Madras High Court
Chelladurai vs R. Subramanian on 24 April, 2023
CRP.No.1586 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.04.2023
CORAM :
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
CRP.No. 1586 of 2020
and
CMP.No. 9668 of 2020
Chelladurai ... Petitioner
Versus
R. Subramanian
Represented by its Power Agent
Ramamurthy ... Respondent
Civil Revision Petition filed under Article 227 of the Constitution of
India, prays to set aside the fair and decretal order dated 03.12.2019 passed
in I.A.No. 525 of 2017 in O.S.No. 243 of 2007 on the file of Principal
Subordinate Judge, Chengalpattu.
For petitioner : Mr.K. Elango
For Respondent : Mr. R. Thiyagarajan
for Mr.K.M. Subramanian
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1/18
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CRP.No.1586 of 2020
ORDER
The first defendant in O.S.No. 243 of 2007 is the revision petitioner.
He has filed the present Civil Revision Petition against the order dated
03.12.2019 passed in I.A.No.525 of 2017 in O.S.No.243 of 2007 on the file
of Principal Subordinate Judge, Chengalpattu.
2. The I.A.No. 525 of 2017 has been filed by the revision
petitioner under Section 5 of the Limitation Act, praying to condone the
delay of 3376 days in filing the application to set aside the ex-parte decree
dated 08.08.2008.
3. The suit in O.S.No.243 of 2007 was filed for declaration to
declare that the plaintiff is the owner of the suit property and for
consequential permanent injunction restraining the defendant from in any
manner interfering with the plaintiff's peaceful possession and enjoyment of
the suit property by the plaintiff.
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CRP.No.1586 of 2020
4. The suit was filed on 06.08.2007. In the suit, notice was served
to the revision petitioner/first defendant. However, the notice could not be
served and it was returned unserved. Therefore, paper publication was
effected as substituted service and thereafter, Ex.A1 to Ex.A6 were marked
on behalf of the plaintiff. The plaintiff also examined one Ramaswamy Iyer
as PW1 and thereafter on 08.08.2008 ex-parte decree was passed by the trial
Court.
5. On 06.12.2017, the revision petitioner/first defendant has filed
the instant application under Section 5 of the Limitation Act. According to
the first defendant, in the affidavit filed in support of the application in
I.A.No. 525 of 2017, among other things, it was stated that the first
defendant has purchased the suit property by a registered sale deed dated
12.11.2004 executed by the second defendant and he has also obtained
patta. However, he shifted his residence from Chennai to Namakkal and
residing along with his family members. While so, recently, he came to
know about the sale in favour of the plaintiff by M/s. Assure Constructions
and the suit was filed by the plaintiff before the Court below. It is the
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CRP.No.1586 of 2020
specific contention that he was residing only at Namakkal and wantonly the
plaintiff had shown his address at Chennai and served the notice in the suit,
knowing fully well that he is not residing there. Therefore, it is specifically
pleaded that he must be given an opportunity to contest the suit. The ex-
parte decree has been passed without serving notice to enable him to defend
the suit. The suit is vexatious and by virtue of the ex-parte decree passed in
the suit, his substantial property right has been lost. Therefore, he has filed
the instant application.
6. A counter affidavit has been filed by the plaintiff in the
application in I.A. No. 525 of 2017 specifically stating that the revision
petitioner/first defendant had executed Power of Attorney in favour of one
Sivakumar. The said Sivakumar in turn sold the property to M/s. Assure
Constructions on 14.06.2010. Subsequently, M/s.Assure Construction sold
the suit property along with several others parcels of land in favour of the
plaintiff and others. In fact, in connection with the sale one of the plots
bearing plot number 20 belonging a suit in O.S.No.221 of 2011 was filed by
M/s. Assure Construction. In O.S. No. 221 of 2011, the revision
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CRP.No.1586 of 2020
petitioner/first defendant was a party and he has filed his written statement
in that suit. In O.S. No. 221 of 2011 reference was made to the instant suit
in O.S. No. 243 of 2007 and therefore, the revision petitioner/first defendant
cannot feign ignorance about the filing of the instant suit. In any event,
when the revision petitioner/first defendant had executed Power of Attorney
Deed in favour of one Sivakumar, he ought to have been diligent in
contacting his Power Agent about the acts done by his Power Agent.
However, the revision petitioner/first defendant simply stated that he was
not at all in touch with the Power Agent and he was not aware that his
Power Agent sold the properties to M/s. Assure Construction. Therefore, it
was submitted that the revision petitioner/defendant had knowledge about
the filing of the present suit and the ex-parte decree passed on 08.08.2008.
The revision petitioner had gone into the deep slumber and had suddenly
woken up and filed the instant application. According to the plaintiff, much
water has flown under the bridge and at this stage, the application filed by
the revision petitioner/first defendant need not be entertained. It is also
submitted that the reasons stated in the petition filed by the revision
petitioner/first defendant for condonation of delay is false. When the
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CRP.No.1586 of 2020
revision petitioner/first defendant had knowledge about the pendency of the
suit, his statement in the present application is not only false but misleading.
Therefore, the plaintiff prayed for dismissal of the application.
7. The trial Court has allowed the parties to let in evidence in
I.A.No.525 of 2017. The revision petitioner/first defendant examined
himself as PW1 and marked Ex.P1 to Ex.P3. The respondent did not
examine any witness or mark any documents. On consideration of the oral
and documentary evidence, the trial Court refused to accept the theory that
the revision petitioner/first defendant has no knowledge about the pendency
of the present suit. The trial Court referred to the written statement filed by
the revision petitioner in the suit in O.S.No.221 of 2011. In the written
statement the revision petitioner/1st defendant referred to the instant suit and
therefore, the trial Court refused to accept the plea of the revision petitioner
herein. The trial Court has also pointed out that it is unbelievable to hear
from the revision petitioner to state that he has not contacted his power
agent at all for a long time and he has no knowledge about the alienation of
his property by his agent. Therefore also the trial Court refused to condone
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CRP.No.1586 of 2020
the delay and dismissed the application.
8. The learned counsel for the revision petitioner placed reliance
on several decisions to contend that an application under Section 5 of the
Limitation Act, has to be considered liberally. He would submit that while
considering an application under Section 5 of the Limitation Act, the Court
need not adopt straight jacket formula to oust a litigant from defending the
proceedings before the Court. He has also submitted that length of delay is
not a criteria but the reasons for the delay has to be weighed by the Court
while dealing with the application under Section 5 of the Limitation Act.
For this purpose several decisions have been relied on by the counsel for the
petitioner namely (i) Sarasu v. Ravi, reported in 2016 (5) CTC 117 (ii) N.
Balakrishnan v. M.Krishnamurthy reported in 1998 (II) CTC 533 (iii) C.
Subramaniam v. Tamil Nadu Housing Board, represented by its
Chairman and Managing Director reported in 2000 (III) CTC 727 (iv)
G.P. Srivatasava v. R.K. Raizada & Ors., reported in 2000 (II) CTC 27
(v) N.P. Srinivasan v. S.Santhalakshmi reported in 2013 (3) CTC 220 (vi)
C.K. Lokesh v. P.E. Panduranga Naidu reported in 1997-2-LW.645 (vii)
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Maniben Devraj Shah v. Municipal Corporation of Brihan, Mumbai,
reported in (2012) 5 SCC 137 (viii) Lanka Venkateswarlu (dead) by LRs
v. State of Andhra Pradesh and Ors, reported in (2011) 4 SCC 363 (ix)
B. Hashim v. S. Abitha reported in 2016 (3) MWN (Civil) 501 (x) and
Mahaboob Bee and Ors v. Amina Bee (died) and another reported in
2017 (1) MWN (Civil) 626.
9. By pointing out the above decisions, the learned Counsel for
the revision petitioner only prayed that an opportunity ought to have been
given by the trial court to the revision petitioner to contest the suit on
merits. However, an ex-parte decree is sought to be put against the revision
petitioner/first defendant without giving adequate opportunity to defend the
suit. The reasons pointed out by the trial Court that the revision petitioner
had knowledge about the suit is a matter to be considered only during the
course of trial and not at the time of considering the application for
condoning the delay. The defence of the revision petitioner in the suit has to
be considered and the suit has to be adjudicated on merits without shutting
the doors of justice. Therefore, the learned counsel for the revision
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CRP.No.1586 of 2020
petitioner/1st defendant submits that the revision petitioner has to be given
one more opportunity to contest the suit on merits and he prayed for
allowing the Civil Revision Petition.
10. Per contra, the learned counsel for the respondent has taken this
Court to the order passed by the trial Court and submitted that the reasons
assigned by the revision petitioner for condonation of the delay are not only
ipsi dixit but also false. There was a suit filed by M/s. Assure Construction
in which the revision petitioner has filed his written statement. In the
written statement, a clear reference has been made about the filing of the
present suit. When the revision petitioner was examined as PW1 a specific
question was posed to him as to whether he has intimated the postal
department about the change of his address to Namakkal. However, the
answer is an emphatic "no". Further, to a specific question posted to the
revision petitioner as to whether he questioned his Power Agent Sivakumar
for having alienated the property covered under the said Power of Attorney
Deed, he has simply stated that he did not contact his Power Agent from
2016 until 2017. On the basis of the above, the trial Court has specifically
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held that a normal prudent person who had executed a Power of Attorney
Deed cannot be expected to remain silent without ascertaining from his
Agent about the status of the property covered under the Power of Attorney
Deed. Therefore, the trial Court has rightly held that the reasons assigned
by the revision petitioner/first defendant for condoning the delay are not
only satisfactory but they are contrary to the facts pleaded in the application
filed under Section 5 of the Limitation Act. He has also placed reliance on
the decisions of this Court in the case of United India Insurance
Company v. Praveena Paul and others, reported in (1993) 2 MLJ 174,
dated 17.11.1992, wherein, in Paragraph No.6, it was held by the Division
Bench of this Court as follows:-
In the instant case, the judgment was delivered by
the tribunal on 04.12.1991. The application for
obtaining the judgment and decree was made on
15.12.1991. There was delay of 11 days in making the
application. It is seen that the copies were made ready
on 16.03.1992. The appeal was filed on 23.10.1992.
There is a delay of 131 days in filing the appeal. Even
though the certified copies of judgment and decree were
received on 16.03.1992, what all is stated in the affidavit
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in support of the petition is that the certified copies of
judgment and decree were sent to the Regional Office at
Madras for scrutiny by the legal department to decide on
the question of advisability of filing an appeal. The
Managers concerned who had take a decision in the
matter and advise the Divisional Office were not readily
available as they were deputed to attend to certain policy
matters of importance. Lastly it is stated that in
Government undertaking like the petitioner, the
administrative delay cannot be avoided for more reasons
than one. In our view this is not a sufficient cause for
condoning the delay. The petitioner has not chosen to
give any sufficient cause for the delay of 131 days. The
averment that the administrative delay cannot be
avoided in Government undertaking for more reasons
than one cannot be accepted and it is not a valid reason
to condone the delay. The petitioner has failed to come
forward as to how the delay has occurred. He must give
fuller details with dates as to when the papers were sent
to the Regional Office, when the managers concerned
were deputed to attend policy matters of importance,
when they advised the petitioner to file appeal and why
such delay has occurred. The affidavit is bereft of
details. It is well established that every day's delay has
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to be explained properly and there must be reasonable
and acceptable explanation for the delay. In this case
except the averment that the administrative delay cannot
be avoided, there is no acceptable reason for the delay
with all particulars. We are not happy with the reasoning
given in para 5 of the affidavit wherein it is stated, "I
most respectfully submit in a Government Undertaking
like the petitioner administrative delay cannot be
avoided for more reasons than one. "This is not a valid
and proper explanation for the delay. The Government
undertaking cannot be equated with the Government and
they are expected to give details with regard to the
delay. We cannot condone the delay if it is simply
stated, "administrative delay". Hence, we are of the
view that this is a case where the petitioner has not
satisfactorily explained the delay, which is inordinate, in
filing the appeal. Accordingly, the petition is dismissed.
11. By pointing out the above decisions, the learned counsel for the
respondent prayed for dismissal of the revision petition.
`
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CRP.No.1586 of 2020
12. Heard both sides and perused the materials placed on record.
13. This is an application filed under Section 5 of the Limitation
Act, to condone the delay of 3376 days in filing the application to set aside
the exparte decree dated 08.08.2008. The revision petitioner is the 1st
defendant in the instant suit in O.S.No. 243 of 2007. The
respondent/plaintiff has filed the suit for a declaration and for consequential
permanent injunction. According to the respondent/plaintiff, he purchased
the suit property from his vendor M/s. Assure Constructions. His vendor
M/s. Assure Constructions purchased the property from one Sivakumar,
Power Agent of the revision petitioner/first defendant. The suit came to be
filed since some third persons have attempted to interfere with the property
of the plaintiff. Since the suit property is a vacant land the plaintiff filed the
suit for declaration and consequential permanent injunction.
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14. In the suit, notice was sent to the revision petitioner/1st
defendant, but it could not be served. Therefore, after effecting paper
publication and recording the exparte decree evidence of the plaintiff, the
revision petitioner/1st defendant was set exparte on 08.08.2008. After 11
years the instant application in I.A.No.525 of 2017 was filed by the revision
petitioner/1st defendant on two grounds.
15. The first ground is that he was not served with any notice in the
suit and he had shifted his residence from Chennai to Namakkal and
therefore, he cannot be expected to contest the present suit.
16. In I.A. No. 525 of 2017 the revision petitioner examined
himself as PW1 and marked three documents. During the course of his
cross examination he was specifically asked as to whether he has informed
the postal department about his shifting of his residence, for which his
answer was "No". When the revision petitioner/first defendant shifted his
residence from Chennai to Namakkal, he ought to have been prudent to
intimate the postal department about shifting of the residence so that any
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letters or communication that may be addressed to the plaintiff could be re-
directed to the new address. When the revision petitioner did not give any
such intimation, he cannot shift the blame for non-service of notice in the
suit.
17. Notwithstanding the above, the plaintiff admittedly has given a
Power of Attorney Deed in favour of one Sivakumar way back in 2006.
The said Sivakumar has sold the property to M/s. Assure Constructions.
The plaintiff has purchased one of the pieces of property from M/s. Assure
Constructions. When the revision petitioner/1st defendant was confronted
as to whether he enquired his Power Agent as to the status of the lands
covered under the Power of Attorney deed, he has simply stated that he did
not contact his Power Agent. Therefore, the trial court has taken an adverse
inference by concluding that no prudent person could remain without
contacting his Power Agent with whom a valuable property was parted with
for sale.
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18. Yet another circumstances which writ larg against the case of
the revision petitioner is that M/s. Assure Constructions has filed a suit as
against the revision petitioner himself. In the suit, the revision petitioner has
filed a written statement referring to the present suit filed by the plaintiff.
However, he has not taken any steps to ascertain as to what has happened to
the suit filed against him. While so, the averments made by the revision
petitioner in I.A. No. 525 of 2017 as if he was not aware of the instant suit
cannot be accepted. The averment that he was not served any notice and he
must be given to opportunity to defend the suit after 11 years of passing
exparte decree cannot also be accepted. It is no doubt true that while
considering the application under Section 5 of the Limitation Act, the Court
cannot must be liberal, but the theory of liberal approach cannot be invoked
in the present case. In this case, the revision petitioner had exhibited
absolute slackness in defending the suit. At least, when he filed written
statement in the subsequent suit in O.S.No. 221 of 2011 the revision
petitioner ought to have filed the present application for condoning the
delay. Under such circumstances, this Court feels that this is not a fit case
to exercise the powers conferred under Section 5 of the Limitation Act, to
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condone the enormous delay in filing the application to set aside the ex-
parte decree. This Court has also to take note of the plight and the prejudice
that may be caused to the plaintiff in the event of the application for
condonation of the delay being allowed.
19. For all the above reasons, the order dated 03.12.2019 passed in
I.A.No. 525 of 2017 in O.S.No. 243 of 2007 on the file of Principal
Subordinate Judge, Chengalpattu is confirmed. The Civil Revision Petition
fails and it is dismissed. No costs. Consequently, connected Miscellaneous
Petition is closed.
24.04.2023
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
MSM
To
1. The Principal Subordinate Judge, Chengalpattu.
2. The Section Officer, High Court, Madras.
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CRP.No.1586 of 2020
V.BHAVANI SUBBAROYAN, J.
msm
CRP.No. 1586 of 2020
24.04.2023
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