Madras High Court
Lingeswaran vs Thirunagalingam on 25 April, 2023
C.R.P(MD)No.1113 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD).No.1113 of 2023
and
CMP(MD)No.5363 of 2023
1.Lingeswaran
2.Tamilarasi ... Petitioners/Petitioners/Appellant
Vs.
Thirunagalingam ... Respondent/Respondent/Respondent
PRAYER:- This Civil Revision Petition has been filed under Article 115
of the Constitution of India, to allow the Civil Revision Petition and set
aside the fair and decreetal order dated 08.02.2023 made in I.A.No.1 of
2022 in UN Numbered A.S.No...... of 2022 on the file of Principal
District and Sessions Judge, Ramanathapuram.
For Petitioners : Mr.PT.S.Narendravasan
For Respondent : Mr.S.Srinivasa Raghavan
ORDER
This petition has been filed to set aside the fair and decreetal order
dated 08.02.2023, made in I.A.No.1 of 2022 in unumbered A.S.No......
of 2022 on the file of Principal District and Sessions Judge,
Ramanathapuram.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
2.The learned Principal District and Sessions Judge,
Ramanathapuram, has dismissed the application filed by the petitioners
by the impugned order dated 08.02.2023 with the following
observations:-
“19.On perusal of the averments contend in the
present petition seeking for condone of delay on 1116
days, it reveals that the petitioners have assigned the
same reason to condone the delay as averred in I.A.Nos.
462/2018 and 119/2019 which was already dismissed by
this Court.
20.Though the learned counsel for the petitioners
relied upon three judgments cited supra however the facts
and circumstances of the case in hand, and the facts and
circumstances of the cases referred by the learned
Counsel for the petitioners are different and hence those
judgments will not improve the case of the petitioner.”
3.The petitioners are the defendants in O.S.No.110 of 2015 before
the Sub Court, Paramakudi. The said suit was filed by the respondent for
specific performance based on the sale agreement dated 17.08.2015,
entered between the first petitioner and the respondent. Since the first
petitioner failed to execute the sale deed pursuant to the sale agreement
dated 17.08.2015, the respondent herein filed the said suit before the Sub
Court, Paramakudi, on 22.09.2015.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
4.During the pendency of the said suit, even before the suit
summons were issued by the Court, the first petitioner executed a sale
deed in favour of the second petitioner on 26.11.2015. Thereafter, the
petitioners herein also entered appearance and filed their written
statement. The respondent witness (P.W.1) was also examined. However,
the petitioners failed to cross-examine the respondent witness.
5.Under these circumstances, both the petitioners were set
ex-parte on 07.02.2017. On the same day, the suit in O.S.No.110 of 2015
was also decreed by the Sub Court, Paramakudi. Pursuant to the ex-parte
decree passed on 07.02.2017, the respondent also filed E.P.No.10 of
2017 and it was allowed and the sale deed was also executed in favour of
the respondent.
6.It appears that on the date of the sale agreement dated
17.08.2015, the first petitioner had received a sum of Rs.40,000/- and
thus, the respondent was allowed to pay the differential amount of
Rs.2,60,000/- apart from the requisite stamp duty for registering the sale
deed. The sale deed was also executed by the Court in favour of the
respondent.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
7.The second petitioner/2nd defendant herein had filed I.A.No.462
of 2018 and first petitioner/1st defendant had filed I.A.No.119 of 2019 for
condoning the delay of 462 days and 712 days in setting aside the ex-
parte order passed in O.S.No.110 of 2015, dated 07.02.2017.
8.The learned Sub Judge, Paramakudi, has allowed both the
applications filed by the petitioners herein by order dated 19.08.2019.
Therefore, the respondent has filed CRP(MD)Nos.1688 & 1689 of 2019
before this Court, which were allowed by this Court, vide order dated
09.11.2021.
9.Aggrieved by the same, the petitioners had also preferred
S.L.P.Nos.2054 & 2055 of 2022 before the Hon'ble Supreme Court. The
said Special Leave Petitions came to be dismissed by the Hon'ble
Supreme Court, by its order dated 25.02.2022. The petitioners, thereafter,
filed I.A.No.1 of 2022 to condone the delay of 1116 days in filing the
appeal under Section Order XLI Rule 3-A read with Section 151 of
C.P.C. before the Principal District and Sessions Judge,
Ramanathapuram.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
10.The learned counsel for the petitioners submits that the learned
Principal District and Sessions Judge, Ramanathapuram, has committed a
grave error in rejecting the application filed for condoning the delay of
1116 days in filing the appeal. It is submitted that the remedy that was
available under Order IX Rule 13 of C.P.C. read with Section 5 of the
Limitation Act is different from the Appellate remedy under Section
96(2) read with Order XLI Rule 1 of CPC.
11.The learned counsel for the petitioners has relied upon a
decision of the Hon'ble Supreme Court in N.Mohan Vs. R.Nadhu
reported in 2020 1 CTC 343. It is submitted that the said decision deals
with a case under similar circumstances as in the present case. It also
deals with second round of litigation as in the present case. In the first
round, the Court had declined to condone delay in filing the application
under Order IX Rule 13 of C.P.C., as in the present case. In the second
round, to condone the delay in filing the appeal, the delay was condoned.
It is submitted that the same reasoning has to be applied to the facts of
the case.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
12.Per contra, the learned counsel for the respondent, on the other
hand, would submit that the order is well reasoned and requires no
interference. It is submitted that no clear explanation is forthcoming for
the delay that was caused in the first round while filing application under
Section 5 of the Limitation Act, to condone the delay under Order IX
Rule 13 of C.P.C.
13.It is submitted that the delay caused in filing the appeal under
Section 96(2) r/w Order XLI Rule 1 of CPC alone can be excluded by
applying the principle in Section 14 of the Limitation Act. The delay of
467 days and 712 days that was caused after the petitioners were set ex-
parte, has been found to be unsatisfactory by this Court in earlier
CRP(MD)Nos.1688 & 1689 of 2019, vide order dated 09.11.2021, which
has been affirmed by the Hon'ble Supreme Court while dismissing the
Special Leave Petitions of the petitioners in S.L.P.Nos.2054 and 2055 of
2022.
14.It is submitted that the decision of the Hon'ble Supreme Court
cannot be applied to the facts of the case. That apart, it is submitted that
the Court has not laid down any ratio to be followed in the above case
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
relied on by the learned counsel for the petitioners. It is further submitted
that the Court has taken note of the bona fide conduct of the parties (the
defendants therein) and condoned the delay and that the said order was
not based on any legal principle. It is further submitted that this Court
need not interfere with the impugned order, as the petitioners have been
negligent in not filing the appeal in time and the delay has not been
properly explained.
15.I have considered the arguments advanced by the learned
counsel for the petitioners and the learned counsel for the respondent.
16.The delay in filing application under Order IX Rule 13 of
C.P.C. was not sufficiently explained. The delay was condoned by the
Trial Court in I.A.No.462 of 2018 and I.A.No.119 of 2019. However,
the decision of the Trial Court was reversed by this Court in C.R.P.
(MD)Nos.1688 and 1689 of 2019. Therefore, for the period for which
the delay was condoned and reversed cannot be condoned in the second
round under Section 96 r/w Order XLI Rule 1 of C.P.C. At best, the
appeal time taken in pursuing the remedy before a wrong forum alone
can be condoned under Section 14 of the Limitation Act. Section 14 of
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
the Limitation Act, reads as under:-
14. Exclusion of time of proceeding bona fide in court
without jurisdiction. —
(1) In computing the period of limitation for any suit the time
during which the plaintiff has been prosecuting with due diligence
another civil proceeding, whether in a court of first instance or of
appeal or revision, against the defendant shall be excluded, where
the proceeding relates to the same matter in issue and is prosecuted
in good faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application,
the time during which the applicant has been prosecuting with due
diligence another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the same
relief shall be excluded, where such proceeding is prosecuted in good
faith in a court which, from defect of jurisdiction or other cause of a
like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order
XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the
provisions of sub-section (1) shall apply in relation to a fresh suit
instituted on permission granted by the court under rule 1 of that
Order where such permission is granted on the ground that the first
suit must fail by reason of a defect in the jurisdiction of the court or
other cause of a like nature.
Explanation.— For the purposes of this section,—
(a) in excluding the time during which a former civil
proceeding was pending, the day on which that proceeding was
instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be
deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be
deemed to be a cause of a like nature with defect of jurisdiction.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
17.The Hon'ble Supreme Court had intervened under similar
circumstances in N.Mohan Vs. R.Madhu reported in 2020 (1) CTS 343.
Paragraphs 17, 18, 19 & 20 from the said decision are extracted below:-
''17.In the present case, the respondent has filed the
Money Suit being OS No.76 of 2015 for recovery of Rs.
46,98,500/- together with interest and the said suit was decreed
ex-parte on 09.10.2015. Execution petition being EP No.95 of
2016 was also filed for execution of the decree. As pointed out
earlier, the appellant has filed application being IA No.327 of
2016 to condone the delay of 276 days in filing the application
to set aside the ex-parte decree. In the said application, the
appellant has stated that he has been residing at Chennai;
whereas the notice was served at Trichy and therefore, he did
not have knowledge about the filing of the said suit in OS No.76
of 2015 before the ADJ Court at Tiruchirappalli and the ex-
parte decree was passed on 09.10.2015. The appellant has
further averred that he came to know about the ex-parte decree
and the execution petition only at the time when he appeared in
CC No.240 of 2016 at Karur on 29.07.2016. As discussed
earlier, the said application filed by the appellant seeking
condonation of delay of 276 days in filing the application to set
aside the ex-parte decree was dismissed by the order dated
04.01.2017. The revision and the SLP preferred by the appellant
also came to be dismissed.
18.Thereafter, the appellant has preferred the first appeal
with the application to condone the delay of 546 days in filing
the first appeal. As pointed out earlier, there was a delay of 276
days in filing the application to set aside the ex-parte decree.
Pursuing the proceedings in the application filed under Order IX
Rule 13 CPC has caused further delay of 270 days. Thus, there
has been a total delay of about 546 days in filing the first
appeal. In the application for condonation of delay, of course,
the appellant has raised the very same ground which was taken
in the application filed under Section 5 of the Limitation Act to
set aside the ex-parte decree which was not accepted in the
earlier proceedings.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
19.The learned counsel for the appellant-defendant has
submitted that a huge amount of Rs.45,00,000/- is said to have
been paid by cash which according to the learned counsel raises
serious doubts about the genuineness of such transaction. Per
contra, the learned Senior counsel for the respondent-plaintiff
has submitted that lending of Rs.45,00,000/- as hand loan is
substantiated by issuance of two post-dated cheques in favour of
the respondent by the appellant – one for the sum of Rs.
25,00,000/- and another for the sum of Rs.20,00,000/-. We are
not inclined to go into the merits of the contention of the parties.
All that is to be pointed out is that the appellant would have
been well advised that if he had filed the first appeal
simultaneously along with the application under Order IX Rule
13 CPC. The appellant has however shown his bona fide by
depositing Rs.25,00,000/- in compliance with the orders of this
Court dated 13.08.2018. The said amount of Rs.25,00,000/- was
permitted to be withdrawn by the respondent-plaintiff.
Considering the facts and circumstances of the case and in the
interest of justice, in our view, the appellant deserves an
opportunity to put forth his defence in the suit for recovery of
money. But to avail this opportunity, he must deposit the balance
amount of Rs.20,00,000/- as a condition precedent for
condonation of delay. In these terms, the impugned judgment is
accordingly liable to be set aside.
20. The delay of 546 days in filing the first appeal shall
therefore be condoned with condition that the appellant should
deposit Rs.20,00,000/- before the trial court-Principal District
Judge, Tiruchirappalli, to the credit of OS No.76 of 2015 on or
before 28.02.2020, failing which, the application for
condonation of delay shall stand dismissed. On such deposit of
Rs.20,00,000/- the same shall be invested in a nationalised bank
for a period of six months with the provision of auto-renewal.
The deposit of Rs.20,00,000/- and also the earlier deposit of Rs.
25,00,000/- would be subject to the outcome of the appeal. On
deposit of Rs.20,00,000/-, the impugned judgment passed by the
Madurai Bench of Madras High Court in CMP(MD) No.6566 of
2017 in AS(MD) SR No. 27805 of 2017 is set aside and this
appeal is allowed. The delay in filing the appeal is condoned.
The appeal shall be taken on file and the High Court shall
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
proceed with the same in accordance with law. We make it clear
that we have not expressed any opinion on the merits of the
matter. It is also made clear that the criminal complaints filed
under Section 138 of NI Act be proceeded on its own merits
without being influenced by any of the views expressed by this
Court or by the High Court.”
18.I am therefore bound by the approach adopted by the Hon'ble
Supreme Court in N.Mohan Vs. R.Madhu. In the present case, it
appears that a sale agreement dated 17.08.2015 was signed between the
first petitioner and the respondent for a sum of Rs.2,60,000/-. The
petitioners appear to have received a sum of Rs.40,000/- as advance.
Thereafter, the first petitioner has executed a sale deed in favour of the
second petitioner in violation of the alleged rights of the respondent
under the aforesaid sale agreement dated 17.08.2015. Pursuant to the ex-
parte decree, the respondent has also deposited the differential amount
of Rs.2,40,000/- and invested a further sum of Rs.23,400/- towards stamp
duty and registration charges.
19.Considering the fact that the respondent has been put to
inconvenience by the petitioners and since the respondent has deposited
the balance sale consideration and also invested the balance amount
together with the stamp duty, I am inclined to intervene in favour of the
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
petitioners by directing the petitioners to pay a sum of Rs.1 lakh to the
respondent. This amount shall be paid directly to the respondent on or
before 07.06.2023. Subject to such payment, the application filed by the
petitioners in I.A.No.1 of 2022 to condone the delay before the Principal
District and Sessions Court, Ramanathapuram, shall stand allowed. The
learned Principal District and Sessions Judge, Ramanathapuram, shall
number the appeal and dispose it on merits as expeditiously as possible,
preferably, within a period of nine months in accordance with law. The
petitioners shall report compliance by filing a suitable memo before the
learned Principal District and Sessions Judge, Ramanathapuram.
20.With the above directions, this Civil Revision Petition stands
disposed of. No costs. Consequently, connected miscellaneous petition is
closed.
25.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
dss
Note : Issue order copy on 27.04.2023
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
To
The Principal District and Sessions Judge,
Ramanathapuram.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1113 of 2023
C.SARAVANAN, J.
dss
C.R.P(MD).No.1113 of 2023
and
CMP(MD)No.5363 of 2023
25.04.2023
https://www.mhc.tn.gov.in/judis
