf of the petitioners,
one learned Advocate has got into the box and gave evidence. All such
illegalities or irregularities were committed, in order to grab the temple
properties. The learned counsel for the first respondent reiterated that when
the petitioners were set ex-parte on 22.03.2011, the application to set aside
the ex-parte decree was not pursued and the judgment and decree in
O.S.No.24/2010 was delivered on 26.04.2017 after a lapse of six years.
Thus, the conduct of the petitioners is self-evident. After the dismissal of
the suit, in order to prolong and protract the issue, the applications are filed
to condone the delay and set aside the ex-parte decree.
7. It is pertinent to note that the petitioners were set ex-parte on
22.03.2011 and the decree was passed in the year 2017. Thus, the reasons
stated by the trial Court in this regard are to be considered. Paragraph No.7
of the judgment of the trial Court is extracted hereunder:
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
“The petitioners admit in their affidavit that they have
been kept quiet as they have been given legal advice
that there was nothing survives against these
petitioners. The petitioners are the vendors and the
respondents 2 to 28 are the purchasers of the temple
properties illegally. Since the petitioners have sold the
suit properties to the other respondents 2 to 28, they
have wilfully failed to participate in the suit. Now as
rightly argued by the learned counsel for the 1 st
respondent at the instance and instigation of the
respondents 2 to 28 who suffered a decree on merits
the present petition has been filed with a view to delay
the execution of the decree and nothing else. The
provisions of Under Section 5 of Limitation Act and
Order 9 Rule 13 of C.P.C should not be allowed to be
invoked by unscrupulous persons like these petitioners.
If really the petitioners had any interest in pursuing the
suit they ought to have taken steps before passing of
the decree on merits by this Court. Most of the
respondents are practising advocates at Nagapattinam.
By flouting the directions of the Honourable High Court
the petitioners have deceitfully grabbed away the
temple properties and sold it to the respondents 2 to
28, without the knowledge of the 1st respondent temple.
The Honourable High Court has directed as per its order
in C.R.P.No.408/1983 to sell the suit properties in a
open tender to be called for by the District Judge,
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
Nagapattinam. The petitioners in connivance with some
advocates of this town have suppressed the directions
of the Honourable High Court and obtained permission
for exchange of the temple properties for the
petitioners' other properties. The said permission
granted by this Court dated 31.10.2000 has been
challenged and on merits, it has been declared as the
said order of this Court is null and void. Even now the
petitioners have no interest in pursuing the matter
further. If really the petitioners have any interest over
this matter they would have entered into the box and
they will not simply asked their counsel to stand and
depose on their behalf. If this trend of examining the
advocate who is appearing for the parties are allowed,
then the ends of justice will be defeated as it causes
serious prejudice to the other side. The 1st respondent
temple, who obtained a decree after a serious contest
against respondents 2 to 28, deprived of its right of
cross-examination of the petitioners. Therefore,
absolutely there is no merits in this petition and the
same is liable to be dismissed.
8. Perusal of the decree dated 26.04.2017 reveals that the most of the
defendants filed their written statements and all the brief averments made in
the affidavit are extracted in O.S.No.24 of 2010. Eight issues were framed
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
and all the issues were independently considered and discussed by the trial
Court in its judgment. In view of the fact that the judgment and decree
passed in the suit is a considered decree and now the petition to set aside the
ex-parte decree is dismissed, this Court is of the considered opinion that the
present case cannot be treated as a routine case where the courts can take a
lenient view in the matter of restoration of the suit which was dismissed on
default or the order of the set aside is passed. In normal circumstances,
restoration of the suit which was dismissed on default or to set aside the ex-
parte decree will be done by taking a liberal view. However, in certain
exceptional circumstances, where those facts are established regarding the
motive of the parties to prolong and protract the issues, then the Courts
cannot come into rescue of those litigants for the purpose of prolonging the
suit itself. Parties are expected to be vigilant and genuine in contesting the
litigation. If they made an attempt to work out their remedy in such a
manner by prolonging the issues, the Courts cannot assist or come into
rescue of those litigants. In the present case, the petitioners were set ex-
parte in the year 2011 itself and the suit was decreed in the year 2017. For
six years, the petitioners were waiting to contest the suit by filing the
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C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
written statement. This apart, the suit was decreed on merits. All other
defendants filed their written statement and the trial Court considered all
these things and decreed the suit in favour of the plaintiff. Under these
circumstances, the trial Court arrived a conclusion that the application to set
aside the ex-parte is filed with some motive and therefore, there is no reason
to consider the petition for the purpose of setting aside the ex-parte order
and accordingly, dismissed the petition. The reason furnished for rejection
of the petition by the trial Court is based on sound legal principles and there
is no infirmity as such. Accordingly, the Fair and Decreetal Order dated
26.03.2019 in I.A.No.92 of 2017 in O.S.No.24 of 2010 and I.A.No.73 of
2018 in O.S.No.24 of 2010 stand confirmed and consequently
C.M.A.No.3151 of 2019 and C.R.P.No.1895 of 2019 stand dismissed. No
costs. Consequently, connected miscellaneous petition is also closed.
11.01.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
ssb
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
S.M.SUBRAMANIAM, J.
ssb
To
The District Judge, Nagapattinam.
C.M.A.No.3151 of 2019 & C.R.P.No.1895 of 2019
11.01.2021
https://www.mhc.tn.gov.in/judis/
