Madras High Court

Anthoni Ammal vs Kitheri Ammal on 8 March, 2021

                                                                                 C.R.P.No.1392 of 2019

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated : 08.03.2021

                                                          CORAM

                                   THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                               C.R.P.No.1392 of 2019 and
                                                 C.M.P.No.9141 of 2019

                     1. Anthoni Ammal
                     2. Arokiasamy @ Arokiya Doss @ Palayam                      ... Petitioners


                                                               Vs.
                     1. Kitheri Ammal
                     2. Vijayakulamerry @ Egalamerry
                     3. The President
                        Tamilnadu Slum Clearance Board,
                        Kamarajar Salai,
                        Chennai - 600 005                                        ... Respondents



                               Civil Revision Petition is filed under Section 115 of Code of Civil

                     Procedure to set aside the order of the learned XIV Assistant Judge, City

                     Civil Court, Chennai dated 25.02.2019 passed in I.A.No.16250 of 2017 in

                     O.S.No.379 of 2010



                                             For Petitioners         : Mr.C.Uma Shankar

                                             For Respondents         : Mr.V.Vadivel for R1 and R2
                                                                       No appearance for R3


                     1/13


https://www.mhc.tn.gov.in/judis/
                                                                                   C.R.P.No.1392 of 2019



                                                         ORDER

The present Civil Revision Petition has been filed against the order

of the learned XIV Assistant Judge, City Civil Court, Chennai dated

25.02.2019 passed in I.A.No.16250 of 2017 in O.S.No.379 of 2010 by

raising various grounds.

2. The petitioners are the defendants in the suit and the suit is filed

by the respondents / plaintiffs for partition and separate possesion of 1/3

share of the 1st respondent / plaintiff about 274 sq.ft., of the suit property

and separate possession of 1/3 share of the 2nd respondent / plaintiff

about 274 sq.ft., of suit property hereto by metes and bounds including

superstructure and for permanent injunction restraining the respondents 1

and 2 and their men from alinenating and encumbering the suit schedule

property. Resisting the same, written statement was filed by the petitioners

/ defendants to the suit denying all the averments made by the respondents

/ plaintiffs in the suit.

4. Pending adjudication of the suit, the petitioners / defendants have

filed I.A.No.16250 of 2017 seeking the following prayers:-

(i) to condone the delay of 1905 days in payment of Rs.400/- passed

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in I.A.No.18342 of 2010 in O.S.No.379 of 2010

(ii) to condone the delay in filing the petition to set aside the decree

dated 10.08.2012 passed in I.A.No.18342 of 2010 in O.S.No.379 of 2010

(ii) to set aside the exparte preliminary decree dated 10.08.2012

passed in O.S.No.379 of 2010.

5. The petitioners/defendants in the I.A.No. 16250 of 2017 had

averred that after filing the written statement, the petitioners used to meet

the advocate and inturn, he informed that the case is pending and the

petitioners had believed the said advocate. Further, the petitioners have

not even explained about the contents of the affidavit while signing the

same and the petitioners were asked to receive the affidavit and petition in

I.A.No.11832 of 2017 in the above suit seeking for passing final decree.

Thereafter, another advocate had informed to the petitioners that already

preliminary decree was passed as early as on 10.08.2012 and yet another

application was filed by the earlier advocate with a prayer to set aside the

exparte order dated 18.08.2010 passed in I.A.No.18342 of 2010. The said

petition was allowed with a condition on payment of Rs.400/- towards cost

and the said information was also not infomed by the Advocate. Hence a

preliminary decree was passed on 10.08.2012.

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6. The petitioners / defendants had further stated in the I.A.No.

16250 of 2017 that either non payment of Rs.400/- towards condition

imposed in I.A.No.18342 of 2010 as well as the absence on 18.08.2010 in

the above suit is neither wilful nor wanton and the petitioners are not aware

of the exparte decree passed. Further, the prayer in the suit cannot be

allowed in the eye of law and the petitioners are willing to deposit any

amount, as fixed by the court below and also ready to get along with the

suit on day to-day basis. Moreover, the petitioners are uneducated and not

having knowledge of court proceedings, hence prayed to allow the petition

by setting aside the exparte decree and also to condone the delay of 1905

days in filing the petition.

7. Per contra, a detailed counter affidavit was filed by the

respondents stating that the suit is for partition and separate possession of

their shares in the suit schedule property and for permanent injunction,

wherein preliminary decree was passed on 10.08.2012 and on the basis of

preliminary decree, final decree application I.A.No.11833 of 2017 was filed

and at this stage, the petitioners have comeforward with the application to

condone the delay of 1905 days, which is nothing but abnormal and

throwing blame on their erstwhile consels. Further, the petitioners are not

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diligent in attending the case and the present application without restoring

the I.A.No.18342 of 2010 after compliance of the conditional order passed

therein, the present application is not maintainable.

8. That apart, the respondents would contend that there is no

sufficient valid reason stated by the petitioners for condonation of delay of

1905 days in filing the application and the present application by the

petitioners is nothing but delaying tactics, for which the condone delay

application should not be entertained and prayed to dismiss the petition.

9. The court below after considering the pleadings and counter

pleadings on either side and after going through the citations and the

documents placed on record, had dismissed the petition, as against the

same, the petitioners have filed the present Civil Revision Petition.

10. The learned counsel for the petitioners would contend that the

counsel for the petitioners before the court below did not reveal the fact

that the application to set aside the exparte order was allowed on conditon

of Rs.400/- and thus preliminary decree was passed on 10.08.2012.

Further the petitioners are illeterate and they did not have legal knowledge

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to understand the court proceedings. Further, the court below had failed to

see that for the fault of the counsel, the litigants shall not be prejudiced and

that the technical objection was cleared and clarified by filing Ex.P.1.

11. Contending contra, the respondents would submit that the

petitioners have willfully and wantonly allowed the preliminary decree to be

passed in the suit and now they cannot blame their erstwhile counsel. The

court below had rightly dismissed the above application in I.A.No.16250 of

2017 on the ground that the petitioners were given sufficient opportunity

but still they failed to utilize the same, later cannot balme their erstwhile

counsels for the delay. That apart, once the order is passed in

I.A.No.18342 of 2010 on 21.06.2011 and it is not challenged, the said order

became final, hence filing a second application of similar nature, cannot be

sustained, therefore, pleaded to dismiss the petition.

12. On perusal of the order passed by the court below it is seen that

the petitioners have already filed the application to set aside the exparte

decree dated 18.08.2010 in I.A.No.18342 of 2010 and the same was

allowed on payment of cost of Rs.400/-, the said payment was not made

and the petition was dismissed. Due to the owing facts, the petitioners

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have to restore the said application and they cannot file a fresh application

for the same reason. Even after filing the set aside application for payment

of cost, sufficient chances were granted by the court below, but the

petitioners are not interested to proceed with the suit. The erstwhile

counsel has not given the change of vakalath for the petitioners and the

same is evident through Ex.P.1, which is a letter of Mr.P.Amarnath,

Advocate who is not the previous counsel for the petitioners and since the

suit is for paritition, the petitioners are bounden to follow the case

proceedings, while observing so, the court below had dismissed the

petition.

13. Upon going through the documents placed on record it is clear

that there is no sufficient reason shown by the petitioners to believe that

the petitioners are unaware of the status of the case for a long time, i.e, for

1905 days. It is crystal clear that the final decree application was filed

during July, 2017 and the application to set aside the exparate order was

filed by the petitioners only on 30.11.2017, each and every day delay

should be explained properly and the petitioners have failed to do so. Even

assuming that the counsel had not informed the status of the case properly

to the petitioners, they should be diligent to follow the case, since the suit is

for partition.

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14. It is to be noted that Section 5 of the Limitation Act, 1963 enjoins

a 'Court', to admit an 'Appeal' or an 'Application' after the lapse of the

prescribed period on sufficient cause being shown for the delay. Indeed,

the term 'sufficient cause' is an elastic one. It is to be remembered that the

existence of a just/valid cause is a condition precedent to be satisfied by a

party if the Court of Law is subjectively satisfied as to the reasons assigned

in the delay in issue, then, it can condone the delay to do complete justice

between the parties. However, if the conditions are not satisfied, there are

no scope for allowing the condonation of delay petition. If the delay in

question is not either properly or satisfactorily and convincingly explained,

the Court of Law cannot condone the delay on sympathetic ground alone,

as per decision of Hon'ble supreme Court BrijeshKumar V. State of

Haryana reported in AIR 2014 SCC at Page 1612.

15. At this juncture, it is worthwhile to recall and recollect the

Judgment of the Hon'ble Supreme Court H.Dohil Constructions

Company Private Limited V. Nahar Exports Limited and Another

reported in (2015) 1 Supreme Court Cases at Page 680 wherein at

Special Page 690, Paragraph No.20 and at Special Page 692, Paragraph

No.24, it is observed as under:

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20. In the case on hand, the delay in refiling was of 1727 days. As rightly pointed out by the learned Senior Counsel for the appellant(s), the respondents paid the scrutiny charges on 11.04.2008 as disclosed in Receipt No.73 issued by the High Court of that date. When the appeal papers were filed on 06.09.2007 and the scrutiny charges were paid on 11-04-2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the appellant(s), we find that there was no convincing explanation as to how the respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial court. As a matter of fact the appeal papers were filed without payment of any court fee. This only affirms the stand of the appellant(s) that there was no bonafide in the respondents' claim and that they were seriously interested in challenging the

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Judgment of the trial court as against the non-grant of relief of specific performance. We also fail to see as to who Respondent 1, which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any follow-up to ensure that its appeals were duly registered in the High Court. In this context the maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days' delay involved in filing the appeals.

24.When we apply those principles of Bhattacharjee Case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal

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papers on 06.09.2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona-fides in its approach. It also required to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, courts are required to weigh the scale of balance of justice in respect of both the parties and the same principal cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the court in the matter of condonation of delay. The respondents had filed the suit for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.”

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16. In so far as the present case is concerned, the petitioners have

not shown any sufficient and valid reason for the delay of 1905 days in

preferring the petition. The reasons assigned by the petitioners that the

erstwhile counsel has given the change of vakalath for the petitioners,

lacks bonafide, in view of Ex.P.1, which is a letter of Mr.P.Amarnath,

Advocate, who is not the previsous counsel for the petitioners, in other

words, the said learned counsel, who has given the change of vakalath for

the petitioners has not appeared for the petitioners and hence the same is

unacceptable by this Court. Suffice it for this Court to state that the

reasons ascribed by the Petitioners are not based on justifiable reasons

and in view of the Judgment of the Hon'ble Supreme Court mentioned