Madras High Court
Nagarathinam vs M.Palanichamy on 3 March, 2023
2023/MHC/1204
CRP(NPD)(MD)No.1443 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2023
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
CRP(NPD)(MD)No.1443 of 2014 &
MP(MD)No.1 of 2014
1.Nagarathinam
2.S.Thangavel ... Petitioners
Vs
1.M.Palanichamy
2.Maniraj
3.Anandaraj
4.The District Collector,
Collectors Office,
Thanthonimalai
Karur
5.The Tahsildar,
Taluk Office,
Karur.
... Respondents
Prayer: Petition filed under Article 227 of the Constitution of India, to call
for the records pertaining to the fair and decreetal order dated 20.12.2013 in
IA.No.11/2013 in ASSR.No.604/11.1.2013 on the file of the Principal
Subordinate Court, Karur and set aside the same.
1/13
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CRP(NPD)(MD)No.1443 of 2014
For Petitioners : Mr.D.Rajakumar
Respondents : Mr.D.S.Nedunchezian,
Government Advocate for R4 & R5
No appearance for R1 to R3
ORDER
This Civil Revision Petition is preferred by the petitioners /
respondents 1 & 2 / respondents 1 & 2 to set aside the order dated
20.12.2013 in I.A.No.11 of 2013 in ASSR.No.604/11.1.2013 on the file of
the Principal Subordinate Court, Karur. For better clarity, the petitioners in
I.A.No.11 of 2013 are the Appellants in A.S.S.R. No.604/2013 and the
respondents in this Civil Revision Petition. The first and second respondents
in I.A.No.11 of 2013 are the first and second respondents in A.S.S.R. No.
604/2013 and first and second petitioners in this Civil Revision Petition. For
the sake of convenience, the parties hereinafter are referred as arrayed in
I.A.No.11 of 2013.
2. I.A.No.11 of 2013 was filed by one M.Palanisamy, one deceased
M.Nagarajan and his legal heirs, namely, Maniraj and Anandaraj, seeking to
condone the delay of 1053 days in filing an appeal and the same was allowed
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CRP(NPD)(MD)No.1443 of 2014
by the learned Principal Subordinate Judge, Karur, by imposing cost of
Rs.2,500/- (Rupees Two Thousand Five Hundred only). Challenging the
same, the first and second respondents have preferred this Civil Revision
Petition on the grounds that (i) the petitioners in I.A.No.11 of 2013 did not
approach the Court with clean hands and that (ii) the reasons stated for the
delay in preferring the appeal were not proved before the Appellate Court
with conducive evidence.
3. The learned counsel appearing for the revision petitioners submitted
vehemently that the petitioners in the I.A. did not approach the Court with
clean hands. Though Palanichamy / first petitioner was examined as P.W.1,
no document was marked to substantiate the delay. Further, the I.A. was
filed after the death of Nagarajan, who is the second defendant in the suit.
However, without filing a petition to substitute the deceased Nagarajan or
getting leave of the Appellate Court, the sons of the deceased Nagarajan
were directly included as second and third petitioners / second and third
Appellants in the I.A. and Appeal respectively. In addition to that, the appeal
was bad for non-joinder of necessary parties, since the wife of Nagarajan was
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CRP(NPD)(MD)No.1443 of 2014
not impleaded in the petition at all. In view of the above facts, the learned
counsel for the petitioners herein prays to allow this petition by setting aside
the order in the I.A.
4. Heard the learned counsel appearing for the petitioners and the
learned Government Advocate appearing for the respondents 4 and 5
carefully and perused the materials available on record. Since there is no
representation for the respondents 1 to 3 herein, even though their names are
printed in the cause list, the affidavit filed by them in I.A.No.11 of 2013
before the learned trial Court was taken into consideration.
5. This is a case where a Civil Revision Petition is preferred
challenging the order passed by the learned Principal Subordinate Judge,
Karur, wherein, the learned Judge was pleased to allow the condone delay
petition in filing the appeal against the judgment and decree passed by the
learned Additional District Munsif Court, Karur in O.S.No.462 of 2008 on
payment of cost of Rs.2,500/- (Rupees Two Thousand Five Hundred only).
According to the affidavit filed by the petitioners 1 to 4 in I.A.No.11 of
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CRP(NPD)(MD)No.1443 of 2014
2013, since their Counsel Mr.P.Ponnan, Advocate passed away, the bundles
were traced in his office belatedly. Only thereafter, they came to know that
O.S.No.462 of 2008 was decreed on 22.01.2010 and the copy of the Decree
and Judgment was received by them only on 03.01.2013. Further, it is stated
in the affidavit that they had filed a suit in O.S.No.85 of 2002 on the file of
the District Munsif, Karur and the same was decreed as prayed for in the
plaint as against the respondents 1 and 2. It is further stated in the affidavit
that the respondents 1 and 2 (petitioners 1 and 2 herein) were parties to the
above suit and they have suppressed the decree in O.S.No.85 of 2002 in
O.S.No.462 of 2008.
6. However, except the first petitioner among petitioners 1 to 4, others
did not adduce any evidence to prove their contentions in the affidavit.
Though first petitioner, M.Palanisamy was examined as P.W.1, no document
was marked on their side with respect to the death of Mr.Ponnan, Advocate
and his brother Nagarajan (second defendant). The Decree and Judgment in
O.S.No.85 of 2002 was also not produced before the Court by them. Another
significant point to be noted is that Vijaya, wife of Nagarajan / the second
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CRP(NPD)(MD)No.1443 of 2014
defendant was not brought on record as a party in the appeal. Even
otherwise, it is pertinent that the petitioner's Counsel was duty bound to have
brought to the knowledge of the trial Court as to the factum of death of the
second defendant, facilitating the respondents to implead the legal heirs of
the second petitioner / second defendant, if the date of death of Nagarajan
was prior to the disposal of O.S.No.462 of 2008. But the case of the
petitioners 1 to 4 was that the second petitioner died after the disposal of
O.S.No.462 of 2008.
7. In that case, along with the petition to condone the delay in filing
the Appeal, the petitioners 3 and 4 ought to have filed a petition under Order
XXII, Rule 10 r/w Order XXII, Rule 11 of the Code of Civil Procedure,
1908, seeking to substitute them as additional petitioners 3 and 4 /
Appellants 3 and 4 recording the death of their father Nagarajan along with
grant leave petition. Without the leave of the Appellate Court, neither the
appeal filed by the surviving legal heirs of the deceased Nagarajan nor the
petition to condone the delay can be numbered. That apart, no convincing
explanation was also given by the witness M.Palanichamy P.W.1 (brother of
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CRP(NPD)(MD)No.1443 of 2014
the deceased Nagarajan) in this regard for not producing the death certificate
of the deceased. Without producing the death certificate of Nagarajan, the
petitioners 1 to 4, advanced an argument before the Appellate Court that,
since Nagarajan / the second defendant died after the decree of the Original
Suit, there was no necessity at all to seek permission of the Court to implead
his legal heirs in the condone delay petition / appeal and such an argument is
not sustainable. Hence, this Court is not hesitant to draw adverse inference as
to the date of death of Nagarajan as against the said petitioners in I.A.No.11
of 2013. The Counsel who appeared before the Sub-Court, Karur on behalf
of the deceased person argued the matter without disclosing the date of death
of Nagarajan. It is clear that the intention was to overlook the aspect as to
when the second defendant died, whether before or after the disposal of the
original suit. The Hon'ble Supreme Court has held in P.Jesaya (dead) by
LRs. Vs. The Sub-Collector and Another reported in (2004) 13 SCC 431 as
follows:
“4. Though the arguments are attractive one must also keep
in mind Order 22, Rule 10 of the Code of Civil Procedure. It is
obligatory on the pleader of a deceased to inform the Court and
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CRP(NPD)(MD)No.1443 of 2014
the other side about the factum of death of a party. In this case we
find that no intimation was given to the Court or to the other side
that the first respondent had died. On the contrary a Counsel
appeared on behalf of the deceased person and argued the matter.
It is clear that the attempt was to see whether a favourable order
could be obtained..........................”
8. It is quite true that it was the petitioner's case that, the second
defendant Nagarajan died after the disposal of O.S.No.462 of 2008, but this
Court cannot accept that version. The evidence of P.W.1 is something which
this Court is not able to ignore. Hence, P.W.1 in I.A.No.11 of 2013 must face
the consequences of the evidence adduced by him. If P.W.1 intends to
establish that the second defendant died after the suit in O.S.No.462 of 2008
was decreed, then it is certain that the date of death must be proved by
evidence as the same is in issue. Though the death of a person can be
presumed, there cannot be any presumption as to the date or to the time of
death unless proved beyond reasonable doubt. If an issue arises as to the date
of death, the same shall have to be determined on evidence direct or
circumstantial and not by assumption or presumption.
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CRP(NPD)(MD)No.1443 of 2014
9. In this revision petition which is preferred against the I.A.No.11 of
2013 which was allowed condoning the delay of 1053 days in preferring an
appeal, the evasiveness of the petitioners before the learned Sub-Court,
Karur from not mentioning the date of death of the second defendant does
not rule out the possibility of his date of death to be prior to the disposal of
O.S.No.462 of 2008. In such scenario, the petitioners 3 and 4 have no locus
standi at all to file I.A.No.11 of 2013, when the suit against their father, that
is, the deceased second defendant would abate automatically exclusively due
to the negligence of petitioner's Counsel to follow the mandate of Order
XXII, Rule 10-A of the Code of Civil Procedure, 1908. On such grounds the
benefit of doubt will favour the case of the Revision Petitioners. In that case,
the petitioners 3 and 4 shall not be permitted to prefer an Appeal against the
judgment and decree passed by the learned Additional District Munsif, Karur
in O.S.No.462 of 2008 as per the provisions of Order XXII, Rule 9(1) of the
Code of Civil Procedure, 1908. Here in this case, it is quite ridiculous that
the petitioners 3 and 4 have even overlooked all the procedures mandated
under Order XXII, Rules 4, 9, 10 and 11 of the Code of Civil Procedure,
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CRP(NPD)(MD)No.1443 of 2014
1908 and have proceeded confidently to add their names as the third and
fourth petitioners in I.A.No.11 of 2013 and third and fourth Appellants in
ASSR No.604/2013 respectively without the leave of the Court concerned. In
the decision in C.Manoharan Vs. C.V.Subramaniam and Ors. reported in
2006 (4) MLJ 898, this Court has held thus,
“17. ................................. The Apex Court, considering the
amended provisions of the Code of Civil Procedure, under Order
22, Rule 10-A CPC, as well as the duty of the Pleader, came to
the conclusion, that the decree passed cannot be treated as
nullity, even referring the decision relied on by the Counsel for
the appellant in Ambabai case. Therefore, as per the ratio laid
down by the Apex Court in P.Jesaya case, it is to be held, that the
decree passed in A.S.No.59 of 1993 is binding upon the L.Rs. of
the first plaintiff also and the decree cannot be treated as a
nullity.........................”
10. In the decision in N.Kamatchi Mudaliar (died) and Another Vs.
A.Pankajam in review application No.10 of 2020 dated 11.04.2022, this
Court has held that,
“12. ............................. Order XXII, Rule 10 (A) of the
Code of Civil Procedure stipulates that the advocate who filed
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CRP(NPD)(MD)No.1443 of 2014
vakalat on behalf of the defendant deemed to be holding the
vakalat even after the death of the defendant for the purpose of
informing the Court about the death of the
party............................”
11. That apart the second respondent one S.Thangavel was examined
as R.W.1 in I.A.No.11 of 2013, through whom the judgment and decree in
O.S.No.85 of 2002 on the file of the District Munsif Court, Karur was
marked as Exhibit R1. The learned trial Court has observed that it is seen
from the judgment and decree in O.S.No.85 of 2002 dated 20.01.2004 that
the first petitioner and the deceased second petitioner had filed the said suit
against the respondents 1 and 2 for the relief of permanent injunction which
was finally dismissed for default on 20.01.2004. This observation is
significant because it is fully contradictory to the affidavit filed by the
petitioners in I.A.No.11 of 2013, wherein they had stated that the same was
decreed as prayed for. To be precise, the evasiveness of the petitioners in not
disclosing the date of death of Nagarajan and their false submissions with
respect to O.S.No.85 of 2002 in their affidavit in the said I.A., has proved
fatal to the case of the petitioners.
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CRP(NPD)(MD)No.1443 of 2014
12. Thus the reasons stated for the prolonged delay of 1053 days are
not satisfactory. The above facts clearly prove that the petitioners in I.A.No.
11 of 2013 did not approach the Court with clean hands to condone the delay
of 1053 days in filing the Appeal against the judgment and decree in O.S.No.
462 of 2008 on the file of the Additional District Munsif Court, Karur.
13. In the result, the order in I.A.No.11 of 2013 in ASSR.No.
604/11.1.13, dated 20.12.2013 on the file of the learned Principal
Subordinate Judge's Court, Karur is hereby set aside. This Civil Revision
Petition is allowed. No costs. Consequently, the connected Miscellaneous
Petition is closed.
03.03.2023
NCC: Yes
Index: Yes
Speaking / Non-Speaking order
mbi / BTR
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CRP(NPD)(MD)No.1443 of 2014
L.VICTORIA GOWRI, J.
mbi / BTR
To
1.The Principal Subordinate Court,
Karur.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
CRP(NPD)(MD)No.1443 of 2014 &
MP(MD)No.1 of 2014
03.03.2023
https://www.mhc.tn.gov.in/judis
