Allowed

Suseela v. S.Rajkumar

Madras HC4 Jun 2013CRP/276/2012

Case brief

AI extract

What is this about?

This High Court allowed a Civil Revision challenging an order condoning an inordinate delay of over four years by a practicing lawyer in filing a petition to set aside an ex parte decree. The Court set aside the lower court'sOrder for lack of sufficient cause and bona fides prejudicing the petitioner's acquired rights under a specific performance decree.

What did the court decide?

Set aside the order dated 14.06.2011 allowing the interlocutory application condoning the delay; close the connected miscellaneous petition.

Suseela Vs S.Rajkumar — Property and Title | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 04.06.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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C.R.P. (NPD) No.276 of 2012 and M.P.No.1 of 2012

Suseela

... Petitioner

versus

S.Rajkumar

... Respondent

Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the fair and decretal order, dated 14.06.2011 made in I.A.No.307 of 2010 in O.S.No.120 of 1998 on the file of the SubCourt, Sathyamangalam.

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ORDER

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This Civil Revision has been preferred against the order and decretal order, dated 14.06.2011 made in I.A.No.307 of 2010 in O.S.No.120 of 1998 on the file of the Sub-Court, Sathyamangalam.

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The petitioner herein was the plaintiff before the trial court.

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The Interlocutory Application in I.A.No.307 of 2010 was filed by the respondent herein, the second defendant in the suit, under Section 5 of Limitation Act to condone the delay of 1733 days in filing a petition to set aside the exparte decree, dated 28.04.2005. The suit was filed by the revision petitioner herein, seeking a decree, directing the defendants 2 to 4 therein to execute a sale deed for common 1/2 share of the schedule of property to the plaintiff, based on an agreement. The plaintiff is the daughter of the first defendant's brother and it was alleged that the first defendant had entered into a written agreement for sale with the plaintiff on 01.09.1993, whereby agreed to sell "A" schedule property described in the plaint for a consideration of Rs.4,00,000/-, out of which the first defendant received a sum of Rs.2,00,000/- as advance, and part of the sale consideration from the plaintiff. As per the agreement, the plaintiff should pay the balance amount, Rs.2,00,000/- within six months from the date of the agreement and the first defendant had to execute sale deed in respect of the said property. Though the plaintiff was ready and willing to perform her part of the contract, sale deed was not executed, as per the agreement. Hence, according to the plaintiff, she filed the suit, seeking specific performance of the agreement.

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As per the copy of the written statement filed in the typed set of papers, it is seen the first defendant had admitted that there was an agreement between himself and the plaintiff and also the advance amount received by him. However, in the written statement, he has stated that it was his joint family property and also disputed the subsequent endorsement made. After entering into a sale agreement, he cannot take a defence saying it his joint family property.

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In the accompanying affidavit relating to I.A.No.307 of 2010, the respondent herein, he has stated that he was bed-ridden, hence, could not appear before the court below, on the date of exparte decree. It is further stated that his sister and mother respectively, the defendants 3 and 4 in the suit are also entitled to share in the property. He has further stated that the decree was passed for 1/2 share in one acre land, without specific boundaries, hence, the decree could not be executed. The application was filed only to condone the delay of 1733 days, nearly 4 years and 9 months, hence, he cannot challenge the decree and the order passed in the E.P, in the application seeking an order to condone the delay.

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In the counter, the petitioner herein, who was the respondent in the Interlocutory Application has stated that the averments made in the accompanying affidavit are false. The petitioner herein has further stated that the respondent is a practicing lawyer and he had appeared in various cases, after 28.04.2005. After the exparte decree, Execution Petition in E.P.No.48 of 2007 was filed, wherein notice was served on the respondent, however, no petition was filed immediately by the respondent herein, to set aside the exparte decree. Pursuant to the order passed in the E.P., sale deed was also executed in favour of the petitioner herein. For delivery of possession, the petitioner filed E.A.No.80 of 2010. At that stage, the respondent had come forward with an unnumbered petition under Order IX Rule 13 CPC, along with the Interlocutory Application to condone the inordinate delay of 1733 days.

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Learned counsel appearing for the petitioner submitted that the Court below, without considering the Interlocutory Application on merits, has allowed the petition, against law, detrimental to the rights of the petitioner herein. In support of his contention, the petitioner herein has produced the copy of the sale deed, executed in favour of the petitioner by the Principal Subordinate Judge, Gobichettipalayam on 14.10.2008.

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While deciding the petition filed under Section 5 of Limitation Act, the Court below could have considered whether the delay was satisfactorily explained by the petitioner, seeking an order to condone the inordinate delay. Merely by stating that "to meet the ends of justice", the Court cannot pass an improper order. In the suit there were four defendants, the first defendant S.K.Subramanyam died, the other defenants 3 to 4 are his son, daughter and wife. Except the second defendant, who is the respondent herein, others have not filed any petition to set aside the exparte decree or any revision before this Court, though the respondent / D2 has stated that his sister and mother are also entitled to get share in the property.

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The petitioner herein has sated in the counter that the respondent is a practicing lawyer and even after the exparte decree, he appeared in number of cases before various Courts, however, the same has not been disputed by the respondent / D2. It is also not in dispute that the petitioner filed Execution Petition in E.P.No.48 of 2007, wherein notice was served on the respondent and others, however, the respondent had not filed any petition immediately under Order 9 Rule 13 CPC to set aside the exparte decree.

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It is further seen that pursuant to the order passed by the Principal Sub-Court, Gobichettipalayam, sale deed was executed through the said Court in favour of the petitioner herein. As per the xerox copy of the sale deed, it has been made clear that the petitioner herein had purchased non-judicial stamp paper alone for Rs.16,000/-. In the written statement itself, the first defendant has admitted that he received Rs.2,00,000/- as advance. The balance amount was also paid subsequently by the petitioner herein, before execution of the sale deed in favour of the petitioner herein. However, the Court below, without considering the aforesaid facts, simply allowed the petition, by its order, dated 14.06.2011, directing the respondent herein to deposit Rs.5,000/-, which is an unreasonable and unjustifiable condition, improperly imposed by the Court below, for allowing the application.

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It is contended by the learned counsel appearing for the petitioner, by allowing the petition, imposing an improper condition, the right of the petitioner is prejudiced. Learned counsel appearing for the petitioner, in support of his contention, cited the following decisions :

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B.Mathuri Goud vs. B.Damodar Reddy, 2012 (7) Scale

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230

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2. Maniben Devraj Shah vs. Municipal Corpn. of Brihan

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Mumbai, (2012) 5 SCC 157

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Sundar Gnanaolivu vs. Rajendran Gnanavolivu, 2003-1-

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LW 585

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K.M.Balasubramaniam vs. C.Loganathan, 2011 (2) MWN

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(Civil) 741

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S.D.Muthiah Gowder vs. C.Marimuthu , 2011 (2) MWN

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(Civil) 129

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Sankaralingam vs. V.Rahuraman , 2002 (3) CTC 13

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In B.Mathuri Goud vs. B.Damodar Reddy , reported in

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2012 (7) Scale 230 , the Hon'ble Supreme Court has held that in a petition filed under Section 5 of Limitation Act, to condone the delay of 1236 days in filing petition under Order 9 Rule 13 CPC was not sustainable in law, since in the Execution Proceeding, the respondent had been evicted from the premises and only after a lapse of 1 year, he filed an application under Order 9 Rule 13 CPC to set aside the exparte decree along with the petition under Section 5 of Limitation Act to condone the inordiante delay. The Hon'ble Supreme Court has held that liberal approach need not be adopted in all the cases, when the delay is deliberate and inordinate, to meet the ends of justice.

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12. In Maniben Devraj Shan vs. Municipal Corpn. of Briham

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Mumbai , reported in (2012) 5 SCC 157 , the Hon'ble Apex Court has held as follows :

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"23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

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What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."

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When the inordinate delay is not satisfactorily explained and the reason stated is found to be concocted, as per the decision rendered by the Hon'ble Apex Court, the delay shall not be condoned.

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In the instant case, it is not in dispute that the respondent is a practicing lawyer and the delay is for about 4 years and 9 months. In the counter filed before the Court below, the petitioner herein has categorically stated that after the exparte decree, the respondent use to attend various cases, which was not denied by the respondent herein. After filing of the E.P, notice was served on the respondent, however, he failed to file an application to set aside the exparte decree. The reason stated by the respondent in his accompanying affidavit for the inordinate delay is also not supported by any acceptable evidence. In the light of the decisions rendered by the Hon'ble Supreme Court, referred to above, it is clear that the reason assigned by the respondent could not be construed as bonafide grounds for allowing the application.

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A Division Bench of this Court ( P.Shanmugam & F.M.Ibrahim Kalifulla, JJ ) in Sundar Gnanaolivu vs. Rajendran Gnanavolivu reported in 2003-1 LW 585 , has held as follows :

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"19...We have to therefore hold that the petitioner has not come forward with clean

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hands while seeking for condonation of delay of more than a year ans in such circumstances, the bona fides of the petitioner proved to be demonstrably lacking. Therefore, when there is total lack of bona fides on the part of the petitioner, while coming forward with the present application, going by the principles set out in the various judgments referred to above, we are of the view that this case falls within the exception to the rule and does not deserve the liberal approach formula in matters relating to condonation of delay..."

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In Sankaralingam vs. V.Rahuraman , reported in 2002 (3) CTC 13 , this Court ( A.S.Vankatachalamoorthy, J ) relying on the decisions reported in Ram Nath Sao @ Ram Nath Sahu vs. Gobardhan Sao, 2002 (1) CTC 769 and N.Balakrishnan vs. M.Krishnamurthy, 1998 (7) SCC 123 , has held as follows :

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"12. From the above, it is clear that while considering the petition filed under Section 5 of the Limitation Act, this Court has to examine the following aspects :

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Whether the petitioner has satisfactorily proved "sufficient cause" for the delay for not filing the petition in time.

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Was there any negligence or inaction or want of bona fide on the part of the petitioner.

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Whether a valuable right that has accrued to the other party will be likely to be defeated by condoning the delay.

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Whether the petitioners have arguable points on facts and law."

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In the instant case, admittedly, the respondent has not satisfactorily explained the inordinate delay of 1733 days. Even after receiving the notice in the Execution Petition, the respondent herein has not filed petition under Order 9 Rule 13 CPC and further, as per the averments of the petitioner herein, he being a practicing lawyer, was appearing regularly before various Courts in other cases, hence, there is no bonafide reason or justification for the delay on the part of the respondent herein, who filed the petition under Section 5 of Limitation Act and further, pursuant to the order passed in the E.P by the Principal Subordinate Judge, Gobichettipalayam, sale deed was executed in favour of the petitioner herein. Out of the total consideration of Rs.4,00,000/-, Rs.2,00,000/- was already paid to the first respondent in the suit and the balance was paid / deposited and the non-judicial stamp paper alone was purchased for Rs.16,000/-. In the aforesaid circumstances, the Court below, simply awarded cost of

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Rs.5,000/-, which shows that the order has been passed by nonapplication of mind and that the order would certainly prejudice the party, namely, the petitioner herein and defeat her right unreasonably.

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In S.D.Muthiah Gowder vs. C.Marimuthu , reported in 2011 (2) MWN (Civil) 129 , this Court ( S.Tamilvanan, J ), held that the delay of 844 days could not be condoned, since the inordinate delay was not satisfactorily explained.

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In the instant case, it has been made crystal clear that the suit was decreed exparte in favour of the revision petitioner / plaintiff. It was admittedly an agreement of sale of an immovable property between the petitioner and the first defendant, S.K.Subramaniyam, who subsequently died. In the written statement, the first defendant himself has admitted the agreement of sale and receiving Rs.2,00,000/- as advance and part of sale consideration. It is not in dispute that the respondent herein and the defendants 3 and 4 in the suit are legal heirs of the first defendant, being son, daughter and wife of the deceased, first defendant. However, except the petitioner, other defendants have not challenged the exparte decree. The respondent has not satisfactorily explained the inordinate delay of 1733 days, i.e.,

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for about 4 years and 9 months. The respondent has not denied the averments made in the counter by the petitioner herein that he had been appearing as Advocate in other cases before various Courts. However, he has not filed any petition to set aside the exparte decree in time. Similarly, it is not in dispute that notice was served on the respondent herein in the E.P.No.48 of 2007 on the file of the Principal Subordinate Judge, Gobichettipalayam, however, he did not contest the matter. Pursuant to the order passed in the E.P by the said Court, sale deed was also executed by the Principal Sub-Court, Gobichettipalayam in favour of the revision petitioner, after the deposit of Rs.2,00,000/- by the petitioner herein towards the balance of sale consideration. It is seen that non-judicial stamp paper alone has been purchased by the petitioner for Rs.16,000/-, apart from registration charges.

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In the aforesaid circumstances, the Court below, passing an order directing the respondent to pay Rs.5,000/- towards the costs cannot be justified as reasonable and legally sustainable. In the light of various decisions, it is made clear that there is no bonafide reason available in favour of the respondent herein, however, the Court below, without considering the accrued right of the petitioner, has

S.TAMILVANAN,J.

tsvn

erroneously passed the impugned order, prejudicial to the rights of the petitioner herein, against law, which is liable to be set aside.

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In the result, this Civil Revision Petition is allowed and the impugned order, dated 14.06.2011 made in I.A.No.307 of 2010 in O.S.No.120 of 1998 on the file of the Sub-Court, Sathyamangalam is set aside. Consequently, connected miscellaneous petition is closed. However, no order as to costs.

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04.06.2013

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Index : Yes Internet : Yes

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tsvn

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To The Sub-Court Sathyamangalam.

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Order in

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C.R.P. (NPD) No.276 of 2012

Suseela v. S.Rajkumar

Case brief

What is this about?

What did the court decide?

Suseela v. S.Rajkumar

Case brief

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