Madras High Court
Thirunagalingam vs Lingeswaran on 9 November, 2021
C.R.P.(MD) Nos.1688 & 1689 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) Nos.1688 & 1689 of 2019
and
C.M.P.(MD) Nos.8718 & 8720 of 2019
Thirunagalingam .. Petitioner in both CRPs.
-vs-
Lingeswaran .. Respondent
in CRP(MD) No.1688/2019
Tamizharasi .. Respondent
in CRP(MD) No.1689/2019
Prayer :- Petitions filed under Section 115 of Code of Civil Procedure
against the fair and decretal orders dated 19.08.2019 made in I.A.Nos.
119 of 2019 and 462 of 2018 respectively in O.S.No.110 of 2015 on the
file of the learned Subordinate Judge, Paramakudi.
For Petitioner : Mr.S.Srinivasa Raghavan
(In both CRPs)
For Respondent : Mr.A.Sivaji
(In both CRPs)
******
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C.R.P.(MD) Nos.1688 & 1689 of 2019
COMMON ORDER
The petitioner/plaintiff is before this Court challenging the orders
dated 19.08.2019 passed by the Sub Court, Paramakudi in I.A.Nos.119 of
2019 and 462 of 2018 respectively, in O.S.No.110 of 2015.
2.For the sake of convenience, the parties are referred to as per
their rank in the suit in O.S.No.110 of 2015.
3.I.A.No.462 of 2018 is filed by the second defendant under
Section 5 of the Limitation Act, to condone the delay of 467 days in
filing the petition to set aside the ex-parte decree passed against her.
3.1.I.A.No.119 of 2019 is filed by the first defendant to condone
the delay of 712 days in filing the petition to set aside the ex-parte decree
passed against him.
3.2.Both the Interlocutory Applications arise out of a single suit
viz., O.S.No.110 of 2015.
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C.R.P.(MD) Nos.1688 & 1689 of 2019
4.The facts, necessary to dispose of the above Civil Revision
Petitions, are as follows:-
4.1.The plaintiff and the first defendant had entered into an
Agreement of Sale dated 17.08.2015 in respect of the suit scheduled
property. Under the agreement, the plaintiff had agreed to purchase the
property for a sum of Rs.3,00,000/- for which a sum of Rs.2,60,000/- was
paid as advance on the date of the signing of the agreement. The balance
amount of Rs.40,000/- was to be paid within a period of one month from
the date of the agreement.
4.2.It is the case of the plaintiff that he was ready and willing to
proceed with the sale. However, on 10.09.2015, when he had
approached the first defendant with the balance sale consideration
requesting him to execute the Sale Deed, the first defendant refused for
not coming forward to execute the Sale Deed immediately. Thereafter,
on 12.09.2015, the plaintiff was surprised to receive a caveat, in which
the second defendant was impleaded as a party. After enquiry, it was
found that the first defendant had illegally sold the suit scheduled
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C.R.P.(MD) Nos.1688 & 1689 of 2019
property to the second defendant. Since the first defendant did not even
thereafter come forward to execute the Sale Deed, the plaintiff had come
forward with the present suit.
4.3.The first defendant had taken a plea that the agreement was
executed only as a security for the loan borrowed by the plaintiff and he
denied that he had entered into an agreement to sell the property to the
plaintiff.
5.Mr.S.Srinivasa Raghavan, learned counsel appearing for the
petitioner would submit that though written statement was filed by both
the defendants, however, they did not participate in the trial and
thereafter, the learned Sub Judge, Paramakudi had decreed the suit as
prayed for.
6.It is informed by the learned counsel appearing for the plaintiff
that possession was given to the plaintiff on the date of signing of the
agreement and the Sale Deed had also been executed through Court in
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C.R.P.(MD) Nos.1688 & 1689 of 2019
favour of the plaintiff and the defendants, who are the fence-sitters, have
not come forward with any application to set aside the ex-parte order
earlier.
7.After the Sale Deed was executed in favour of the plaintiff, on
16.02.2018 and 19.02.2018, applications have been moved by the second
defendant and first defendant seeking to condone the delay of 712 days
and 467 days respectively, in filing the petitions to set aside the ex-parte
decree. In the affidavit filed in support of the said applications, the
defendants would submit that P.W.1 was suffering from Jaundice and
therefore, they could not attend the proceedings, as a result of which the
suit was decreed. They would submit that the ex-parte judgment came to
their knowledge only on 16.06.2018. The plaintiff had filed a counter
stating that the applications are nothing but an abuse of process of Court,
since the defendants were very much aware about the pendency of the
suit as well as the stage at which it was and after filing the written
statement, they have not come to participate in the proceedings. The Sale
Deed in respect of the property has already been executed in favour of
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C.R.P.(MD) Nos.1688 & 1689 of 2019
the plaintiff by the Court and possession of the property is also in the
hands of the plaintiff. If at this juncture, the ex-parte decree is set aside,
it would cause tremendous hardship to the plaintiff.
8.Learned counsel appearing for the petitioner/plaintiff would
draw the attention of this Court to the fact that the defendants were aware
about the pendency of the proceedings and after filing their written
statement, the defendants have stayed away from the proceedings. The
ex-parte decree had been passed as early as on 07.02.2017. However, the
applications have been filed much later and there are no convincing
reasons given for condoning the delay. In the affidavit filed by the 1st
defendant in support of the petition to condone the delay in setting aside
the ex-parte decree, the reason that has been provided is that the first
defendant had come to know about the ex-parte decree through his
relative, a resident of Nainar Kovil and thereafter, he has ascertained the
situation with his advocate, therefore, he was not able to participate in
the proceedings. As regards the second defendant, she would submit that
she was suffering from Jaundice and therefore, could attend the Court.
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C.R.P.(MD) Nos.1688 & 1689 of 2019
Thus, the reasons are not sufficient to condone such a huge delay. He
would submit that condonation of delay is not a matter of right and the
person seeking the condonation has to establish sufficient cause for
having the delay condoned.
9.Per contra, Mr.A.Sivaji, learned counsel appearing on behalf of
the respondents/defendants would contend that the defendants have a
very good case to urge on merits. The Agreement of Sale is not an
agreement, but only given as a security. Further, the first defendant has
sold the property to the second defendant and is bound to clear the title in
respect of the suit scheduled property. He would further submit that a
reading of the Agreement of Sale would reveal that it was only given as a
security, since the Agreement of Sale contains a sentence that “i\
ml;thd;]; njhiff;F i\ fPo;f;fz;l nrhj;J IhkPd;”. He would
further contend that the plaintiff has not proved his readiness and
willingness and these factors have not been taken into account by the
learned Sub Judge, Paramakudi before decreeing the suit. Therefore, the
learned Sub Judge has rightly condoned the delay. He would further
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C.R.P.(MD) Nos.1688 & 1689 of 2019
submit that as directed by the Court below, the costs have also been
deposited to the credit of the suit.
10.Heard the learned counsels for the parties and perused the
materials placed on record.
11.The defendants have filed the Interlocutory Applications for
condoning the delay in filing the necessary petitions for setting aside the
ex-parte decree. The affidavit is totally bereft of any reason as to why
the defendants have come forward to file these applications with such a
huge delay. The reason given was that the second defendant was
suffering from Jaundice. It is to be noted that in the case of the first
defendant, the delay was enormous, that is, 712 days followed by the
second defendant with a delay of 467 days. Apart from a vague plea of
Jaundice, no other reasons have been given for the delay. The defendants
were very much aware about the pendency of the suit, since they have
entered appearance and filed their written statement. After the filing of
the written statement, the defendants have not evinced any interest in
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C.R.P.(MD) Nos.1688 & 1689 of 2019
proceeding with the trial and ultimately, the ex-parte decree came to be
passed. Another factor that has to be taken note of is that on 10.09.2015,
when the plaintiff had approached the first defendant to execute the Sale
Deed with the balance sale consideration of Rs.40,000/-, the first
defendant, who took time to revert, thereafter, had filed a caveat.
12.The learned counsel for the respondents/defendants had
submitted that there was no pre-suit notice.
13.Considering the fact that the first defendant himself has filed
the caveat, it only implies that he was aware that proceedings would be
initiated against him. Though the first defendant has taken a plea that the
Agreement of Sale was nothing but a security for a loan, he has however,
not taken immediate steps to participate in the proceedings. Therefore, in
the absence of sufficient reasons for the condonation of delay, the order
passed by the learned Sub Judge, Paramakudi in condoning the delay by
awarding compensation, is totally erroneous. The learned Sub Judge has
totally overlooked the fact that the Sale Deed has now been executed in
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C.R.P.(MD) Nos.1688 & 1689 of 2019
favour of the plaintiff and the balance sale consideration has also been
deposited into Court.
14.In the above circumstances, the orders dated 19.08.2019, passed
by the learned Sub Judge, Paramakudi in I.A.Nos.462 of 2018 and 119
of 2019 cannot be sustained and are accordingly, set aside.
Consequently, the Civil Revision Petitions are allowed. No costs.
Connected miscellaneous petitions are closed.
09.11.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
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C.R.P.(MD) Nos.1688 & 1689 of 2019
To
The learned Subordinate Judge, Paramakudi.
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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C.R.P.(MD) Nos.1688 & 1689 of 2019
P.T.ASHA, J.
abr
C.R.P.(MD) Nos.1688 & 1689 of 2019
Dated: 09.11.2021
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