Madras High Court
T.Sekar vs Selvan on 16 October, 2024
Author: S.Srimathy
Bench: S.Srimathy
C.R.P.(MD)No.2490 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
C.R.P.(MD)No.2490 of 2024
and
C.M.P.(MD)No.14229 of 2024
T.Sekar ... Petitioner
Vs.
1.Selvan
2.Abraham David
3.Sundar
4.Sekar ... Respondents
PRAYER : Civil Revision Petition is filed under Section 115 of C.P.C., against
the order, dated 15.09.2023, passed in I.A.No.122 of 2022 in unregistered A.S.,
on the file of the Subordinate Court, Tiruchendur.
For Petitioner : Mr.I.Robert Chandra Kumar
*****
ORDER
The present civil revision petition is filed against the order, dated
15.09.2023, passed in I.A.No.122 of 2022 in unregistered A.S., on the file of the
Subordinate Court, Tiruchendur.
https://www.mhc.tn.gov.in/judis
2. The suit in O.S.No.148 of 2011 was filed by respondents 1 and 2 herein
namely Selvan and Abraham David for partition. The defendants are Sundar,
Sekar and T.Sekar. The suit was allowed and the preliminary decree for 2/4 share
was granted, but the prayer of permanent injunction was dismissed.
3. The revision petitioner was the 3rd defendant in the suit. Since the suit
was allowed, aggrieved over the same the 3rd defendant had preferred an appeal in
an un-numbered Appeal Suit with condone delay application to condone the delay
of 3146 days. The said application was dismissed. Aggrieved over the same the
present revision petition is filed.
4. The delay is more than eight years. In the meanwhile, interlocutory
application in I.A.No.263 of 2018 was filed for passing final decree by the 4th
defendant namely M.Sekar. The contention of the revision petitioner is that he is
not aware of the final decree proceedings but the contention of the plaintiffs is
that the revision petitioner is aware of the proceedings. The Court below had
considered the said plea of the revision petitioner and held that the revision
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petitioner is not aware of the final decree proceedings. At the same time the Court
below held that the revision petitioner had not explained the delay of four years
thereafter and therefore had held that the delay cannot be condoned. It is seen that
the reason stated by the revision petitioner is that his counsel died and hence he
could not file the appeal in time. It is seen that the suit was decreed on
24.09.2013, the counsel died on 25.03.2021. The revision petitioner had not
explained the delay from 2013 to 2021, which is nearly 8 years. This Court is of
the considered opinion that the delay is huge and the same is not properly
explained.
5. The revision petitioner further submitted that from 1995 onwards he is in
possession of the suit properties i.e. for more than 29 years. Further submitted that
he is having lease hold rights for the suit properties and also submitted that the
respondents 3 and 4 namely M.Sundar and M.Sekar had agreed to sell their share
in the respect of the 1st schedule of property for a sum of Rs.1,80,000/- and the
revision petitioner had paid advance of Rs.40,000/- on 19.12.2002. Apart from the
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same they received Rs.1,00,000/- in the year 2011. Without considering the same
the Trial Court had passed the judgment, hence he had preferred Appeal Suit.
6. This Court is of the considered opinion that since the revision petitioner
is not claiming ownership rights but only lease hold rights. The suit is filed for
partition and the two plaintiffs namely Selvan and Abraham David and the
defendants 1 and 2 namely M.Sundar and M.Sekar are entitled to share in the
properties. Therefore, this Court is of the considered opinion that the appeal itself
is futile exercise. Moreover, it may affect the rights of the above stated parties.
7. The revision petitioner submitted that there is an agreement to sell the
property and an advance of Rs.40,000/- is paid on 19.12.2002. If it is so, then the
revision petitioner’s remedy is to file specific performance suit. But as on date the
claim is barred by limitation. Further the revision petitioner claims he had paid
further money of Rs.1,00,000/- in the year 2011. On perusal of the judgment in
O.S.No.140 of 2011 it is seen that the revision petitioner has not filed any
document to prove that the said amount is paid. Even if it is paid, then the revision
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petitioner ought to file a separate suit to prove the same and he cannot use the
appeal as a tool to thwart the rights of the said plaintiffs and two defendants who
are beneficiaries of the partition suit. Therefore, this Court is of the considered
opinion that the claim of the revision petitioner cannot be entertained. However,
the revision petitioner is at liberty to file a separate suit and prove the aforesaid
payments through documents evidence, if so advised.
8. With the above said observations, the civil revision petition is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
16.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Tmg
https://www.mhc.tn.gov.in/judis
To
1.Subordinate Court, Tiruchendur.
2.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.SRIMATHY, J.
Tmg
16.10.2024
https://www.mhc.tn.gov.in/judis
