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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DURAISWAMY, J.
S.Leelavathi – Petitioner
Versus
K.Subramaniam – Respondent
C.R.P.(NPD).No.175 of 2016 and C.M.P.No.911 of 2016
Decided On : 20-10-2016
CIVIL REVISION PETITION - ORDER IX RULE 13 CPC - CONDONATION OF DELAY - SUFFICIENT CAUSE - SERVICE OF SUMMONS - EX PARTE DECREE - SETTING ASIDE - LIMITATION - SECTION 5 OF THE LIMITATION ACT - INTERPRETATION - PURPOSE OF LIMITATION ACT - JUDICIAL DISCRETION - EVIDENCE - BURDEN OF PROOF - AFFIDAVITS - ADMISSIBILITY - CROSS-EXAMINATION - SUFFICIENCY OF EVIDENCE - DELAY IN FILING APPLICATION - EXPLANATION - KNOWLEDGE OF DECREE - ONUS OF PROOF - MERITS OF SUIT - RELEVANCE - POWER OF ATTORNEY - EXECUTION OF SALE AGREEMENT - IDENTIFICATION OF PARTIES BEFORE SUB REGISTRAR - INCONSISTENT PLEADINGS - EXECUTION PETITION - SALE DEED - RECOVERY OF POSSESSION - MISUNDERSTANDING BETWEEN PARTIES - CANCELLATION OF POWER OF ATTORNEY - DELAY IN FILING PETITION - JUSTIFICATION - DISMISSAL OF PETITION - PROPRIETY.
Fact of the Case:
The petitioner, the 1st defendant in a suit for specific performance, filed a civil revision petition challenging the order passed by the trial court dismissing her application to condone the delay of 957 days in filing an application to set aside the ex parte decree passed against her. The petitioner claimed that she was not served with the suit summons and that she came to know about the ex parte decree only on 12.04.2012, after which she immediately contacted her lawyer and verified the facts. The respondent/plaintiff contended that the petitioner was aware of the suit and the ex parte decree, as the 2nd defendant, her daughter, was residing in India and the 3rd defendant, her son, was taking care of all her affairs. The petitioner and the 3rd defendant had executed a Power of Attorney Deed in favor of the 3rd defendant, and the 3rd defendant had entered into an Agreement of Sale with the plaintiff with the consent of all the defendants.
Finding of the Court:
The court found that the petitioner failed to prove that she was not served with the suit summons or that she had sufficient cause for not appearing before the trial court. The court noted that the petitioner did not examine herself or any other witness to substantiate the averments made in the affidavit filed in support of her petition. The court also found that the petitioner's contention that she was not in talking terms with the 3rd defendant was contradicted by the fact that the 3rd defendant had identified the parties before the Sub Registrar at the time of the registration of a Sale Agreement executed by the petitioner with another person. The court further noted that the petitioner had filed the application to set aside the ex parte decree only after the plaintiff had filed an Execution Petition and the Executing Court had executed the Sale Deed in favor of the plaintiff.
Issues: 1. Whether the petitioner was served with the suit summons and had knowledge of the ex parte decree. 2. Whether the petitioner had sufficient cause for not appearing before the trial court. 3. Whether the delay of 957 days in filing the application to set aside the ex parte decree was condonable.
Ratio Decidendi: 1. The onus is on the defendant to show that the application to set aside the ex parte decree is within time and that he had knowledge of the decree within 30 days of the application. 2. An affidavit is not "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872, and can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908. 3. In order to condone the delay in filing an application to set aside an ex parte decree, the defendant must show sufficient cause for the delay. 4. The purpose of the Limitation Act is to see that parties do not resort to dilatory tactics but seek their remedy promptly. 5. The court has the discretion to condone the delay in filing an application to set aside an ex parte decree if the defendant is able to establish that the notice has not been duly served.
Final Decision: The court dismissed the civil revision petition, holding that the trial court had rightly dismissed the petitioner's application to condone the delay in filing the application to set aside the ex parte decree. The court found that the petitioner had failed to prove that she was not served with the suit summons or that she had sufficient cause for not appearing before the trial court. The court also found that the delay of 957 days in filing the application was not condonable.
Challenging the order passed in I.A.No.506 of 2014 in O.S.No.268 of 2008 on the file of the Principal District Court, Tiruppur, the 1st defendant has filed the above Civil Revision Petition.
2. The respondent/plaintiff filed the suit in O.S.No.268 of 2008 for specific performance.
3. The brief case of the petitioner/1st defendant is as follows:
Since the 1st defendant failed to appear before the trial Court, she was set ex parte and an ex parte decree was passed on 18.09.2009. Subsequently, the 1st defendant filed an application in I.A.No.506 of 2014 to condone the delay of 957 days in filing the application to set aside the ex parte decree. In the affidavit filed in support of the petition, the 1st defendant has stated that the 2nd defendant is her daughter and the 3rd defendant is her son. Further, she has stated that her daughter is in the USA for more than 14 years. In paragraph-3, the 1st defendant has stated that she did not receive any notice or summon in the suit and that she is not in the habit of reading magazines and news dailies. Further, she has stated that she did not have good understanding with her son and the son had not cared to take care of her and they have quarrels and misunderstanding frequently. She has also stated that she and her son are not in talking terms. He also wanted to grab the entire property for himself, for which she did not agree. Keeping all these in his mind, he never disclosed anything to her. The 1st defendant has stated that only on 12.04.2012, when her relative anxiously enquiry her whether she had one-third share in the property and that she had lost her property, then she immediately contacted her lawyer and verified all the facts and only then, it came to light that there is an ex parte decree on 18.09.2009. The application has been filed by the 1st defendant on 01.06.2012. In these circumstances, the 1st defendant prayed for condonation of the delay of 957 days in filing the application to set aside the ex parte decree.
4. The brief case of the respondent/plaintiff is as follows:
According to the plaintiff, the 2nd defendant was residing in India and now, residing in the USA. The 1st defendant used to stay with her daughter in the USA and majority of the days, she used to stay in her native place. The 1st defendant and 3rd defendant are residing in the same house. The defendants 1 & 2 had executed a Power of Attorney Deed in favour of the 3rd defendant. With the consent of all the defendants, the 3rd defendant and the plaintiff entered into an Agreement of Sale on 30.08.2007. Since the defendants were evading the execution of the Sale Deed in favour of the plaintiff, he issued a notice to the 3rd defendant through his lawyer. Though the 3rd defendant received the notice, he did not execute the Sale Deed in favour of the plaintiff, however, sent a reply to the plaintiff's notice. The summons sent to the defendants were served on them and an ex parte decree was passed on 18.09.2009. Having knowledge about all these things, with an idea to prolong the matter, the 1st defendant has filed the present application. The defendants 1 & 3 are in talking terms and are residing in the same house. Their relationship is also cordial. The alleged misunderstanding between the 1st defendant and the 3rd defendant is created only for the purpose of the application. The present application has been filed only after the filing of the Execution Petition in E.P.No.10 of 2012. The 1st defendant entered into a registered Sale Agreement with one Sivasubramaniam in respect of another property on 18.04.2011 and the 3rd defendant identified the executant viz., the revision petitioner before the Sub Registrar at the time of the registration of the document. In respect of the said Agreement also, a suit has been filed in O.S.No.109 of 2012 on the file of the I Additional District Court, Tiruppur for specific performance. In the said suit, the 1st defendant has stated that the 3rd defendant is taking care of a
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