Madras High Court
S.Kishore Kumar vs N.Sekar on 11 September, 2023
C.R.P.(MD)No.995 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.995 of 2019
S.Kishore Kumar ... Petitioner / Petitioner/Plaintiff
Vs.
N.Sekar ... Respondent / Petitioner/2nd Defendant
Prayer: This Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure, against the fair order and executable order, in
I.A.No.529 of 2018, in O.S.No.16 of 2013 on the file of the IVth
Additional District Judge, Madurai, dated 06.12.2018.
For Petitioners : Mr.S.Manohar
For Respondents : Mr.A.V.Arun
ORDER
The instant Civil Revision Petition has been filed against the
order, in I.A.No.529 of 2018, in O.S.No.16 of 2013 on the file of the
IVth Additional District Judge, Madurai, dated 06.12.2018.
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2. The revision petitioner is the respondent / plaintiff and the
respondent herein is the petitioner / second defendant before the Court
below.
3. For the sake of convenience, the parties are referred to
according to their litigative status before the Court below.
4. It appears that the plaintiff has filed the suit for the relief of
specific performance and for delivery of possession in respect of the
schedule mentioned property. The total consideration according to the
pliant was Rs.79,70,000/-. In which, according to the plaintiff, Rs.
25,00,000/- has already been paid as a advance. It is the submission of
the plaintiff that the suit was decreed on 31.07.2017.
5. However, the second defendant has filed an application
under Order 9 Rule 13 C.P.C along with delay condonation application
under Section 5 of the Limitation Act, to condone the delay of 310 days
in filing the connected applications, to set aside the exparte decree.
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6. The learned counsel for the plaintiff would submit that
when the decree has been passed, based upon the substantial evidence of
the parties and has been allowed on merits, the very filing of the
application under Section 5 of the Limitation Act, is not maintainable.
Therefore, contended that the order of the Court below in allowing the
application is liable to be interfered with. The learned counsel for the
plaintiff has also relied upon the latest judgment of the Hon'ble Supreme
Court in S.L.P.No.3543 of 2019 in a case of Y.P.Lele V. Maharashtra
State Electricity Distribution Company Ltd.
7. Per contra, the learned counsel for the second defendant
would submit that even as per the judgment, dated 31.07.2017, this
defendant was set exparte, therefore, would vehemently submit that the
very application under Order 9 Rule 13 C.P.C, as against the defendant
is maintainable. Therefore, the learned counsel would submit that, since
there was a delay of 310 days in filing the application, to set aside the
exparte decree, he moved an application under Section 5 of the
Limitation Act.
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8. The learned counsel for the second defendant would further
submit the second defendant has believed his brother, who is the first
defendant. He would submit that since the first defendant engaged a
counsel for this second defendant, has not properly intimated about the
stage of the suit, and that the second defendant came to know about the
exparte decree only when he received summons in I.A.No.302 of 2018,
and that in the meanwhile, there was a delay of 310 days. Hence, the
learned counsel would submit that in the wisdom of the Court below, has
exercised its discretion and allowed the Section 5 of Limitation Act
application, therefore, the same should not be interfered with.
9. The learned counsel for the second defendant has relied
upon the judgments of the Hon'ble Supreme Court reported in 2008-13-
SCC-466 (Bank of India V. Mehta Brothers) and 2019-4-CTC-122
(G.Ratna Raj (D) V. Sri Muthukumarasamy Permanent Fund Ltd.).
10. I have given my anxious consideration to the either side
submissions.
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C.R.P.(MD)No.995 of 2019
11. First of all, we must see whether the judgment, in which,
an application is being filed to set aside the exparte decree is based on
merits or an exparte decree. On perusal of the judgment, the second
defendant admittedly has been set exparte. However, as against the first
defendant, the suit was decreed on merits. On the other hand, it is the
submission of the second defendant's counsel that, since the first
defendant has not been cross examined, the very judgment cannot be
construed as the judgment on merits.
12. The learned counsel for the plaintiff would invite the
attention of this Court, to the explanation of Order 17 Rule 2 of C.P.C,
and would contend that, since the substantial part of the evidence of the
first defendant has already been recorded, the contention of the second
defendant that, the judgment is not on merits, is irrational.
13. In this connection, the learned counsel for the plaintiff
would rely upon the judgment of the Hon'ble Supreme Court held in
S.L.P.No.3543 of 2019 in a case of Y.P.Lele V. Maharashtra State
Electricity Distribution Company Ltd. The relevant portion of the
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judgment is as follows-
“19. Now coming to the explanation, what is
stated therein is that where the evidence or a
substantial portion of the evidence of any party has
already been recorded and such party fails to appear
on any day to which the hearing of the suit is
adjourned, the Court would be at liberty to proceed
with the case as if such party were present. Two
phrases are important in the explanation “any party”
and “such party”. “Any party” refers to the party
which has led evidence or substantial evidence and
“such party” refers to that very party which has led
evidence or substantial evidence. What is discernible is
that under Order XVII Rule 2, the Court would proceed
to pass orders with respect to any of the parties being
absent or both the parties being absent. Whereas the
explanation is confined to record the presence of that
party and that party alone, which has led evidence or
substantial evidence and has thereafter failed to appear.
In the present case, admittedly the suit was at the stage
of plaintiff’s evidence as is apparent from the order
dated 04.12.2004. The evidence of the defendants had
not even started and the defendants’ counsel had not
even cross-examined the plaintiff ’s evidence.”
(Emphasis supplied by this Court)
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14. According to the above ratio, the Hon'ble Supreme Court
held that, as against the party, who recorded the substantial evidence, if
they fail to appear in the proceedings, then judgment can be passed on
merits against them. Here the plaintiff alone let in substantial evidence
including the cross examination by the first defendant. Therefore,
though the defendant appears to have not led in any evidence, his cross
examination against the plaintiff would definitely a substantial evidence
on behalf of the first defendant.
15. At this juncture, this Court would like to extract the Order
17 Rule 2 C.P.C. :-
“22 . Procedure if parties fail to appear on day
fixed.
Where, on any day to which the hearing of the suit
is adjourned, the parties or any of them fail to appear, the
Court may proceed to dispose of the suit in one of the modes
directed in that behalf by Order IX or make such other order
as it thinks fit.
Explanation-
Where the evidence or a substantial portion of the
evidence of any party has already been recorded and such
party fails to appear on any day to which the hearing of the
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suit is adjourned, the Court may, in its discretion, proceed
with the case as if such party were present.”
16. The explanation to the Order 17 Rule 2 C.P.C., refer the
word “substantial portion of the evidence of any party has already been
recorded”. Through the above reference, the learned counsel for the
second defendant would submit that only the substantial portion of the
plaintiff's side evidence, has been let in, and that the first defendant has
only filed a proof affidavit, therefore, no substantial portion of the
evidence of the first defendant was let in before the Court. As such, the
learned counsel for the second defendant would submit that the
judgment of the Court below in it's entirety is not the judgment after full
contest.
17. At this juncture, this Court deem it appropriate to extract
the definition of the word “evidence”, which has been defined in
Section 3 of the Indian Evidence Act:
.....“Evidence” means and includes - (1) all
statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under
inquiry, such statements are called oral evidence;
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C.R.P.(MD)No.995 of 2019
(2) [all documents including electronic records
produced for the inspection of the Court], such documents
are called documentary evidence.
18. As per the above definition, all statements, which the
Court permits to be recorded becomes the evidence. In that context, as
we already stated elsewhere in the order, if we look at the cross
examination of the first defendant, he (the first defendant) put forth his
case to the plaintiff by way of a cross examination and during his cross
examination, he obtained answers by way of a statement from the
plaintiff. Therefore, this Court is of the view that the very statement
recorded through cross examination is the substantial evidence of the
first defendant. Therefore, this Court respectfully disagree from the
submission of the learned counsel for the second defendant that the
decree in it's entirety should be treated as an exparte decree.
19. At the same time, in the Y.P.Lele case (cited supra), it has
been explained very lucidly about the word “any party” and “such
party”. Ultimately, held that the word “any parties”, is the party who has
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let in evidence or substantial evidence. The word “such party” denotes
the very party who has let in evidence or substantial evidence.
20. Here, as discussed supra, the first defendant will come
within the definition of the word ”such party”, as he has cross examined
the plaintiff. Therefore, this Court is having no iota of doubt about the
nature of decree as against the first defendant, as the decree against him
is on merits. To put it differently the decree in it's entirety can not be
construed as exparte decree.
21. Therefore, now, we are only concerned about the decree
passed against the second defendant. Admittedly, as against the second
defendant, the decree was an exparte one.
22. At this juncture, the learned counsel for the second
defendant took another line of argument and would submit that since the
decree directs both the first and second defendant to execute the sale
deed, the decree become indivisible. Hence, by following the first
proviso, of Order 9 Rule 13 C.P.C, while setting aside the decree as
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against the second defendant, the decree against the first defendant also
is liable to be set aside.
23. In this regard, the learned counsel for the second defendant
would rely upon the judgment of the Hon'ble Supreme Court reported in
2008-13-SCC-466 (Bank of India V. Mehta Brothers). The relevant
portion of the judgment is as follows-
“29.Therefore, keeping this in mind, let us now
consider whether a contested decree by some of the
defendants can be set aside while considering the
application for setting aside the ex parte decree against
one of the defendants. This would, in our view, certainly
depend on the nature of reliefs claimed by the plaintiff in
his plaint and the nature of the decree in question. If the
decree is indivisible, the court would be at liberty to set
aside the decree not only against the defendant who
applied for setting aside the exparte decree passed against
him, but also as against all or any of the other
defendants.”
(Emphasis supplied by this Court)
Though the proposition putforth by the second defendant is settled one,
here the crucial word is, “if the decree is indivisible”. Therefore, now we
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must see whether the decree is indivisible. In this context, it is relevant
to refer Section 12 of Specific Relief Act. As per the above provision,
an agreement can be partially enforced. If that being the case, in view
of the decree against the first defendant on merits, the same can be
executed separately.
24. Coming back to the sufficient cause, while perusing the
impugned order the Court below has believed the statement made by the
petitioner in respect of the delay. When the Court below in its wisdom
has positively found sufficient cause to condone the delay of 310 days,
this Court should be slow in interfere with the said order, unless the
same is perverse. In this regard, it is useful to refer the judgment of the
Hon'ble Supreme Court reported in AIR-1998-SC-3222 (BalaKrishnan
V. Krishnamoorthy). The relevant portion of the judgment is as follows
Rules of limitation are not meant to destroy the
right of parties. They are meant to see that parties do not
resort to dilatory tactics, but seek their remedy promptly.
The object of providing a legal remedy is to repair the
damage caused by reason of legal injury. Law of limitation
fixes a life-span for such legal remedy for the redress of the
legal injury so suffered. Time is precious and the wasted
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time would never revisit. During efflux of time newer causes
would sprout up necessitating newer persons to seek legal
remedy by approaching the courts. So a life span must be
fixed for each remedy. Unending period for launching the
remedy may lead to unending uncertainty and consequential
anarchy. Law of limitation is thus founded on public policy.
It is enshrined in the maxim Interest reipublicae up sit finis
litium (it is for the general welfare that a period be putt to
litigation). Rules of limitation are not meant to destroy the
right of the parties. They are meant to see that parties do not
resort to dilatory tactics but seek their remedy promptly. The
idea is that every legal remedy must be kept alive for a
legislatively fixed period of time.
(Emphasis supplied by this Court)
This Court could not find any perversity in the order of the Court.
25. Therefore, this Court is of the view that the very order
passed by the Court below is liable to be confirmed. However,
considering the hardship faced by the plaintiff, this Court is inclined to
enhance the cost from Rs.2,000/- to Rs.25,000/-.
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26. Hence, the instant Civil Revision Petition stands
dismissed by directing the second defendant to pay enhanced cost in a
sum of Rs.25,000/- to the plaintiff within a period of four weeks from
the date of receipt of copy of this order. Failing which, the petition in
I.A.No.529 of 2018 will be stands dismissed automatically.
27. Considering the nature of the suit, the Court below is
directed to dispose of the suit as expeditiously as possible preferably,
within a period of six months, however, subject to the out come of the
application filed, to set aside the exparte decree, as against this second
defendant.
11.09.2023
NCC : Yes/No
Index :Yes/No
Ls
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C.R.P.(MD)No.995 of 2019
To
1.The District Munsif cum Judicial Magistrate,
Sivagiri.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.995 of 2019
C.KUMARAPPAN.,J.
Ls
Order made in
C.R.P(MD)No.995 of 2019
11.09.2023
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