Madras High Court
M/S.Sashwath Construction ... vs V.Bose on 7 September, 2023
C.R.P.(MD).No.2126 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(PD)(MD)No.2126 of 2018
and
C.M.P(MD) No.9408 of 2018
1. M/s.Sashwath Construction Private Limited,
Represented by its Managing Director,
Chandramauli,
S/o. Late Annadurai,
No.9/A Vellai Vinayagar Koil Street,
S.S.Colony,
Madurai.
2. M/S. Viswas Promoters (P) Ltd.,
Represented by its Managing Director,
S.Seetharaman,
S/o. Shankaran,
Andalpuram,
T.P.K.Road, Madurai.
3. Chandramouli,
S/o. Late Annadurai,
M/S. Sashwath Construction Company Ltd.,
No.9A, Villai Vinayagar Koil Street,
S.S.Colony, Madurai.
4. Suganya ... Petitioners/Respondents 18, 19, 21 and 22
/Defendants 18, 19, 21, 22
1/11
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C.R.P.(MD).No.2126 of 2018
-vs-
1. V.Bose
... 1st Respondent/Petitioner/
Plaintiff
2. K.P.S.Selvaraj
3. K.P.S.Manoharan
4. K.P.S.Sivakumar
5. K.P.S.Muneeswaran
6. Minor Santhoshkumar,
Represented by his father and guardian
K.P.S.Muneeswaran,
Residing at Saro Vihar Appartments,
9-B/3, Vallabhai Road,
Chokkikulam,
Madurai.
7. Minor Nithin Krishnan,
Represented by his father and guardian,
K.P.S.Muneeswaran,
Plot No.E-1, Vipra Appartments,
Opposite to PTR Mahal
Chokkikulam, Madurai.
8. Minor Lakshmi,
Represented by her father and guardian,
K.P.S.Muneeswaran,
Plot No.E-1, Vipra Appartments,
Opposite to PTR Mahal
Chokkikulam, Madurai.
9. Maheswari
2/11
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C.R.P.(MD).No.2126 of 2018
10. Minor Rajalakshmi,
D/o.late Ilangovan
Represented by her mother and guardian,
Maheswari,
Plot No.E-1, Vipra Appartments,
Opposite to PTR Mahal
Chokkikulam, Madurai.
11. Muneeswaran
12. Muthumalini
13. Divya
14. Nivetha
15. Sharmila
16. Jegan Rajkumar
17. Sumi
18. Srinithi
... Respondents 2 to 18/
Respondents 1 to 17/Defendants 1 to 17
19. Thangakalyani ... 19th Respondent/ 20th Respondent/
18th Defendant
20. R.Sakthivel
21. Union Bank of India,
Kochadai Branch,
Madurai.
22. C.Annapoorani
23. C.Seenivasan
24. S.Vijayalakshmi
25. D.Guruvammal
26. Parameswari
27. Dhanalakhsmi
28. Rajendran
29. Kathiresan
30. Sekar
31. Parvathiammal ... Respondents 20 to 31/
Respondents 23 to 34/
Defendants 23 to 34
3/11
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2126 of 2018
(Since Respondents 2 to 31 remained ex parte before the
trial Court, notice to them may kindly be dispensed)
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order of the learned
Principal District Judge, Madurai passed in I.A.No.76 of 2015 in
Unnumbered suit in O.S.No.Nil of 2015 which has subsequently been taken
on file before the said Court and numbered as O.S.No.134 of 2018 on
19.04.2018.
For Petitioners : Mr.S.Parthasarathy
For Respondents : Mr.Madhavan
for Mr.M.Karthikeya Venkitachalapathy
for - R1
ORDER
The present Civil Revision Petition has been filed by the petitioners
under Article 227 of the Constitution of India, against the fair and decreetal
order of the learned Principal District Judge, Madurai passed in I.A.No.76 of
2015 in Unnumbered suit in O.S.No.Nil of 2015 which has subsequently been
taken on file before the said Court and numbered as O.S.No.134 of 2018 on
19.04.2018.
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C.R.P.(MD).No.2126 of 2018
2. The petitioners herein are the defendants 18, 19, 21 and 22. The
first respondent herein is the plaintiff before the Court below.
3. The brief facts which give rise to the instant Civil Revision Petition
are that, the first respondent/plaintiff has filed an application to condone the
delay of 549 days in representing the unnumbered plaint, which was filed for
the relief of specific performance.
4. The learned counsel for the petitioners would submit that originally,
the first respondent/plaintiff has filed the suit for injunction in O.S.No.100 of
2010. However, the said suit was dismissed on 15.09.2010. During the
pendency of an application for restoration of the injunction suit, he filed
another suit for specific performance against the petitioners in respect of the
schedule mentioned property. The learned counsel for the petitioners would
further submit that the agreement referred to in the said suit, is an oral sale
agreement and the sale consideration is more than Rupees Eight Crores. It is
the further submission of the learned counsel for the petitioners that the very
reason for delay in representation is only the vague reason that the papers got
mixed with the other bundles.
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C.R.P.(MD).No.2126 of 2018
5. In support of his case, the learned counsel for the petitioners has
relied upon the judgment of this Court reported in 1994 (1) Mad LJ 152
(M.Subramania Mudaliar Vs. K.Jnardhanam), wherein, it has been held
that the competent person to file an affidavit to condone the delay, is only the
advocate clerk and not the petitioner himself. He also relied upon the another
judgment of this Court reported in 2006 (1) CTC 187 (A.Muthusamy Vs.
Muniammal and others), wherein the Hon'ble Supreme Court has clearly
held that, whatever the principle applicable to Section 5 of the Limitation Act,
is applicable in same force to an application to condone the delay in
representation. It is the further submission of the learned counsel for the
petitioners that the judicial sympathy cannot be shown unduly while
condoning the delay. In this regard, the learned counsel for the petitioners has
relied upon the judgment of this Court reported in 2013 (1) MWN (Civil) 278
(Pandiarajan and others Vs. R.Rajammal and another).
6. The learned counsel for the petitioners also relied upon the another
judgment of this Court reported in 2008 (5) CTC 438 (Dhanalakshmi
Financiers, represented by its Managing Partner, Thiru. T.M.Kathirvel vs.
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C.R.P.(MD).No.2126 of 2018
Soundarammal and 7 others), in respect of delay in representation of 1573
days in the suit for specific performance and further, the learned counsel for
the petitioners would submit that this Court has found that long delay should
be viewed against the plaintiffs. In yet another reported judgment of this
Court in 2016 (3) MWN (Civil) 606 (Sengottaiyan and another vs.
Shanmughavadivu and others), this Court has held that the duty is cast upon
the counsel to verify the status of the case and that the parties cannot file such
a casual affidavit while filing the application to condone the delay of
representation.
7. The learned counsel for the petitioners would invite the attention of
this Court in respect of the order passed by the Court below and would submit
that there is no reason adduced by the Court below. This Court has perused
the order in I.A.No.76 of 2015 in Unnumbered O.S.No.Nil of 2015 dated
19.04.2018. For ready reference, the relevant portion is extracted as follows:
“The objection of R-18 not to entertain this
application to condone the delay in representation
of 549 days as it is utter false hood. Since the
petitioner has no good case to succeed he is filing
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C.R.P.(MD).No.2126 of 2018
frivolous petition to protect the proceedings and
though this petition to be dismissed as not
maintainable cannot be accepted in the interest of
justice, fairness and equity. Instead if this petition
is allowed the petitioner can agitate his valuable
right in the main case.
Therefore this objection of the R-18 is
rejected. This petition is allowed on condition.
Petitioner shall pay Rs.2,000/- (Rupees Two
Thousand only) only in favour of the R18 on or
before 20.06.2018 failing which this petition to be
dismissed. Call on 21.06.2018.”
8. On perusal of the above order, this Court has found that there is no
reason as to how the reason adduced by the petitioner is a sufficient cause to
condone the delay. It is pertinent to mention here that in the suit for specific
performance, the plaintiff must be ready and willing from the date of entering
into the agreement, till getting the sale deed executed in his favour. From the
perusal of the record on either side, no witnesses have been examined and no
documents were marked.
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C.R.P.(MD).No.2126 of 2018
9. Considering the peculiar circumstances of the case and also
considering the fact that huge amount is involved in this matter and also
considering the absence of reason in the impugned order, this Court deems it
appropriate to set aside the order of the Court below, dated 19.04.2018 and
remit back the matter to the Court below to dispose of the application afresh
on merits according to law after giving opportunity to the either side to let in
evidence and to mark the documents. The Court below is directed to dispose
of the above referred application within a period of six weeks from the date of
the receipt of the copy of this order.
10. The learned counsel for the plaintiff/first respondent would submit
that in pursuance of the impugned order, the suit has been numbered and the
same is pending. In view of the order passed by this Court, the further
proceedings in the suit will only be subject to the outcome of the
Interlocutory Application in I.A.No.76 of 2015.
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C.R.P.(MD).No.2126 of 2018
11. In the result, this Civil Revision Petition is allowed as indicated
above. There shall be no order as to costs. Consequently, the connected
Miscellaneous Petition is closed.
07.09.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Principal District Judge,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2126 of 2018
C.KUMARAPPAN,J.
ebsi
C.R.P(PD)(MD)No.2126 of 2018
07.09.2023
https://www.mhc.tn.gov.in/judis
