Madras High Court
Appojiappa vs Rathnamma on 2 December, 2022
C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.R.P.No.927 of 2021
and
C.M.P.No.7517 of 2021
Appojiappa ... Petitioner
..Vs..
1. Rathnamma
2. Subramani
3. Anandkumar ... Respondents
PRAYER : Civil Revision Petition filed under Section 115 CPC against
the fair and decreetal order dated 05.02.2021 made in I.A. No.1 of 2020 in
I.A. No.728 of 2017 in O.S. No.11 of 2017 on the file of the Principal
Subordinate Court, Hosur.
For Petitioner : Mr. R. Sagadevan
For Respondents : Mr.R. Jayaprakash
ORDER
The present Civil Revision Petitions is filed against the fair and
decreetal orders dated 05.02.2021 made in I.A. No.1 of 2020 in I.A.
No.728 of 2017 in O.S. No.11 of 2017 on the file of the Principal
Subordinate Court, Hosur.
https://www.mhc.tn.gov.in/judis
C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
2. The revision petitioner is the 1st defendant in O.S.No.11 of
2017 on the file of the Principal Subordinate Court, Hosur. The
respondents/plaintiffs filed the suit for partition and for costs. The suit
was decreed on 16.03.2017 in favour of the plaintiffs. Thereafter, the
plaintiffs filed an application in I.A.No.728 of 2017 for passing of final
decree. The revision petitioner/1st defendant entered appearance through
a counsel. However, he did not file any counter in the final decree
proceedings and therefore he was set ex parte on 12.03.2019 and an
Advocate Commissioner was appointed to inspect the suit properties and
to allot specific shares to the parties concerned. Accordingly, the
Advocate Commissioner visited the suit properties and filed her report
and plan, based on which the final decree for partition was passed on
19.02.2020.
3. Thereafter, the present revision petitioner filed an application
in I.A.No.1/2020 in I.A. No.728/2017 in O.S. No.11/2017 under Section 5
of the Limitation Act to condone the delay of 155 days in filing the
application to set aside the ex parte final decree passed on 19.02.2020.
The respondents/plaintiffs filed a counter and after considering oral and
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
documentary evidence adduced on both sides, the learned Principal
Subordinate Judge, Hosur, dismissed the said application on 05.02.2021
by observing thus:
5. It is the specific case of the petitioner that he is
76 years old man and due to his ill health he was unable to
instruct his counsel to file counter in I.A. No.728/2017. Now
only the petitioner came to know about the ex parte final
decree passed in I.A. No.728/2017 on 19.02.2020. Hence,
the present petition has been filed to condone the delay in
filing petition to set aside the ex parte final decree. On the
other hand, the respondents would contend that summons
and notice have been served to the petitioners in each and
every proceeding. But, even after receipt of the summons
and notice the petitioner has not turned up. Hence, he was
set ex parte in the suit and final decree proceedings. Hence,
the present petition is liable to be dismissed.
6. To substantiate the case of the petitioner, the
petitioner has produced Ex.P1 discharge summary and a go
through of it reveals that the petitioner was admitted in Sri
Chandrasekara Hospital on 16.04.2020 and he was
discharged on 18.04.2020. Ex.P2 is the registration slip of
Nimhans Hospital dated 26.06.2020 and a perusal of above
https://www.mhc.tn.gov.in/judis it could be seen that the petitioner has taken general check
C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
up in the Nimhans Hospital on 26.06.2020. Ac careful
perusal of the records it could be seen that the final decree
petition in I.A. No.728/2017 was filed on 16.08.2017 and
notice has been served to the petitioner herein and he has
engaged a counsel to appear on behalf of him. However, he
has not filed any counter to the petition in spite of sufficient
opportunities given to him. Hence, the petitioner was set ex
parte on 12.03.2019. Subsequently, advocate Mrs.
B.Vahitha was appointed as Advocate Commissioner and
she has filed report and plan. After hearing the respondents
final decree has been passed on 19.02.2020.
7. The petitioner herein has produced Ex.P1 and
Ex.P2 medical certificates and a go through of it discloses
that the petitioner has taken treatment for his ailment after
15.04.2020 that too two months after passing the final
decree. It is pertinent to note that the petitioner has not
produced any documents to show his prolonged illness.
Therefore, this Court is of the view that the petitioner has
not produced sufficient material to show his illness.
Moreover, the age of the petitioner is not a criterion to
decide the merits of this petition.
8. The respondents would contend that there are
no sufficient causes to allow the present petition and there is
an inordinate delay in filing petition to set aside the ex parte
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
final decree and it was not explained by the petitioner.
Hence, the present petition is liable to be dismissed. As
discussed above, the petitioner has not produced documents
to show his ailment prior to the final decree that has been
passed on 19.02.2020.
9. Considering the submissions made by both the
parties this Court wants to rely upon the judgments reported
in Oriental Aroma Chemical Industries Ltd, v. Gujarat
Industrial Development Corporation and Another (2010) 2
Supreme 115:LNIND 2010 SC 205: (2010) 4 MLJ 141 and
an excerpt from it would run thus:
"The law of limitation is found 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 prescribed 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. The
expression "sufficient cause" employed in Section 5 of the
Indian Limitation Act, 1963 and other similar statues is
elastic enough to enable the Courts to apply the law in a
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
meaningful manner which sub serves the ends of justice.
Although, no hard and fast rule can be laid down in
dealing with the applications for condonation of delay, this
Court has justifiably advocated adoption of a liberal
approach in condoning the delay of short duration and a
stricter approach where the delay is inordinate"
10. Applying the above said principle to the
present case on hand, the delay in the present petition for
presentation of petition under Order IX Rule 13 CPC is 155
days. Therefore, there is an inordinate delay in filing
application under Order IX Rule 13 CPC. Thus, the
applicants must satisfy the court that they have sufficient
cause for not making application within the prescribed
time."
4. Aggrieved over the same, the present Petition is filed by the
revision petitioner/1st defendant.
5. Heard Mr. R. Sagadevan, learned counsel appearing for the
revision petitioner and Mr.R. Jayaprakash, learned counsel appearing for
the respondents.
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
6. Mr. R. Sagadevan, learned counsel appearing for the revision
petitioner would contend that the property, which the revision petitioner
is already in possession should be allotted to his share and for this limited
purpose the present Civil Revision Petition may be allowed.
7. Per contra, Mr.R. Jayaprakash, learned counsel appearing
for the respondents drew the attention of this court to the counter filed by
the plaintiffs in which it has been specifically contended that at the time
when the advocate commissioner visited the property on 22.06.2019 the
revision petitioner was also present and signed on the spot notice and that
the properties were allotted to the plaintiffs and the defendants in his
presence by the learned advocate commissioner. He also contended that
the trial court had rightly held that the revision petitioner has not shown
sufficient cause for condoning the delay of 155 days in filing the
application to set aside the ex parte final decree passed on 19.02.2020.
He relied on the decision in Brahampal Alias Sammay and another vs.
National Insurance Company reported in (2021) 6 SCC 512 and
contended that the words 'sufficient cause for not making the application
within the period of limitation' should be understood and applied in a
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and C.M.P.No.7517 of 2021
reasonable, pragmatic, practical and liberal manner, depending upon the
facts and circumstances of the case and the type of case. He would also
contend that law of limitation is a substantive law and has definite
consequences on the right and obligation of a party to arise and these
principles should be adhered and applied appropriately depending on the
facts and circumstances of the case. It is his specific contention that once
the valuable right accrued in favour of one party as a result of the failure
of the other party, it will be unreasonable to take away that right on the
mere asking of the applicant especially when the delay is directly a result
of negligence, default or inaction of that party. It is also his contention
that final decree, in the instant case, was passed on 19.02.2020 and a
specific share was allotted to the plaintiffs and they are in possession of
the same and the same cannot be upset at the instance of the revision
petitioner.
8. A perusal of the records shows that in the final decree
proceedings in I.A. No.728/2017, the present revision petitioner was
served with notice and he entered appearance through a counsel also.
However, he did not file any counter and ultimately he was set ex parte
and one Mrs. B. Vahitha, advocate, was appointed as an advocate
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and C.M.P.No.7517 of 2021
commissioner to inspect the suit properties and to divide the same in
accordance with the preliminary decree passed by the trial court.
Accordingly Mrs. B. Vahitha, the learned advocate commissioner visited
the suit properties in the presence of the counsels for the plaintiffs and the
defendants including the present revision petitioner and divided the suit
properties as per the preliminary decree. It is seen that the 1 st defendant
did not raise any objection to the advocate commissioner's report. After
passing of final decree in I.A.No.728/2017, he filed an application to set
aside the ex parte decree passed against him along with the petition under
Section 5 of Limitation Act to condone the delay of 155 days in filing the
application to set aside the ex parte final decree passed on 19.02.2020.
9. The specific contention of the learned counsel for the
revision petitioner is that the revision petitioner is aged 76 years and was
taking treatment in Sri Chandrasekara Hospital, Hosur, between
16.04.2020 and 18.04.2020. In order to substantiate the same, the
revision petitioner had filed a discharge summary(Ex.P1) before the trial
court apart from marking a registration slip issued by Nimhans Hospital,
Bangalore dated 26.06.2020 as Ex.P2. However, the final decree
application was filed in the year 2017 and the revision petitioner was
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
served with notice in the said application. As already observed, he had
engaged a counsel to appear on his behalf. Ex.P1 and Ex.P2 medical
reports do not support the case of the revision petitioner and as rightly
observed out by the trial court, the revision petitioner has not adduced
sufficient materials to show that he was unable to meet his counsel on
account of his illness. Merely because the revision petitioner is aged 76
years, he cannot be shown any lenience especially when he was very
much present at the time when the advocate commissioner visited the suit
properties. He had also signed on the spot notice as is seen from the
records. Moreover, the final decree was passed on 19.02.2020 allotting
a specific share to the plaintiffs. The Revision petitioner has not
mentioned the survey number of the property in which he is in possession
and the petition is also bereft of these particulars. Even now the counsel
for the revision petitioner is not able to state the survey number of the
property which the revision petitioner wants to be allotted to his share and
in the facts and circumstances, I do not find any infirmity in the orders
passed by the trial court and accordingly, the Civil Revision Petition is
liable to be dismissed.
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
10. In the result,
i. the Civil Revision Petition is dismissed. No costs. Consequently
connected miscellaneous petition is also dismissed.
ii. the fair and decreetal orders dated 05.02.2021 made in I.A. No.1 of
2020 in I.A. No.728 of 2017 in O.S. No.11 of 2017 on the file of
the Principal Subordinate Court, Hosur, is upheld.
02.12.2022
Index : Yes/No
Internet : Yes/No
bga
To
1. The Principal Subordinate Judge, Hosur,
2. The Section Officer, V.R. Section, High Court, Madras.
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C.R.P.No.927 of 2021
and C.M.P.No.7517 of 2021
R. HEMALATHA, J.
bga
C.R.P.No.927 of 2021
and
C.M.P.No.7517 of 2021
02.12.2022
https://www.mhc.tn.gov.in/judis
