Madras High Court
Mari Naicker vs Elumali Naicker on 13 July, 2021
S.A.Nos.521 to 523 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.Nos.521 to 523 of 2008
and
C.M.P.Nos.8416 to 8421
and 8429 to 8431 of 2021
S.A.No.521 of 2008:
Mari Naicker ...Plaintiff/Appellant/Appellant
Vs.
1.Elumali Naicker
2.Kesavan
3.Jaisankar ...Defendants/Respondents/Respondents
C.M.P.Nos.8429 to 8431 of 2021:
1.Mari Naicker (deceased) ...Appellant
2.Sekar
3.Ramesh ...Petitioners/Proposed Appellants 2 & 3
Vs.
1.Elumali Naicker
2.Kesavan
3.Jaisankar ...Respondents/Respondents
1/22
https://www.mhc.tn.gov.in/judis/
S.A.Nos.521 to 523 of 2008
S.A.No.522 of 2008:
Chockkalingam Naicker ...Plaintiff/Appellant/Appellant
Vs.
1.Elumali Naicker
2.Kesavan
3.Jaisankar ...Defendants/Respondents/Respondents
C.M.P.Nos.8417, 8418 and 8421 of 2021:
1.Chockkalingam Naicker (deceased) ... Appellant
2.Shankar
3.Pandurangan
4.Kumari @ Gowri
5.Shanthi
6.Devaki ...Petitioners/Proposed Appellants 2 to 6
Vs.
1.Elumali Naicker
2.Kesavan
3.Jaisankar ...Respondents/Respondents
S.A.No.523 of 2008:
Kanniammal ...Plaintiff/Appellant/Appellant
Vs.
1.Elumali Naicker
2.Kesavan
3.Jaisankar ...Defendants/Respondents/Respondents
2/22
https://www.mhc.tn.gov.in/judis/
S.A.Nos.521 to 523 of 2008
Prayer in C.M.P.No.8429 of 2021 in S.A.No.521 of 2008:
Petition filed under Section 5 of the Limitation Act, 1960 to
condone the delay of 1463 days in filing the petition to set aside the
abatement caused due to the death of the sole appellant in S.A.No.521
of 2008.
Prayer in C.M.P.No.8430 of 2021 in S.A.No.521 of 2008:
Petition filed under Order 22 Rule 9 of the Code of Civil
Procedure read with 151 of the Code of Civil Procedure to set aside the
abatement caused due to the death of the sole appellant in S.A.No.521
of 2008.
Prayer in C.M.P.No.8431 of 2021 in S.A.No.521 of 2008:
Petition filed under Order 22 Rule 3 of the Code of Civil
Procedure read with 151 of the Code of Civil Procedure to bring on
record the petitioners/proposed appellants 2 an 3 as legal
representatives of the deceased sole appellant and rank him as appellant
Nos.2 and 3 in S.A.No.521 of 2008.
Prayer in S.A.No.521 of 2008: Second Appeal filed under Section 100
of the Code of Civil Procedure against the Judgment and Decree dated
21.08.2007 on the file of the learned Principal Sub Judge, Chengalpattu
3/22
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S.A.Nos.521 to 523 of 2008
in A.S.No.54 of 2006 by dismissing the First Appeal and confirming
the Judgment and Decree dated 12.04.2006 of the learned District
Munsif -cum- Judicial Magistrate, Thirukazhukundram in O.S.No.10 of
2000.
Prayer in C.M.P.No.8421 of 2021 in S.A.No.522 of 2008:
Petition filed under Section 5 of the Limitation Act, 1960 to
condone the delay of 3083 days in filing the petition to set aside the
abatement caused due to the death of the sole appellant in S.A.No.522
of 2008.
Prayer in C.M.P.No.8417 of 2021 in S.A.No.522 of 2008:
Petition filed under Order 22 Rule 9 of the Code of Civil
Procedure read with 151 of the Code of Civil Procedure to set aside the
abatement caused due to the death of the sole appellant in S.A.No.522
of 2008.
Prayer in C.M.P.No.8418 of 2021 in S.A.No.522 of 2008::
Petition filed under Order 22 Rule 3 of the Code of Civil
Procedure read with 151 of the Code of Civil Procedure to bring on
record the petitioners/proposed appellants 2 to 6 as legal
representatives of the deceased sole appellant and rank him as appellant
Nos.2 to 6 in S.A.No.522 of 2008.
4/22
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S.A.Nos.521 to 523 of 2008
Prayer in S.A.No.522 of 2008: Second Appeal filed under Section 100
of the Code of Civil Procedure against the Judgment and Decree dated
21.08.2007 on the file of the learned Principal Sub Judge, Chengalpattu
in A.S.No.55 of 2006 by dismissing the First Appeal and confirming
the Judgment and Decree dated 12.04.2006 of the learned District
Munsif -cum- Judicial Magistrate, Thirukazhukundram in O.S.No.63 of
2000.
Prayer in C.M.P.No.8416 of 2021 in S.A.No.523 of 2008:
Petition filed under Section 5 of the Limitation Act, 1960 to
condone the delay of 3537 days in filing the petition to set aside the
abatement caused due to the death of the sole appellant in S.A.No.523
of 2008.
Prayer in C.M.P.No.8419 of 2021 in S.A.No.523 of 2008:
Petition filed under Order 22 Rule 9 of the Code of Civil
Procedure read with 151 of the Code of Civil Procedure to set aside the
abatement caused due to the death of the sole appellant in S.A.No.523
of 2008.
Prayer in C.M.P.No.8420 of 2021 in S.A.No.523 of 2008:
Petition filed under Order 22 Rule 3 of the Code of Civil
Procedure read with 151 of the Code of Civil Procedure to bring on
5/22
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S.A.Nos.521 to 523 of 2008
record the petitioners/proposed appellants 2 to 6 as legal
representatives of the deceased sole appellant and rank him as appellant
Nos.2 to 6 in S.A.No.523 of 2008.
Prayer in S.A.No.523 of 2008: Second Appeal filed under Section 100
of the Code of Civil Procedure against the Judgment and Decree dated
21.08.2007 on the file of the learned Principal Sub Judge, Chengalpattu
in A.S.No.64 of 2006 by dismissing the First Appeal and confirming
the Judgment and Decree dated 12.04.2006 of the learned District
Munsif -cum- Judicial Magistrate, Thirukazhukundram in O.S.No.64 of
2000.
For Appellants : Mr.V.Raghupathi
in all appeals
For Respondents : Ms.C.R. Rukmani
for R1 and R3 in S.A.No.521 of 2008
R2 – Died in S.A.No.521 of 2008
COMMON JUDGMENT
These petitions are filed to condone the delay in filing the appeals
to set aside the abatement caused due to the death of the appellants in
the respective Second Appeals.
6/22
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S.A.Nos.521 to 523 of 2008
2.S.A.No.521 of 2008 arises against the Judgment and Decree in
A.S.No.54 of 2006 on the file of the learned Principal Sub Judge,
Chengalpattu confirming the Judgment and Decree in O.S.No.10 of
2000 on the file of the learned District Munsif -cum- Judicial
Magistrate, Thirukazhukundram.
3.The appellant was the plaintiff in the above suit and the suit
was filed for a declaration that he is the absolute owner of the suit
property and for permanent injunction restraining the defendants, their
men, agents, or servants from in any way interfering with the plaintiff's
peaceful possession and enjoyment of the suit properties
4.S.A.No.522 of 2008 is filed challenging the Judgment and
Decree in A.S.No.55 of 2006 on the file of the learned Principal Sub
Judge, Chengalpattu confirming the Judgment and Decree of the
learned District Munsif -cum- Judicial Magistrate, Thirukazhukundram
in O.S.No.63 of 2000.
7/22
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S.A.Nos.521 to 523 of 2008
5.The appellant is the plaintiff therein and the plaintiff has sought
for a bare injunction restraining the defendants, their men, agents, or
servants from in any way interfering with the plaintiff's peaceful
possession and enjoyment of the suit properties.
6.S.A.No.523 of 2008 is filed challenging the Judgment and
Decree in A.S.No.64 of 2006 on the file of the learned Principal Sub
Judge, Chengalpattu in and by which the learned Judge confirmed the
Judgment and the Decree of the learned District Munsif -cum- Judicial
Magistrate, Thirukazhukundram in O.S.No.64 of 2000.
7.The appellant is the plaintiff in the said suit and the suit has
been filed for a permanent injunction restraining the defendants, their
men, agents, or servants from in any way interfering with the plaintiff's
peaceful possession and enjoyment of the suit properties.
8/22
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S.A.Nos.521 to 523 of 2008
8.Pending the appeal, the appellants had passed away and the
tabular statement hereinbelow provides the date of death and the
number of days delay in filing the applications to set aside the
abatement:
------------------------------------------------------------------------------------
Second Appeal C.M.P.No. Date of death Number of
Number days delay
------------------------------------------------------------------------------------
(1)S.A.No.521/2008 8429 of 2021 15.10.2015 1463
(2)S.A.No.522/2008 8421 of 2021 09.05.2011 3083
(3)S.A.No.523/2008 8416 of 2021 09.02.2010 3537
-----------------------------------------------------------------------------------
9.In the affidavit filed in support of the above petitions, identical
reasons have been provided for.
10.In C.M.P.No.8429 of 2021 in S.A.No.521 of 2008, the
defendants would state in Paragraph 5 as follows:
“5.I submit that my father did not inform the
pendency of the Second Appeal to me and my brother. On
23.04.2021, my father's friend one Sundaramurthy
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S.A.Nos.521 to 523 of 2008
informed that my father's counsel contacted him, through
his junior advocate and informed the above pending
Second Appeal immediately. I contacted my present
counsel along with my father's friend Sundaramurthy and
informed my father death and also given particulars
relate to legal heirs. Hence, the present petitions are
filed. There is a delay of 1463 days in filing petitions to
set aside the abatement along with legal heirs petition.
Unless the said petitioners not allowed I will lose my case
and I will be thrown out from the schedule premises.”
11.Likewise, in C.M.P.No. 8421 of 2021 in S.A.No.522 of 2008,
the defendants would state in Paragraph 5 as follows:
“5.I submit that my father did not inform the
pendency of the Second Appeal to me and my brother. On
23.04.2021, my father's friend one Sundaramurthy
informed that my father's counsel contacted him, through
his junior advocate and informed the above pending
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S.A.Nos.521 to 523 of 2008
Second Appeal immediately. I contacted my present
counsel along with my father's friend Sundaramurthy and
informed my father death and also given particulars
relate to legal heirs. Hence, the present petitions are
filed. There is a delay of 3083 days in filing petitions to
set aside the abatement along with legal heirs petition.
Unless the said petitioners not allowed I will lose my case
and I will be thrown out from the schedule premises.”
12.Likewise, in C.M.P.No. 8416 of 2021 in S.A.No.523 of 2008,
the defendants would state in Paragraph 5 as follows:
“5.I submit that my father did not inform the
pendency of the Second Appeal to me and my brother. On
23.04.2021, my father's friend one Sundaramurthy
informed that my father's counsel contacted him, through
his junior advocate and informed the above pending
Second Appeal immediately. I contacted my present
counsel along with my father's friend Sundaramurthy and
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S.A.Nos.521 to 523 of 2008
informed my father death and also given particulars
relate to legal heirs. Hence, the present petitions are
filed. There is a delay of 3537 days in filing petitions to
set aside the abatement along with legal heirs petition.
Unless the said petitioners not allowed I will lose my case
and I will be thrown out from the schedule premises.”
Therefore, from the above statements, it is clear that it is one
Sundaramurthy who has been the point of contact in these proceedings.
13.The respondents have filed a counter resisting the said
petitions stating that the same is nothing but an abuse of process of
Court and that the deponents have come forward with the false case.
In the counter to C.M.P.No.8429 of 2021, the respondents would
contend that the 1st respondent had died as early as on 14.01.2009 and
the appellants who are the residents of the same Village who are aware
of his death have not taken steps to bring on record the legal
representatives of the deceased 1st respondent. Thereafter, the 2nd
defendant Kesavan died on 14.11.2017. Steps had not been taken to
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S.A.Nos.521 to 523 of 2008
bring on record the legal representatives of the deceased. The
respondent has further stated that the wife of Mari Naicker, the
deceased appellant is very much alive and a false affidavit has been
filed stating that she is no more. It is their contention that
Sundaramurthy is conducting the case. The learned counsel would
submit that this appeal has been listed on three occasions earlier and a
Memo had been filed informing about the same despite which no steps
have been taken to implead the legal representatives of the deceased
respondents 1 and 2.
14.The respondents would further submit that there are
proceedings pending before the Revenue Authorities between the
appellants and the respondents and the parties are fully aware about the
pendency of the Second Appeal. That apart, the appellant has sold the
property to the said Sundaramurthy. The respondent has also stated
that Sundaramurthy appears to be involved in cases of land grabbing
and there are suits and Writ Petitions pending against him. The said
Sundaramurthy is running several businesses which includes quarrying,
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S.A.Nos.521 to 523 of 2008
sale of liquor, etc., This sale is totally in violation of the orders of this
Court in W.P.No.7246 of 2001 wherein parties were directed to
maintain Status-Quo.
15.In the counter in C.M.P.No.8421 of 2021 in S.A.No.522 of
2008, the respondents would reiterate the death of the respondents 1
and 2 and the fact that they have not brought on record the respective
legal representatives. That apart, the respondents would further submit
the fact that the petitioners are not shown in their order of seniority in
age which would itself show that the petitions have not been prepared
by the said petitioners. This suspicion is further fortified when on
enquiry with the petitioners they have stated that they have absolutely
no knowledge about the filing of the petition. Even in the instant case,
the properties had been sold to the said Sundaramurthy. The parties are
very much aware about the pendency of these proceedings since the
enquiry is pending before the Revenue Authorities between the parties.
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S.A.Nos.521 to 523 of 2008
16.In C.M.P.No.8416 of 2021 in S.A.No.523 of 2008, the
respondents apart from contending that the legal representatives of the
1st and 2nd respondents had not been brought on record and would also
submit that the affidavit does not show the correct address of the legal
representatives of the deceased persons as well as their age.
17.That apart, the Door Number and Street Number have not
been mentioned and the respondents had enquired with the legal
representatives as to whether they had filed any petition, they had
answered in the negative. This property has also been sold to the said
Sundaramurthy in violation of the orders of this Court in W.P.No.7246
of 2001. Therefore, she would contend that the respondents seek to
have the application be dismissed.
18.Mr.Raghupathi, learned counsel making his submissions on
behalf of the appellant would reiterate the contents of the affidavit filed
in support of the applications, and stated that the Court should liberal in
condoning the delay. He would rely upon the following Judgments of
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S.A.Nos.521 to 523 of 2008
this Court as follows:
(1)Subramani and others v. Ramasamy and another
[CDJ 2007 MHC 1207] (Paragraphs 10 and 11)
(2)Ram Nath Sao @ Ram Nath Sahu and others v.
Gobardhan Sao and others [CDJ 2002 SC 190]
(Paragraphs 9,10 and 12)
(3)Orders in C.R.P.(NPD) No.3476 of 2012 dated
03.08.2020 in the case of Santha (died) and others v.
Ashwapathi (died) and others.
19.Ms.C.R. Rukmani, learned counsel would reiterate the
contentions pleaded in the counter and would submit that the legal
representatives of the appellants have no interest in the property as the
same has been sold and it is only Sundaramurthy who shadow fighting
as he has purchased these properties subject matter of the litigation.
The Sale itself is contrary to the orders of this Court in W.P.No.7642 of
2001. She would submit that a false affidavit has been filed stating that
the wife of the appellant in S.A.No.521 of 2008 is no more when she
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S.A.Nos.521 to 523 of 2008
was very much alive. She would therefore submit that the condonation
of the delay is not automatic but should be only on the sufficient cause
to be shown and the conduct of the petitioner who approaches the
Court for condoning the delay has to be blemishless.
20.Heard the learned counsels appearing on either side and
perused the papers.
21.From the records filed by the respondents, it is seen that by
order dated 10.08.2001 in W.M.P.Nos.10867 and 19758 of 2001 in
W.P.No.7642 of 2001 which was the Writ Petition filed by the
deceased 1st respondent herein against the Revenue Department of the
State as well as the appellants in these Second Appeals, this Court has
passed an interim order stating that the parties should maintain Staus-
Quo and shall not take advantage of the Interim Stay for claiming
injunction or any right before the Civil Court. This interim order has
been confirmed when the Writ Petition itself has been disposed of by
order of this Court on 14.11.2011, wherein this Court has been pleased
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S.A.Nos.521 to 523 of 2008
to pass the following orders:
“7.In the result, the Writ Petition is allowed
and impugned order is set aside and the matter is
remanded to the first respondent for fresh
consideration. The first respondent shall issue notice
to the petitioner and all other persons interested,
conduct an enquiry after calling for all the relevant
records from the respondents 2 to 4 and after
affording an opportunity of personal hearing to the
petitioner and the respondents 5 to 23 and any other
persons who may be interested in the property, that
several sale transactions have taken place in the
interregnum. Until the first respondent considers the
matter afresh as directed above, the status quo as
regards the entries in the Revenue records, pursuant
to the impugned order shall be maintained and shall
abide by the fresh orders to be passed by the first
respondent. No costs. Consequently, connected
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S.A.Nos.521 to 523 of 2008
Miscellaneous Petition is closed.”
22.Another factor which would show that the deceased appellants
had not approached this Court with clean hands is evidenced from the
records that the appellant in S.A.No.523 of 2008 has sold the property
to Sundaramurthy under a registered Sale Deed dated 19.07.2004, after
the Interim Stay had been granted by this Court. The appellant Mari
Naicker in S.A.No.521 of 2008 along with his son Ramesh, one of the
petitioners herein had sold the property to the said Sundaramurthy
under a registered Sale Deed dated 13.12.2007. Both the sales have
taken place even before the filing of the Second Appeal. In fact,
Kanniammal, the appellant in S.A.No.523 of 2008 has sold her
property pending the suit. Mari Naicker and his son have sold the
property after the Decree in the Appeal Suit. The appellant in
S.A.No.522 of 2008 has sold the property to the said Subdaramurthy
under a Sale Deed dated 16.04.2013 during the pendency of the Second
Appeal. All these Sale Deeds would recite that the property is being
sold free of any encumbrance and there is no claim in respect of the
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S.A.Nos.521 to 523 of 2008
property. This statement is totally false to the knowledge of both the
vendors and the purchasers. This clearly demonstrates the fact that the
appellants intent on keeping the litigations simmering. Sale Deeds
have been executed in violation of orders of this Court. The reasons
given for the delay is identical and does not contain sufficient reasons,
especially, since the parties are litigating before the Revenue
Authorities are fully aware about the pendency of the Appeal Suit.
23.The condonation of delay is not automatic. No doubt,
sufficient cause requires a liberal consideration but however the same
should not be to the detriment of the other parties and that too when the
persons seeking condonation has come to Court with the unclean hands
and their conduct is suspect. The facts would clearly show that the
appellants no longer have an interest in the subject matter of these
proceedings and it is the said Sundaramurthy who wants to keep the
appeal alive since he has purchased the property in violation of the
orders of this Court.
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S.A.Nos.521 to 523 of 2008
24.In the result, C.M.P.Nos.8416 to 8421 and 8429 to 8431 of
2021 are dismissed. Consequently, the connected Petitions are also
dismissed.
Since C.M.P.Nos.8416 to 8421 and 8429 to 8431 of 2021 are
dismissed the Second Appeals stand dismissed as abated. No costs.
13.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Principal Sub Judge,
Chengalpattu.
2.The District Munsif -cum- Judicial Magistrate,
Thirukazhukundram.
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S.A.Nos.521 to 523 of 2008
P.T. ASHA, J,
mps
S.A.Nos.521 to 523 of 2008
and C.M.P.No.8416 to 8421
and 8429 to 8431 of 2021
13.07.2021
https://www.mhc.tn.gov.in/judis/
