Madras High Court

R.Seran vs Arulmigu Sri Devi Adhi Parasakthi ... on 4 March, 2024

Author: P.T. Asha

Bench: P.T. Asha

                                                                           S.A.SR.No.138743 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 04.03.2024

                                                          CORAM

                                     THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                                      C.M.P.No.184 of 2024
                                                             and
                                                     S.A.SR.No.138743 of 2023

                     R.Seran                                                    ... Appellant
                                                                 Vs.

                     Arulmigu Sri Devi Adhi Parasakthi Manskeshwari
                     Amman Arutpani Arakattalai,
                     Represented by its Secretary,
                     D.Prakasam,
                     No.50/2, Kennedy Square Cross Street,
                     Sembium,
                     Chennai-600 011.                                           ... Respondent

                     PRAYER: Second Appeal filed under Section 100 of C.P.C. to set
                     aside the judgment and decree dated 06.01.2020 in A.S.No.155 of 2017
                     on the file of the V Additional City Civil Court, Chennai, confirming
                     the judgment and decree dated 13.12.2018 in O.S.No.4580 of 2014 on
                     the file of the XVII Assistant Judge, City Civil Court, Chennai.


                                     For appellant              : Mr.R.Thangamani
                                     For respondent              : Mrs.Srividhya Aravindan


                     1/11

https://www.mhc.tn.gov.in/judis
                                                                            S.A.SR.No.138743 of 2023

                                                         JUDGMENT

The above petition was filed seeking the condonation of delay of

473 days in filing the above second appeal. The reasons given for the

delay are that after the judgment in the first appeal, the respondent had

filed an Execution Petition and negotiation for a settlement was

underway. The appellant/petitioner had certain difference of opinion

with the earlier counsel who had therefore, not given him the proper

information.

2. It was only when the Bailiff from the Court had come there

to evict the petitioner from the property that he had applied for a

certified copy of the original order. Thereafter, when he approached the

earlier counsel, the learned counsel refused to help him and thereafter,

the petitioner had approached another counsel and applied for the

certified copy of the order dated 10.11.2022 and the copy was received

by him on 06.07.2023.

3. The petitioner would submit that thereafter it took

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sometime to arrange the documents for filing of the appeal and he had

also filed the petition for condoning the delay in re-presentation and in

the process, the delay in filing has taken place. Therefore, he would

submit that the delay of 473 days was neither willful nor wanton, but,

for the reasons stated above and the same may be condoned.

4. The said petition is hotly contested by the

respondent/plaintiff. The respondent would submit that the petitioner

has come to Court with this petition and has filed an affidavit

suppressing the actual facts.

5. In the counter affidavit, the respondent would submit that

after the judgment in the suit in O.S.No.4580 of 2014 was passed, the

appellant herein, who was the defendant therein, had filed an appeal in

A.S.No.155 of 2019 on the file of the V Additional Judge, City Civil

Court, Chennai. The learned Judge confirmed the judgment and decree

passed by the Trial Court and dismissed the appeal on merits, after

hearing the arguments on either side by judgment and decree dated

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06.01.2020.

6. Thereafter, the respondent had filed an Execution Petition

in E.P.No.3045 of 2021 for seeking delivery of possession and the

same was also ordered by the learned IX Assistant Judge, City Civil

Court, Chennai. However, despite the said warrant, the Bailiff was

unable to take possession in the light of the obstruction by the

appellant/judgment debtor.

7. The respondent would further submit that after the

Execution Petition was filed and after the appeal in A.S.No.155 of 2019

was dismissed, the petitioner had filed another first appeal in

A.S.SR.No.14134 of 2021 together with a condone delay petition in

I.A.No.1 of 2021 on the file of the Principal Judge, City Civil Court,

Chennai. The respondent herein, on entering appearance therein, had

filed a counter affidavit and brought to the notice of that Court about

the filing of the first appeal in A.S.No.155 of 2019 and its dismissal

and thereafter, the learned Judge, by an order dated 21.04.2022,

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dismissed the petition in I.A.No.1 of 2021 in A.S.SR.No.14134 of

2021.

8. The Execution Petition has however not been proceeded

with by the Execution Court by calling for the production of a copy of

the order dated 21.04.2022 in I.A.No.1 of 2021. It also appears that the

younger brother of the appellant herein had filed an obstruction petition

in E.A.No.1 of 2022. After contest, this petition was dismissed and

delivery of possession was ordered to the petitioner.

9. It is in this background, this second appeal has been filed

only on 09.11.2023 by the petitioner/appellant who has been contesting

all these proceedings. Therefore, the petitioner who has been contesting

the proceedings in the Trial Court cannot contend that there was a

negotiation for settlement and that he had some issues with his previous

counsel, as a result of which, he was unable to prepare the papers. The

respondent, therefore, seeks for the dismissal of this petition.

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10. The learned counsel appearing for the appellant would

submit that the delay had occurred only on account of the reasons stated

in paragraph 4 of the affidavit filed in support of this delay petition,

but, the learned counsel for the respondent would oppose the same and

reiterate the defense in the counter affidavit.

11. The suit in O.S.No.4580 of 2014 on the file of the XVII

Assistant City Civil Court, Chennai, from and out of which, the present

appeal is filed, is a suit filed by the respondent temple for recovery of

possession of the property i.e., shop premises situate within the temple

complex and for damages.

FACTS OF THE CASE:

12. The respondent's case is that they are the absolute owner of

the shop premises situate in Pallavan Road. The appellant herein was

inducted as a tenant under a rental deed dated 18.12.1998 for a period

of 11 months on a rental of Rs.600/- per month and interest-free

security deposit of Rs.25,000/- was paid by the appellant. The

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agreement was renewed on 07.04.2001, for a further period of 3 years

for the period ending on 07.04.2004.

12.1. After the expiry of the above rental period, the Trustee of

the respondent temple has been calling upon the appellant to vacate the

premises as the temple requires it for its own use for constructing

Perumal temple over there. The appellant refused to vacate and has also

not permitted a hike in rent. Apart from this, to add insult to the injury,

the appellant, without notice to the respondent temple, had renovated

the shop premises and installed a party flag on the premises, all of

which were made for mala fide reasons. Therefore, the respondent

temple has come forward with the suit in question. The appellant is

using his political clout to continue to squat on the premises.

12.2. The appellant had filed a written statement denying the title

to the respondent over the property and contended that the property

belongs to Vadapalani Co-operative Society, in which, his father is a

member. It was the association that had allotted the said land to the

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temple for the welfare of the association members and public. The

appellant admits the rental agreement, however, submits that an

advance amount of Rs.30,000/- was paid and that he agreed to pay rent

of Rs.600/- per month.

12.3. The appellant admitted the renewal of rental agreement

dated 07.04.2001. The appellant would submit that after the end of the

lease period, since the office bearers had changed, they had refused to

renew the lease, but, asked him to continue his tenancy. The appellant

would also submit that he was prompt in paying the rents. On

05.06.2014, an attempt was made to forcibly vacate him from the

premises. Therefore, he had filed a suit in O.S.No.3041 of 2014 before

the VI Assistant City Civil Court at Chennai and had obtained an order

of ad-interim injunction. The appellant would deny all the other

allegations and seek for the dismissal of the suit.

TRIAL COURT AND LOWER APPELLATE COURT:

13. After the trial, the Trial Court has decreed the suit by

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judgment dated 13.12.2018 and the appeal filed by the appellant in

A.S.No.155 of 2019 had also ended in a dismissal on 06.01.2020. The

dismissal of the appeal had also been followed up by the filing of the

Execution Petition in which proceedings, the appellant has been

participating. The Execution Petition in E.P.No.3045 of 2021 has been

filed into Court on 16.08.2021 and the details of the appeal and the date

of order have also been given in Column 5 of the Execution Petition.

DISCUSSION:

14. The appellant herein has entered appearance and after

contest, the delivery of possession has been ordered. After contesting

the Execution Petition, the appellant once again filed the first appeal

that too after the earlier first appeal had been dismissed after contest.

15. The appellant has chosen to contest the proceedings in

Execution Petition, but, has not taken steps to file the second appeal

immediately. The appellant cannot feign ignorance about the dismissal

of the appeal in A.S.No.155 of 2019. The very conduct of the appellant

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clearly shows that his only intent is to prolong the proceedings one way

or other and continue to squat on the property. The respondent temple

which has obtained the order after contest is unable to enjoy the fruits

of the decree.

16. The reasons for the delay, apart from being insufficient,

also contain false statements and therefore, this petition in

C.M.P.No.184 of 2024 stands dismissed. Consequently, the second

appeal in S.A.SR.No.138743 of 2023 stands rejected. No costs.