Dismissed

Ziaullah Shariff v. Saffiullah Baigh

Madras HC15 Apr 2014CRP/2121/2008

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging an order refusing to reopen execution proceedings to admit a settlement deed. The court held that the petitioners suppressed facts regarding previous applications for similar relief and that the application was an abuse of process. The underlying order was confirmed.

What did the court decide?

The revision petition was dismissed and the order dated 12.02.2008 by the Executing Court was confirmed.

Ziaullah Shariff Vs Saffiullah Baigh — Execution and Attachment | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 15.04.2014

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CORAM:

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The Hon'ble Mr. Justice R.KARUPPIAH

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Civil Revision Petition No.2121 of 2008

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and

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M.P.No.1 of 2008

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1.Ziaullah Shariff 2.Shamiullah Shariff 3.Tajuddin Shariff 4.Sultan Shariff .. Petitioners/Plaintiffs

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vs 1.Saffiullah Baigh 2.St.Mary's Church, Rep. By its Rev.Father Thalavadi.

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3.A.Srinivasan .. Respondents/Defendants

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Prayer: The Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decretal order dated 12.02.2008 passed in E.A.No.3 of 2008 in E.P.No.183 of 1989 in O.S.No.1227 of 1987 on the file of the District Munsif Court, Sathyamangalam,Erode

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For Petitioners ... Mr.I.C.Vasudevan For 1st and 2nd Respondents ... No Appearance

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For 3rd Respondent ... Mr.R.T.Doraisamy

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The revision petition has been filed by the revision petitioners, who are the plaintiffs in the original suit against the fair and decretal orders dated 12.02.2008 passed in E.A.No.3 of 2008 in E.P.No.183 of 1989 in O.S.No.1227 of 1987 on the file of the District Munsif Court, Sathyamangalam.

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2.For the sake of convenience, the plaintiffs in the original suit are referred as revision petitioners and the defendants in the original suit are referred as respondents hereinafter.

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https://hcservices.ecourts.gov.in/hcservices/

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3.A perusal of records revealed that the revision petitioners filed a suit in O.S.No.1227 of 1987 for declaration and recovery of possession of the suit property. In the above said suit, an ex-parte decree was passed on 27.1.1989 and thereafter, an Execution Petition in E.P.No.183 of 1989 was filed on 3.4.1989. In the above said E.P, delivery of possession was ordered and the said delivery was confirmed on 27.4.1989. Thereafter, a petition was filed by the respondents to set aside the ex-parte decree and the same was ordered on 26.06.1991 and the ex-parte decree was set aside and the suit was restored. But, again the respondents not appeared and hence, the respondents were set ex-parte and an ex-parte decree was passed second time. The respondents again filed two petitions in I.A.Nos.236 and 237 of 1999 to set aside the ex-parte decree by both respondents and the said petitions were allowed on 29.9.2000 by set aside the ex-parte decree. Since the ex-parte decree was set aside, on 9.10.2000, the respondents filed E.A.No.241 of 2000 under Section 144 of Code of Civil Procedure for re-delivery of possession of the property from the revision petitioners and the said E.A was allowed on 11.9.2001. Aggrieved over the above said order of re-delivery passed in E.A.No.241 of 2000, the revision petitioners filed CRP (NPD)No.3456 of 2001. But, the said Civil Revision Petition was dismissed on 22.8.2003.

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4.After disposal of civil revision petition, since the revision petitioners/plaintiffs constructed the building unauthorisedly in the suit property, the respondents herein filed E.A.No.48 of 2006 for delivery of the suit property as per the order passed in E.A.No.241 of 2000 and the said E.A was allowed on 8.9.2006. In view of the above said order, the revision petitioners withdrew the suit and hence, the suit was 'dismissed as not pressed' on 8.9.2006. After the withdrawal of the suit, the revision petitioners filed two petitions in E.A.Nos.123 and 124 of 2007 in E.A.No.48 of 2006 to reopen the case and to receive the additional documents. The Executing Court allowed both the petitions in E.A.Nos.123 and 124 of 2007 on 31.10.2007.

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5.The revision petitioners without examining any witnesses and without marked any documents as permitted by the Executing Court in E.A.Nos.123 and 124 of 2007, they filed another petition in E.A.No.3 of 2008 under Section 151 of the Code of Civil Procedure seeking similar reliefs i.e., to re-open the hearing of the case in E.A.No.48 of 2006 in E.P.No.183 of 1988 and to allow the revision petitioner's counsel to submit his arguments.

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6.In the affidavit filed in support of E.A.No.3 of 2008, it is stated that since the material document for proof of the settlement between the parties could be obtained from the panchayators only two days prior to filing of the petition and as the said document is a necessary document, the revision petitioners filed the petition again

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https://hcservices.ecourts.gov.in/hcservices/

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to re-open the case for hearing and for further arguments.

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7.The respondents herein filed a detailed counter wherein, it is stated that the alleged document namely the settlement deed is a fraudulent document and no settlement was arrived at between both the parties before the panchayators and the possession of the property was also already taken by the third respondent and therefore, no necessity to re-open the case for fresh hearing or for fresh arguments and the petition filed by the revision petitioners only to drag on the proceedings.

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8.The trial Court has considered the contentions of both sides and finally dismissed the above said petition in E.A.No.3 of 2008. Aggrieved over the above said order of dismissal, the present revision petition has been filed by the revision petitioners.

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9.Heard the learned counsel appearing on either side and perused the materials available on record.

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10.The learned counsel for the revision petitioners would submit that the revision petitioners filed a petition in E.A.No.3 of 2008 to re-open the case in E.A.No.48 of 2006 and also permit the counsel for the revision petitioners to submit his arguments. Since the material document for proof of the settlement between the parties could be obtained from the panchayators only two days prior to the filing of the petitioners. As the said document, namely the panchayat muchilika is necessary to prove the case, the revision petitioners filed the petition to re-open the case.

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11.Per contra, the learned counsel for the respondents submitted that the revision petitioners already filed two petitions in E.A.Nos.123 and 124 of 2007 to re-open the case and to receive the alleged settlement i.e. Panchayat Muchilika dated 14.9.2006 and the said petitions were allowed on payment of costs. But, the revision petitioners did not comply with the conditions. Hence, the said petitions were dismissed. Suppressing the above said facts, the petition in E.A.No.3 of 2008 was filed by the revision petitioners and therefore, the Executing Court has rightly dismissed the above said petition and hence, there is no need to interfere with the above said order dated 12.2.2008 passed in E.A.No.3 of 2008 by the Executing Court.

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12.The revision petitioners already filed two petitions for reopening the case and for permission to mark the documents and the above said applications were allowed on condition. Since the conditions were not complied with, the above said two petitions were dismissed. Therefore, the revision petitioners filed the present petition in E.A.No.3 of 2008 for the same relief and hence, the present petition is not maintainable as rightly pointed by the learned counsel appearing for the revision petitioners. Further, the

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https://hcservices.ecourts.gov.in/hcservices/

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revision petitioners have not at all filed the above said document along with the petition while the respondents denied the above said alleged settlement before the panchayators. Considering the submissions made by the learned counsel appearing for both sides, this Court is of the view that E.A.No.3 of 2008 filed by the revision petitioners is only to drag on the proceedings with false averments and also suppressing the material facts. Therefore, the revision petition is liable to be dismissed.

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13.In the result, the revision petition is dismissed and the order dated 12.2.2008 passed by the Executing Court in E.A.No.3 of 2008 is confirmed. There is no order as to costs. Consequently, connection miscellaneous petition is closed. The District Munsif is directed to dispose of the main suit within a period of four months from the date of receipt of a copy of this order.

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Sd/-
Asst. Registrar(CS IV )
Dated 24.06.2014
/True Copy/
Sub Asst. Registrar
To
The District Munsif,
Sathyamangalam.
+1cc to Mr.R.T. Doraisamy ,Advocate SR.No.18457
+1cc to Mr.IC. Vasudevan , Advocate SR.No.18171
AD(CO)
ka 24/06
C.R.P.No.2121 of 2008
15.04.2014

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https://hcservices.ecourts.gov.in/hcservices/

Ziaullah Shariff v. Saffiullah Baigh

Case brief

What is this about?

What did the court decide?

Ziaullah Shariff v. Saffiullah Baigh

Case brief

What is this about?

What did the court decide?

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