Madras High Court
M.Kripanithi vs P.Anbumani on 22 March, 2022
CMA.No.1326/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.03.2022
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
CMA.No.1326/2017 and CMP.No.6875/2017
M.Kripanithi ... Applicant /
Petitioner / Plaintiff
Versus
1.P.Anbumani
2.V.Murugesan
3.V.Murugesan
4.N.Sankar
5.S.Utham Chand
6.D.Dhanapal
7.P.S.M.Ahamed Abdul Kadar ...
Respondents/Respondents/
Defendants
Prayer : - Civil Miscellaneous Appeal filed under under Order 43 Rule 1
of CPC, preferred this Memorandum of Civil Miscellaneous Appeal against
the fair and final order dated 13.08.2014 made in I.A.No.13231/2012 in
O.S.No.3180/2005 on the file of the learned III Additional Judge, City Civil
Court, Chennai.
1
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CMA.No.1326/2017
For Appellant : Mr.G.Ethirajulu
For R1 to R6 : No appearance
For R7 : Mr.V.Raghavachari
JUDGMENT
(1) The plaintiff in OS.No.3180/2005 which suit was pending on the file
of the learned III Additional Judge, City Civil Court, Chennai, is the
appellant herein.
(2) OS.No.3180/2005 had been filed by the plaintiff seeking specific
performance of 1/10th share with respect to the suit property
consequent to an Agreement of Sale dated 08.06.1995. The suit
property is land and building measuring 2 grounds and 1299 sq.ft., in
Mahalakshmi Street, T.Nagar, Chennai.
(3) The suit had been instituted against 7 defendants. The said suit,
unfortunately, did not proceed in its normal way and owing to various
reasons, when it was posted in the special list, owing to non
appearance of the plaintiff, had been dismissed for non prosecution on
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CMA.No.1326/2017
12.09.2007. The plaintiff then appears to have filed an Interlocutory
Application under Order 9 Rule 9 of CPC in SR.No.46167/2007 and a
perusal of the original records shows that it had been presented in the
office on 22.10.2007. This would indicate that the application had
been presented well after thirty days which is the time prescribed
within which an application under Order 9 Rule 9 of CPC should be
filed. Since it had been filed after expiry of thirty days, an application
to condone the delay under Section 5 of the Limitation Act should
have been filed. It was not filed. The fact that it was not filed and
that it was pre-requisite to file the application under Order 9 Rule 9 of
CPC was also not pointed out either by the Registry in the City Civil
Court or by the learned Judge who subsequently took it up for
consideration. This particular Interlocutory Application in
IA.SR.No.46167/2007 also did not proceed in a normal manner.
(4) The records reveal that it was returned for compliance, namely, to give
the correct date of the exparte order on 24.12.2012. It was
represented on the very same day and correction has been made in the
affidavit with respect to the date on which the suit was dismissed for
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CMA.No.1326/2017
non prosecution. The said correction in the affidavit had also not been
attested by the advocate who had attested the affidavit as required
under the Civil Rules of Practice. At any rate, the Interlocutory
Application was assigned a number as IA.No.13231/2012. That came
up for hearing for at least two years and finally, it was dismissed by
an order dated 13.08.2014. Questioning that particular order, the
present Appeal had been filed by the plaintiff.
(5) Heard Mr.G.Ethirajulu, learned counsel for the appellant and
Mr.V.Raghavachari, learned counsel appearing for the 7th respondent.
(6) In view of the fact that there was no clarity with respect to the actual
date on which the Interlocutory Application under Order 9 Rule 9 of
CPC has been presented before the City Civil Court, both the learned
counsels had stated that it would only be appropriate that this Court
examines the original records and I should be grateful for that
particular suggestion given by the learned counsels and accordingly,
the original records were summoned.
(7) A perusal of the same would show that though the affidavit and
petition, which are both dated 19.09.2007, had been presented in the
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CMA.No.1326/2017
City Civil Court only on 22.10.2007. It was returned only on
24.08.2012 and it was represented on the same day. A further aspect
which now comes to the notice of this Court is that it was returned for
giving the correct date on which the suit was dismissed for non
prosecution and the date had been corrected in the affidavit, but the
said correction had not been attested or verified. The Rules of
Practice states that any correction in an affidavit should be attested by
the Advocate, who attested the affidavit when it was originally filed.
This would also indicate that the correction carried out in the affidavit
with respect to the date itself was improper.
(8) At any rate, this fact was not noticed by the learned III Additional
Judge, City Civil Court, Chennai. In the course of the order, the
learned Judge had, in paragraph No.3, stated that the petition and the
affidavit had been filed on 19.09.2007. But, later had also observed
that it was presented only on 22.10.2007 and also observed that it
had been presented after the period of limitation and the actual word
used by the learned Judge was '' fhyjhkjkhf ''. Thereafter, in the
order now questioned in this appeal, the learned III Additional Judge,
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CMA.No.1326/2017
City Civil Court, Chennai, has again observed that the application was
presented before the Registry only on 22.10.2007 and it also noticed
the seal of the Registry bearing that particular date and had finally
dismissed the application stating that it was not maintainable.
(9) Mr.G.Ethirajulu, learned counsel for the appellant had stated that the
appellant cannot be faulted for the manner in which the Interlocutory
Application stuttered in its progress since it has been filed on
22.10.2007 and if on that particular day, there had been a delay
apparent on the face of the record, then the Registry in the City Civil
Court, should have returned the application and should have put the
appellant on notice, that there was a delay and that an application
seeking condonation of delay should have been filed.
(10) It was also seen that the application which had been filed on
22.10.2007, was actually considered by the Registry or by the Court
official only on 24.08.2012, nearly about five years later.
(11) When the application was presented before the Registry on
22.10.2007, the counsel or the appellant cannot plead ignorance of a
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CMA.No.1326/2017
basic principle of law that it had been presented after thirty days after
the dismissal of the suit and therefore, an application to condone the
delay should have been filed. The Registry in the City Civil Court had
kept it pending in their office for about five years and thereafter, made
a cursory return stating that the date of dismissal of the suit had not
been correctly mentioned. That date had been corrected without the
correction being attested by the Advocate who had attested the
affidavit and therefore, there is a violation of the rules as prescribed
under the Civil Rules of Practice.
(12) An order had been finally passed stating that the application is not
maintainable. But in the order, the learned Judge should have stated
that the application is not maintainable owing to the fact that it should
have been accompanied by another application to condone the delay
in filing the said application. To that limited extent alone, let me
interfere with the order passed and set aside the same.
(13) But, this does not mean that the application is allowed. The order
passed in non est only because the learned Judge should have been
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CMA.No.1326/2017
insisted that an application under Section 5 of Limitation Act should
have been filed and overlooking that particular basic fact, passing an
order in the application under Order 9 Rule 9 of CPC either
dismissing it or allowing it would render the order non est and will
necessarily have to be interfered with by this Court.
(14) Let the appellant now file an application seeking to condone the delay
in filing an application to set aside the dismissal of the suit for non
prosecution dated 12.09.2007. If there had been any intervening
holidays, the learned counsel for the appellant can take advantage of
the same. If such application is filed, let it be decided on merits and
thereafter, let IA.SR.No.46167/2007 which had been assigned
IA.No.13231/2012 be examined. The order is set aside as being non
est and the Civil Miscellaneous Appeal is allowed. But, this does not
give any vested right to the appellant herein. The suit will remain
dismissed for non prosecution. It is for the appellant to work out his
remedy in manner known to law, first by filing an application under
Section 5 of the Limitation Act. No costs. Consequently, connected
miscellaneous petition is closed.
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CMA.No.1326/2017
22.03.2022
AP
Internet : Yes
To
1.The III Additional Judge,
City Civil Court, Chennai.
2.The Section Officer
VR Records, High Court
Madras.
C.V.KARTHIKEYAN, J.,
AP
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CMA.No.1326/2017
CMA.No.1326/2017
22.03.2022
https://www.mhc.tn.gov.in/judis
