Madras High Court
Vanakkara Azeez Basha vs R.Sridhar on 27 October, 2021
C.R.P.(NPD).No.3167 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD).No.3167 of 2015
and
M.P.Nos.1, 2 of 2015 & C.M.P.Nos.1069, 1070 of 2016
Vanakkara Azeez Basha .. Petitioner
Vs.
R.Sridhar .. Respondent
Prayer: This Civil Revision Petition is filed under Section 115 of C.P.C.,
against the fair and decretal order dated 02.06.2015 made in I.A.No.68 of
2014 in O.S.No.101 of 2009 on the file of the Principal District Court,
Vellore.
For Petitioner : Mr.Palani Selvaraj
For Respondent : Mr.M.Sriram,
Senior Counsel
for Mr.S.Yashwanth
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the fair and decreetal order
dated 02.06.2015 made in I.A.No.68 of 2014 in O.S.No.101 of 2009 on the
file of the Principal District Court, Vellore.
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2.The petitioner is the 2nd defendant and the respondent is plaintiff in
O.S.No.101 of 2009 on the file of the Principal District Court, Vellore. The
respondent filed the said suit against one Beebee John @ Shahina Bee,
mother of the petitioner as 1st defendant and the petitioner herein for the relief
of specific performance for agreement of sale dated 15.06.2006. In the said
suit, the said Beebee John @ Shahina Bee and the petitioner did not appear.
They were set exparte and exparte decree was passed on 24.08.2011. The
respondent filed E.P.No.131 of 2011 for a direction to the petitioner and said
Beebee John @ Shahina Bee under Order XXI Rule 35, for execution of the
sale deed and for a direction to the petitioner and said Beebee John @
Shahina Bee to deliver the possession to the respondent. On 05.12.2012, the
sale deed was executed by the Court. The respondent filed E.A.No.71 of 2013
to break open for taking delivery of possession by Court's amin and hand
over the possession to the respondent. The same was ordered and lock was
broke open and suit property was handed over to the respondent on
22.02.2014.
3.The petitioner filed E.A.No.28 of 2014 under Order XXI Rule 58 and
Sections 47 & 151 of C.P.C. to dismiss E.P.No.131 of 2011, E.A.No.71 of
2013, E.A.No.183 of 2013 and E.A.No.24 of 2014 by adjudicating the claim
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of the respondent and stay of further proceedings in the E.P.No.131 of 2011.
Subsequently, the petitioner filed the present I.A.No.68 of 2014 in
O.S.No.101 of 2009 to condone the delay of 922 days in filing the petition to
set aside the exparte decree. According to petitioner, he and his Mother / 1st
defendant (hereinafter referred to as '1st defendant') were suffering from
various ailments and went to Bangalore in the year 2005 for taking treatment.
The first defendant suffers from psychiatric problem and at various times will
make hue and cry and used to act unsensely. Due to petitioner's and 1st
defendant's ailment, the petitioner was forced to stay in Bangalore for months
together. Taking advantage of the same and abusing due process of law, the
respondent got exparte decree dated 24.08.2011. The petitioner was not
issued with any suit summons or notice in the E.P. Due to ill health and
mental condition of 1st defendant, the Mother of the petitioner, he could not
remain in Ambur, where the suit property is situated. The petitioner came to
know about the exparte decree only on 22.02.2014, when Court amin broke
open the lock of the petitioner's house. The petitioner obtained certified
copies and filed the present petition to condone the delay of 922 days in filing
the petition to set aside the exparte decree dated 24.08.2011. The 1st
defendant filed suit in O.S.No.10 of 2012 on the file of the Principal District
Munsif, Ambur, against the respondent for permanent injunction restraining
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the respondent herein from interfering with her peaceful possession and
enjoyment of the suit property. In the written statement filed by the
respondent in the said suit, the respondent has not mentioned about the
exparte decree passed in the present suit and suppressing the death of the 1 st
defendant on 06.11.2013, continued to mislead the Court and obtained
exparte order in E.P. also. The petitioner has got good case on merits. If delay
is not condoned, the petitioner will be put to irreparable loss and hardship and
prayed for condoning the delay.
4.The respondent filed counter affidavit and denied all the averments
made in the affidavit and submitted that the petitioner except stating that he is
temporarily residing in Bangalore, he has not furnished the Bangalore
address. It is not correct to state that petitioner and his mother were taking
treatment. The petitioner and 1st defendant have not filed any document to
prove their case. The petitioner's wife filed O.S.No.152 of 2007 on the file of
the District Munsif Court, Ambur, against the respondent for permanent
injunction and the same was dismissed on 06.03.2008. The respondent denied
that suit summons were not served on the petitioner. The petitioner refused to
receive the summons sent by the Court and summons were served on the
petitioner and 1st defendant by effecting paper publication. It is not correct to
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state that the petitioner came to know about the exparte decree only on
22.02.2014. The petitioner is having house on each side of the suit property.
The petitioner informed about the death of the 1st defendant in the suit in
O.S.No.10 of 2012 filed by the 1st defendant herein against the respondent
only after the respondent took possession of the suit property. Based on the
sale agreement dated 15.06.2006, the suit was filed and decree was passed on
24.08.2011. The respondent took possession in E.A.No.71 of 2013 and the
present petition has been filed to some how or other prevent the respondent
from enjoying the fruits of the decree. The petitioner has not explained the
delay properly and prayed for dismissal of I.A.No.68 of 2014.
5.Before the learned Judge, the petitioner examined himself as P.W.1,
one P.K.Althap Ahamed was examined as P.W.2 and marked five documents
as Exs.P1 to P5. The respondent examined himself as R.W.1 and no
document was marked. The learned Judge considering the averments in the
affidavit, counter affidavit and oral and documentary evidence, by the order
dated 02.06.2015, dismissed the I.A.No.68 of 2014.
6.Against the said order dated 02.06.2015 made in I.A.No.68 of 2014,
the petitioner has come out with the present Civil Revision Petition.
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7.The learned counsel appearing for the petitioner reiterated the
averments in the affidavit filed in support of the present I.A.No.68 of 2014. It
is the contention of the learned counsel appearing for the petitioner that
petitioner and 1st defendant, due to their illness have gone to Bangalore in the
year 2005 itself. The petitioner has produced document to show that he was
residing at Bangalore during the relevant period. The petitioner examined
himself as P.W.1 and examined one P.K.Althap Ahamed as P.W.2 and filed
Ration Card, Gas connection, Aadhar card and medical report of petitioner
and 1st defendant to prove that he was residing at Bangalore. The learned
Judge did not consider the documents filed by petitioner. On the other hand,
the learned Judge, erroneously held that petitioner has not filed any document
to prove his case. Due to this error, the impugned order is liable to be set
aside. The learned counsel appearing for the petitioner further contended that
in the proof affidavit, he has given his Bangalore address. The learned Judge
has not considered the same. The petitioner did not receive summons and
came to know about the exparte decree only on 22.02.2014, when the Court
official broke open the lock of the suit property. The petitioner immediately
filed E.A.No.24 of 2014 in E.P.No.131 of 2011 under Order XXI Rule 58 &
42 under Section 151 of C.P.C. After obtaining the certified copy of the plaint
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and other documents, the petitioner filed the present I.A.No.68 of 2014 in
O.S.No.101 of 2009 to condone the delay of 922 days in filing the petition to
set aside the exparte decree. The petitioner has given valid and acceptable
reason for condoning the delay.
8.According to the petitioner, he and 1st defendant did not execute the
alleged sale agreement and they have handed over the original documents to
the respondent only after obtaining the loan. The finding of the learned Judge
that once the petitioner entered into sale agreement, then it is the duty of the
petitioner to inform his absence to the agreement holder is preconceived and
perverse resulted in taking away and destroying the petitioner's right to prove
that alleged sale agreement are forged and fabricated. The learned counsel
appearing for the petitioner further contended that 1st defendant filed suit in
O.S.No.10 of 2012 against the respondent for permanent injunction
restraining the respondent herein from interfering with her peaceful
possession and enjoyment of the suit property. The respondent filed written
statement on 28.06.2013 after obtaining exparte decree for specific
performance. With dishonest intention, the respondent did not mention the
exparte decree obtained by him in O.S.No.101 of 2009 and also taken directly
contradictory stand with regard to ownership of suit property. This clearly
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shows that respondent is abusing the process of Court to grab the petitioner's
property. The learned counsel appearing for the petitioner contended that
application for condoning the delay must be liberally considered and
petitioner must be given an opportunity to put forth his case on merits. When
the property worth heavy amount is involved, the delay has to be condoned
and case has to be decided on merits. Substantive rights of parties should not
be defeated only on the ground of delay. The petitioner, in view of the stand
taken by him, must be given an opportunity to prove that alleged agreement
of sale is forged and fabricated and must be given an opportunity to contest
the case on merits. No prejudice would be caused to the respondent and
prayed for allowing the Civil Revision Petition.
9.In support of his contention, he relied on the following judgments:
(i) 2015 (1) CTC 811 [Ajay Kumar Gulecha Vs. J.Vijayakumar and
another]:
“14. The Hon’ble Supreme Court recently in Esha
Bhattacharjee v. Managing Committee of Raghunathpur Nafar
Academy & others, 2013(5) CTC 547 (SC) : 2013 (5) LW 20 held that
there should be a liberal, pragmatic, justice oriented, non-pedantic
approach while dealing with an Application for condonation of delay.
The Hon’ble Supreme Court referred to its earlier judgments in G.
Ramegowda, Major and others v. Special Land Acquisition Officer,
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Bangalore, 1988(2) SCC 142; O.P. Kathpallia v. Lakhmir Singh
(dead) and others, 1984 (4) SCC 66; State of Nagaland v. Lipok AO
and others, 2005 (1) MWN (Cr.) 166 (SC) : 2005 (3) SCC 752; New
India Insurance Co. Ltd. v. Shanti Misra, 1975 (2) SCC 840; Oriental
Aroma Chemical Industries Limited v. Gujarat Industrial
Development Corporation and another, 2010 (5) SCC 459, which
declared that the Court should be liberal in dealing with Condone
Delay Petition. The principles are elucidated in the said judgment and
Paragraphs 15 & 16 of the Judgment are usefully extracted as
follows:
'15. From the aforesaid authorities the principles that can broadly be
culled out are:
(i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation
of delay, for the Courts are not supposed to legalise injustice but are
obliged to remove injustice.
(ii) The terms sufficient cause should be understood in their proper
spirit, philosophy and purpose regard being had to the fact that these
terms are basically elastic and are to be applied in proper perspective
to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical
considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay
but, gross negligence on the part of the Counsel or litigant is to be
taken note of.
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(v) Lack of bona fides imputable to a party seeking condonation of
delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not
affect public justice and cause public mischief because the Courts are
required to be vigilant so that in the ultimate eventuate there is no
real failure of justice.
(vii) The concept of liberal approach has to en capsule the conception
of reasonableness and it cannot be allowed a totally unfettered free
play.
(viii) There is a distinction between inordinate delay and a delay of
short duration or few days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted. That apart, the
first one warrants strict approach whereas the second calls for a
liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the Courts
are required to weigh the scale of balance of justice in respect of both
parties and the said principle cannot be given a total go by in the
name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the
application are fanciful, the Courts should be vigilant not to expose
the other side unnecessarily to face such a litigation.
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(xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the
approach should be based on the paradigm of judicial discretion
which is founded on objective reasoning and not on individual
perception.
(xiii) The State or a public body or an entity representing a collective
cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines
taking note of the present day scenario. They are:
(a) An Application for condonation of delay should be drafter with
careful concern and not in a half hazard manner harbouring the
notion that the Courts are required to condone delay on the bedrock
of the principle that adjudication of a lis on merits is seminal to
justice dispensation system.
(b) An application for condonation of delay should not be dealt with
in a routine manner on the base of individual philosophy which is
basically subjective.
(c) Though no precise formula can be laid down regard being had to
the concept of judicial discretion, yet a conscious effort for achieving
consistency and collegiality of the adjudicatory system should be
made as that is the ultimate institutional motto.
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(d) The increasing tendency to perceive delay as a non-serious matter
and, hence, lackadaisical propensity can be exhibited in a non-
challant manner requires to be curbed, of course, within legal
parameters.'
The Hon’ble Supreme Court also referred to some of its Judgments
regarding Law of Limitation. Paragraphs 10,11 & 12 are usefully
extracted as follows:
'10. In this context, we may refer with profit to the authority in
Oriental Aroma Chemical Industries Limited v. Gujarat Industrial
Development Corporation and another, 2010 (5) SCC 459, where a
Two-Judge Bench of this Court has observed that the law of limitation
is founded on public policy. The legislature does not prescribe
limitation with the object of destroying the rights of the parties but to
ensure that they do not resort to dilatory tactics and seek remedy
without delay. The idea is that every legal remedy must be kept alive
for a period fixed by the legislature. To put it differently, the Law of
Limitation prescribes a period within which legal remedy can be
availed for redress of the legal injury. At the same time, the Courts
are bestowed with the power to condone the delay, if sufficient cause
is shown for not availing the remedy within the stipulated time.
Thereafter, the learned Judges proceeded to state that this Court has
justifiably advocated adoption of liberal approach in condoning the
delay of short duration and a stricter approach where the delay is
inordinate.
11. In Improvement Trust, Ludhiana v. Ujagar Singh and
others, 2010 (6) SCC 786, it has been held that while considering an
Application for condonation of delay no straitjacket formula is
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prescribed to come to the conclusion if sufficient and good grounds
have been made out or not. It has been further stated therein that
each case has to be weighed from its facts and the circumstances in
which the party acts and behaves.
12. A reference to the principle stated in Balwant Singh (dead)
v. Jagdish Singh and others, 2010 (8) SCC 685 would be quite
fruitful. In the said case the Court referred to the pronouncements in
Union of India v. Ram Charan, AIR 1964 SC 215; P.K.
Ramachandran v. State of Kerala, 1997 (2) CTC 663 (SC): 1997 (7)
SCC 556; and Katari Suryanarayana v. Koppisetti Subba Rao, 2009
(4) CTC 286 (SC) : 2009 (11) SCC 183 and stated thus:
25. We may state that even if the term sufficient cause has to
receive liberal construction, it must squarely fall within the concept of
reasonable time and proper conduct of the party concerned. The
purpose of introducing liberal construction normally is to introduce
the concept of reasonableness as it is understood in its general
connotation.
26. The Law of Limitation is a substantive law and has
definite consequences on the right and obligation of a party to arise.
These principles should be adhered to and applied appropriately
depending on the facts and circumstances of a given case. Once a
valuable right has accrued in favour of one party as a result of the
failure of the other party to explain the delay by showing sufficient
cause and its own conduct, it will be unreasonable to take away that
right on the mere asking of the Applicant, particularly when the delay
is directly a result of negligence, default or inaction of that party.
Justice must be done to both parties equally. Then alone the ends of
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justice can be achieved. If a party has been thoroughly negligent in
implementing its rights and remedies, it will be equally unfair to
deprive the other party of a valuable right that has accrued to it in
law as a result of his acting vigilantly.”
(ii) (2015) 15 SCC 659 [GMG Engineering Industries and others Vs.
Issa Green Power Solution and others]:
“7. It is well settled that the expression ‘sufficient cause’ is to
receive liberal construction so as to advance substantial justice. When
there is no negligence, inaction or want of bonafide is imputable to
the appellants, the delay has to be condoned. The discretion is to be
exercised like any other judicial discretion with vigilance and
circumspection. The discretion is not to be exercised in any arbitrary,
vague or fanciful manner. The true test is to see whether the applicant
has acted with due diligence.”
(iii) (2012) 12 SCC 693 [B.Madhuri Goud Vs. B.Damodar Reddy]:
“5.We have heard Learned Counsel for the parties. The
Limitation Act, 1963 has not been enacted with the object of
destroying the rights of the parties but to ensure that they approach
the court for vindication of their rights without unreasonable delay.
The idea underlying the concept of limitation is that every remedy
should remain alive only till the expiry of the period fixed by the
legislature. At the same time, the courts are empowered to condone
the delay provided that sufficient cause is shown by the applicant for
not availing the remedy within the prescribed period of limitation.
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6.The expression “sufficient cause” used in Section 5 of the
Limitation Act, 1963 and other statutes is elastic enough to enable the
courts to apply the law in a meaningful manner which serves the ends
of justice. No hard-and-fast rule has been or can be laid down for
deciding the applications for condonation of delay but over the years
courts have repeatedly observed that a liberal approach needs to be
adopted in such matters so that substantive rights of the parties are
not defeated only on the ground of delay.”
(iv) 2008 (1) CTC 785 [Ravi Enterprises, rep. By its Partner T.S.Ravi
Vs. Indian Bank, Thiruvottiyuur Branch, T.H.Road, Thiruvottiyur,
Chennai 600 019 and others]:
“14.We are of the view that refusal to condone delay can
result in a meritorious matter being thrown at the early stage and
cause of justice being defeated. Moreover, the law courts should not
prefer to adopt a pedantic approach and on the other hand a
pragmatic approach has to be made to deliver substantial justice
overriding technical considerations as far as the present case is
concerned. Furthermore, a party does not stand to benefit by
adopting delay. Per contra, he runs a grave risk. It cannot gainsaid
that judiciary is respected because it is capable of removing injustice
and is expected to do so. Admittedly, the claim of the first respondent
Bank is for Rs.20,71,776/- together with interest at the rate of 19.89%
p.a. with quarterly rests from the date of the application till the date
of realisation etc. The learned counsel for the writ petitioners informs
this Court that already a sum of Rs.15 lakhs was paid and the
petitioners/appellants/defendants are willing to pay the rest of the
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amount and to settle the matter. It cannot be denied that the Debt
Recovery Tribunal has power to recall the Recovery Certificate even
after its issuance on the basis that the matter was settled between the
creditor/Bank and the borrower/guarantor. No wonder the recovery
of due is an essential function of any Bank. At this juncture, it cannot
be lost sight of that the preamble of the Recovery of Debts due to
Banks and financial Institutions Act, 1993 speaks of expeditious
adjudication and recovery of debts due to banks and financial
institutions. Moreover, merely because an application for setting
aside the exparte order having been allowed to go for wilful default
and also allowed the restoration petition also dismissed for default, it
cannot said by any means that the writ petitioners lack bonafides in
their endeavour to set aside the exparte order. In short, the length of
delay is immaterial, in our considered opinion.”
10.Per contra, the learned Senior Counsel appearing for the respondent
submitted that petitioner, apart from owning the suit property, is also owning
two other houses at northern and southern sides of the suit property. The
petitioner has leased out the house on the southern side of the suit property
for rent and is staying in the suit property and the house in the northern side
of the suit property. The petitioner has admitted in cross examination that he
is residing in the suit property and the house on the northern side of the suit
property. According to the petitioner, he has shifted his residence to
Bangalore in the year 2005 itself as he was compelled to take treatment for
himself and for 1st defendant. The medical records produced by the petitioner
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to show that he was in Bangalore are lab reports and prescriptions issued by
Doctors. These documents are cooked up documents. The petitioner has not
produced any document to show that he took treatment as inpatient. Even in
the documents produced, it is seen that he has taken treatment for few days
commencing from 2008 to 2011. The petitioner has not produced any lease
deed to prove that he was residing in Bangalore. The address given in the
Ration Card and Gas connection are two different addresses. The petitioner
has not produced any document now filed in the typed set of papers in
Sl.Nos.2 to 6 before the Trial Court and the same cannot be relied on by the
petitioner in the present Civil Revision Petition. P.W.2 in his cross
examination has stated that the petitioner used to visit Ambur once or twice
in a month and will stay for one or two days in the suit property. The
petitioner in the affidavit filed in support of the present petition has given
only the Ambur address, i.e., the suit property and has stated that he is
temporarily residing at Bangalore. In the affidavit, he has not given his
Bangalore address. Only when the same was pointed out by the respondent in
his counter, the petitioner in the proof affidavit has given some Bangalore
address.
11.The learned Senior Counsel appearing for the respondent further
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submitted that the wife of the petitioner filed suit in O.S.No.152 of 2007 on
the file of the District Munsif Court, Ambur, against the respondent for
permanent injunction. In the said suit, the petitioner's wife has given her
address as the present suit property and the schedule of the property is also
one and the same. Similarly the 1st defendant filed suit in O.S.No.10 of 2012
on the file of the Principal District Munsif, Ambur, for permanent injunction
restraining the respondent herein from interfering with her peaceful
possession and enjoyment of the suit property. She has also given the address
of the suit property as her address in the plaint. The petitioner was contesting
the cases before the Magistrate Court and other Court by giving his Ambur
address. Hence, he cannot contend that he was residing in Bangalore or suit
summons were not served on him and 1st defendant. Further, the Court has
issued summons to the petitioner and 1st defendant and summons were
returned by the Bailiff with endorsement 'defendants left 10 years before and
settled at abroad' and subsequently, returned as 'no such persons', third time
returned as 'defendants 1 & 2 vacated 3 years ago'. As far as notice sent by
registered post with acknowledgment due through Court is concerned, the
same has been returned with endorsement as 'door locked and intimation
given'. In view of the same, the petitioner and 1st defendant were served by
effecting paper publication. Hence, the petitioner cannot say that no summons
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were sent to him and 1st defendant. Immediately after broke open and delivery
of possession was given to the respondent, the petitioner filed E.A.No.24 of
2014 in E.P.No.131 of 2011 on 22.02.2014 itself. The petitioner filed the
present I.A. to condone the delay only on 04.04.2016 and not explained the
delay with acceptable and valid reasons. If the impugned order is set aside,
the respondent will be put to irreparable loss and hardship and prejudice will
be caused to the respondent. The Court can exercise the discretion only when
the petitioner gives valid and acceptable reasons and his intention is bonafide.
The learned counsel appearing for the respondent further contended that the
petitioner has admitted in the cross examination that he is residing in the suit
property and in the property in the northern side of the suit property. The
tenants residing in the southern side of the suit property knows that petitioner
is in Bangalore. P.W.2 / P.K.Althap Ahamed knows him from his young age
and hence, the petitioner cannot say that P.W.2 or the tenants did not inform
the petitioner about the suit summons.
12.In support of his contention, the learned Senior Counsel relied on
the following judgments:
(i) 2005-2-L.W. 218 [Jayaprakash and another Vs. Kamala]:
“4.I have gone through the reasons stated in the affidavit filed
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in support of the petition, the objection raised by the
respondent/plaintiff, the evidence of P.W.1 and the impugned order
under challenge. It is seen from the evidence of P.W.1 that the
petitioners were aware of passing of the decree much prior to the
filing of the present application. After going through the reasons
stated in the affidavit and the evidence of P.W.1, I am satisfied that
the petitioners have not shown sufficient cause for condoning the
delay in preferring the petition to set aside the ex parte decree. As
rightly observed by the learned District Munsif, the ex parte decree
cannot be set aside in a casual manner more so, when sufficient cause
is not established by the party. Inasmuch as the Court below after
considering the claim of both parties and after finding that there is no
sufficient cause for condonation, dismissed the petition filed under
Section 5 of the Limitation Act, in the absence of any other material, I
do not find any error or infirmity or valid ground for interference;
hence the Revision fails and the same is dismissed. Connected C.M.P.
is also dismissed.”
(ii)2006-4-L.W.650 [M.Ramakrishnan V. Vinod Kumar Goyal]:
“15. The learned counsel for the revision petitioner is also
justified in contending that when the exparte decree was passed on
29.7.2002 itself, no petition to condone the delay was filed by the
respondent herein even though I.A.No.19988/2003 was filed by him
only on 9.9.200 3. Filing a condone delay petition under Sec.5 of the
Limitation Act is not an empty formality and when there is a delay,
the same has to be explained by the Applicant to the satisfaction of the
court.
16. Hence the order of the trial court on the face of it is
vitiated as it has failed to advert to the entire facts of the case and
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also has omitted to note that the delay was not at all explained by the
respondent.”
13.Heard the learned counsel appearing for the petitioner as well as the
learned Senior Counsel appearing for the respondent and perused the entire
materials on record.
14.The respondent filed O.S.No.101 of 2009 against the mother of the
petitioner as 1st defendant and petitioner as 2nd defendant, for specific
performance of agreement of sale dated 15.06.2006. On 24.08.2011, an
exparte decree was passed in favour of the respondent. The respondent filed
E.P.No.131 of 2011 and sale deed was executed in his favour, through Court
on 10.12.2012. The respondent filed E.A.No.71 of 2013 for break open of the
suit property and to deliver vacant possession to him. As per the order of the
Court, lock was broke open and possession was handed over to the
respondent on 22.02.2014. The petitioner, on 26.02.2014, filed E.A.No.28 of
2014, under Order XXI Rule 58 and Sections 42 & 151 of C.P.C. The
petitioner also filed I.A.No.68 of 2014 in O.S.No.101 of 2009 on 04.04.2014,
to condone the delay of 922 days in filing the petition to set aside the exparte
decree dated 24.08.2011. According to the petitioner, he and his mother / 1st
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C.R.P.(NPD).No.3167 of 2015
defendant were suffering from various illness and they left for Bangalore in
the year 2005 itself and were residing temporarily for taking treatment.
According to the petitioner, the suit summons were not issued to the
petitioner and his mother/1st defendant and they were not aware of
O.S.No.101 of 2009, filed by the respondent. The petitioner also made
averments alleging that he has good case on merits. The respondent filed
counter and denied the averments made by the petitioner. The petitioner
examined himself as P.W.1 and examined one P.K.Althap Ahamed as P.W.2.
The petitioner filed 5 documents viz., medical records of the petitioner,
medical records of the 1st defendant, Aadhaar card issued in Karnataka, ration
card issued by Karnataka Government and death certificate of the 1 st
defendant as Exs.P1 to P5. A perusal of these documents show that the
medical records are lab reports and prescription issued by Doctor between
2008 and 2011. The petitioner has not produced any documents to show that
the petitioner and his mother/1st defendant took treatment as in-patient and
that they have taken treatment till 22.02.2014. The petitioner has failed to
prove that he and his mother/1st defendant were in Bangalore from 2005-
2014, for treatment. The petitioner produced ration card and gas connection
issued in Bangalore. At the time of filing of Civil Revision Petition, the
learned counsel appearing for the petitioner produced various documents. The
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C.R.P.(NPD).No.3167 of 2015
contention of the petitioner that he is residing in Bangalore along with his
mother/1st defendant from 2005, till 2014 and they were not served suit
summons and they had no knowledge about the suit, is not acceptable for the
following reasons.
14(i). The petitioner has stated that he and his mother/1st defendant
were residing in Bangalore for treatment. He has not stated about the
residence of wife, whether she was in Ambur in his suit property or in
Bangalore, along with them. It is pertinent to note that wife of the petitioner
filed suit is O.S.No.152 of 2007 on the file of the District Munsif Court,
Ambur, against the respondent for permanent injunction. In the said suit, she
has stated that she is residing in the suit property mentioned in the present
suit and respondent is trying to interfere with her possession and enjoyment
of the suit property and also filed petition for injunction. The said suit was
dismissed on 06.03.2008. Subsequently, the 1st defendant filed O.S.No.10 of
2012 on the file of the Principal District Munsif Court, Ambur, against the
respondent for permanent injunction, restraining the respondent herein from
interfering with her peaceful possession and enjoyment of the suit property.
In the said suit also, the 1st defendant had given her address showing that she
is residing in the present suit property and respondent is interfering with her
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C.R.P.(NPD).No.3167 of 2015
possession for the past 4 to 5 months before filing of suit. Further, in the
cross-examination of P.W.1, he has stated that apart from the suit property, he
is having property on the northern side and southern side of the suit property.
He is residing in the suit property and the property in the northern side of the
suit property. He further stated that he has leased out the property on the
southern side of the suit property to the tenant. He also examined one
P.K.Althap Ahamed as P.W.2. The petitioner, as P.W.1, deposed that P.W.2 –
P.K.Althap Ahamed is residing at third house from the suit property. In cross-
examination, the petitioner admitted that he knew about the suits filed by his
wife and 1st defendant, against the respondent. The respondent filed two cases
against the petitioner for dishonour of cheques and Abdul Rahman, Advocate
conducted the case filed by his wife and 1st defendant / mother appeared on
behalf of the petitioner. He also stated that he cancelled the ration card issued
by the Tamil Nadu Government 5 to 6 years back, when he gave evidence in
2016. He also admitted that P.W.2 - P.K.Althap Ahamed gave document with
regard to possession handed over by the respondent. The admission made by
the petitioner in the cross-examination has to be considered along with
contention of the petitioner that suit summons were not issued to him. P.W.2
has stated that P.W.1/the petitioner used to come to Ambur once in a month
or twice in a month and stay in the suit property for few days. But he denied
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C.R.P.(NPD).No.3167 of 2015
any knowledge of suit summons sent to the petitioner and his mother. It is the
contention of the respondent that petitioner and 1st defendant refused to
receive suit summons.
14(ii). In view of such contradictory stand taken by the petitioner and
respondent, the documents relating to issue of summons were called-for from
the lower Court. From the records, it is seen that on three occasions, suit
summons and registered post were sent to the petitioner and 1st defendant.
The registered post was sent to the suit property address on 18.03.2010 and
was returned on 19.03.2010 with an endorsement stating “door locked and
intimation given”. Similarly, the endorsements were made in returned covers
subsequently when registered post was sent on 22.07.2010 and 08.02.2011.
From the records, it is seen that the suit summons were sent through Bailiff to
the petitioner and 1st defendant, on 30.07.2010 and Bailiff returned the
summons with endorsement “10 years prior to that date, settled at abroad”.
On 08.02.2011, the summons were returned by the Bailiff with endorsement
“no such person in the said address”. On 22.03.2011, the Bailiff returned the
suit summons with endorsement “the petitioner and 1st defendant vacated
three years before”. From the endorsement of the Bailiff and the postal
authority, it is clear that the suit summons through Bailiff and registered post
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C.R.P.(NPD).No.3167 of 2015
were sought to be served on the petitioner and 1st defendant on three
occasions and were returned unserved. It is admitted fact that the property on
the southern side of the suit property owned by the petitioner was leased out
to a tenant and P.W.2 – P.K.Althap Ahamed is residing in third house. It is
unbelievable that tenant was not aware of whereabouts of his landlord and
not informed about the attempts made by the Bailiff and postman to serve the
summons and registered post to the petitioner. Similarly, P.W.2 – P.K.Althap
Ahamed, who is residing only in the third house of the suit property was not
aware of the suit summons and registered post sought to be served on the
petitioner and 1st defendant. This Court takes note of the fact that immediately
when the lock was broke open and possession was handed over to the
respondent, the said P.K.Althap Ahamed/P.W.2 informed the petitioner about
the same. Taking note of this fact into account, the contention of the
petitioner that he came to know about the exparte decree only on 22.02.2014
is not believable and acceptable. Further, the petitioner has filed E.A.No.24
of 2014 on 26.02.2014 itself and filed the present I.A., only on 04.04.2014.
The petitioner has not produced alleged certified copies of plaint and exparte
decree obtained by him to substantiate his case. The reason given by the
petitioner for the delay from 22.02.2014 to 04.04.2014 is not valid and
acceptable.
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C.R.P.(NPD).No.3167 of 2015
15. Considering all the above materials in its entirety, this Court is of
the view that the petitioner has not given sufficient reason for condoning the
delay of 922 days. In the affidavit filed in support of the application to
condone the delay, the petitioner has given the address of the suit property
and has not given any Bangalore address. Only when the respondent pointed
out the same in the counter affidavit filed, the petitioner gave the Bangalore
address. The petitioner alleged to have entered into rental agreement with
landlord in Bangalore, but he has not produced the same. The contention of
the learned counsel appearing for the petitioner that the petitioner must be
given an opportunity to contest the suit on merits and substantial right of the
petitioner should not be shut down at the threshold, is not acceptable in the
facts and circumstances of the case. In the judgments relied on by the learned
counsel appearing for the petitioner itself, the Hon'ble Apex Court held that
condoning the delay is discretion of the Court and it has to be exercised
properly. The Hon'ble Apex Court, in paragraph no.7 of the judgment
reported in (2015) 15 SCC 659 referred to above, relied on by the learned
counsel appearing for the petitioner, held that it is the discretion of the Court
to condone the delay. The discretion has to be exercised like any other
judicial discretion with vigilance and circumspection. The discretion shall not
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be exercised in any arbitrary, vague or fanciful manner. The Hon'ble Apex
Court has held that true test is to see whether the applicant has acted with due
diligence. The Hon'ble Apex Court also held that only when there is no
inaction or bonafide on the part of the applicant, the delay has to be
condoned. In the order dated 19.06.2015 made in C.R.P.(PD).Nos.4004 and
4005 of 2014, this Court referred to the judgment of the Hon'ble Apex Court
reported in 2011 (4) SCC 363 (Lanka Venkateswarlu (dead) by Lrs, Vs.
State of Andhra Pradesh and others), wherein it has been held that justice
must be done to both the parties equally and then only ends of justice can be
achieved. In the present case, the petitioner has not acted diligently, as he
failed to take any action when it was brought to the notice that respondent is
interfering with the possession of the petitioner's wife and the 1st defendant in
the suit property in the years 2007 and 2011 respectively. It is well settled
that length of delay is not a criteria and reason given by the petitioner must be
sufficient and bonafide. The intention should not be malafide. In the present
case, the reason given by the petitioner is not sufficient and valid. The
petitioner has not acted in a bonafide manner. There is no straight jacket
formula for condoning or rejecting application for delay. Each case has to be
considered on the facts and circumstances of the case. The delay cannot be
condoned in a casual manner, especially when sufficient cause is not
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C.R.P.(NPD).No.3167 of 2015
established by the party. Filing a petition for condoning the delay under
Section 5 of the Limitation Act is not an empty formality and when there is
delay, the same has to be explained by the applicant to the satisfaction of the
Court. The two judgments relied on by the learned counsel appearing for the
respondent are squarely applicable to the facts of the present case. In view of
the above materials, the judgments relied on by the learned counsel appearing
for the petitioner do not advance the case of the petitioner and on the other
hand, to a larger extent, it supports the case of the respondent.
16. For the above reason, the Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous Petitions are closed. No costs.
27.10.2021
gsa/krk
Index : Yes / No
Internet : Yes / No
To
The Principal District Judge,
Vellore.
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C.R.P.(NPD).No.3167 of 2015
V.M.VELUMANI, J.
gsa/krk
C.R.P.(NPD).No.3167 of 2015
27.10.2021
https://www.mhc.tn.gov.in/judis
