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2018 Supreme(Mad) 592
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
A.S. Joseph – Petitioner
Versus
S.R. Clara @ Rosy & Others – Respondents
C.R.P.(NPD)No. 3957 of 2010 & M.P. Nos. 1 of 2010 & 1 of 2011
Decided On : 20-02-2018
For the Petitioner:V. Subramanian, S. Sathish Rajan, Advocates.
For the Respondent:T.V. Sekar, K. Lavanyavathi, S. Ramesh, Advocates.
The main legal point established in the judgment is the importance of establishing valid reasons for condoning delay and the need for parties to approach the court with clean hands when seeking to set aside an exparte decree.
Headnote:
Delay Condonation - Civil Revision Petition - O.S.No.60 of 1999 - [PROPERTY RIGHTS] - [Limitation Act, 1963 - Section 5], [Civil Procedure Code, 1908 - Order 9 Rule 13], [Civil Procedure Code, 1908 - Order 21 Rule 90] - The court dismissed the application to condone the delay in setting aside the exparte preliminary decree, holding that the petitioner failed to establish non-service of suit summons and notice in I.A.No.1012 of 2001 and had knowledge of the proceedings, preliminary decree, and final decree. The court found that the petitioner's intention was to deprive the respondents of enjoying the fruits of the decree obtained by them. The court's decision was influenced by the provisions of the Limitation Act, 1963 and the Civil Procedure Code, 1908, particularly Order 9 Rule 13 and Order 21 Rule 90, emphasizing the importance of establishing valid reasons for condoning delay and the need for parties to approach the court with clean hands.
Fact of the Case:
The petitioner filed a petition to condone the delay in setting aside an exparte preliminary decree, claiming non-service of suit summons and lack of knowledge of the proceedings. The respondents contested, providing evidence of the petitioner's awareness of the suit proceedings and his attempts to prevent them from enjoying the decree's benefits.
Finding of the Court:
The court found that the petitioner failed to establish non-service of suit summons and notice and had knowledge of the proceedings, preliminary decree, and final decree. The court concluded that the petitioner's intention was to deprive the respondents of enjoying the fruits of the decree obtained by them.
Issues: The main issue was whether the petitioner had valid reasons to condone the delay in setting aside the exparte preliminary decree, and whether the petitioner's actions were aimed at depriving the respondents of the benefits of the decree.
Ratio Decidendi: The court's decision was based on the petitioner's failure to establish non-service of suit summons and notice, his knowledge of the proceedings, and his attempts to prevent the respondents from enjoying the decree's benefits. The court emphasized the importance of establishing valid reasons for condoning delay and the need for parties to approach the court with clean hands.
Final Decision: The Civil Revision Petition was dismissed, and the court held that there was no illegality or irregularity warranting interference with the order of the learned Judge.
1. This Civil Revision Petition is filed against the fair and decretal order dated 14.06.2010 made in I.A.No.1624 of 2007 in O.S.No.60 of 1999 on the file of the District Munsif Court, Chengalpattu.
2. The petitioner is first defendant, respondents 1 to 4 are the plaintiffs and respondents 5 to 17 are the defendants 2 to 13 in O.S.No.60 of 1999 on the file of the District Munsif Court, Chengalpattu. The respondents 1 to 4 filed the said suit for partition and to appoint an Advocate Commissioner to suggest the mode of division against the petitioner and respondents 5 to 17. The petitioner and respondents 5 to 17 did not appear and contest the said suit. An exparte preliminary decree was passed on 12.08.1999. The respondents 1 to 4 filed I.A.No.1012 of 2001 for passing of final decree. In the final decree application, the petitioner, respondents 5 and 6 did not appear. Against the 12th respondent, the application was dismissed. The respondents 7 to 11 and 13 to 16 contested the application, I.A.No.1012 of 2001 filed by the respondents 1 to 4. An Advocate Commissioner was appointed in the final decree application and final decree was passed on 09.03.2006.
3. The petitioner filed I.A.No.1624 of 2007 to condone the delay of 2856 days in filing the petition to set aside the exparte preliminary decree. According to the petitioner, the suit summons were not served on him. He is the absolute owner of the suit property. The respondents have no right/title over the suit property. The petitioner sold the suit property to one Jagadish and three others by sale deed dated 11.06.2007 bearing document No.8017 of 2007. The purchasers on 29.06.2007, demolished the old building and put up construction. At that time, the respondents 5 and 6 came to the property and claimed that the property belongs to them and purchasers have no right to put up construction. The purchasers immediately lodged a compliant with Maraimalar Nagar Police Station. The police called the petitioner and respondents 5 and 6 for enquiry. At the time of enquiry, the Sub Inspector of Police produced judgment dated 09.03.2006. On verification of the records from the Court, the petitioner came to know that an exparte preliminary decree was passed in O.S.No.60 of 1999 on 12.08.1999 and final decree was passed on 09.03.2006. Immediately, he filed the present application to condone the delay of 2856 days in filing the petition to set aside the exparte preliminary decree dated 12.08.1999.
4. The 7th respondent filed counter affidavit and denied all the averments made in the affidavit filed in support of the above application. The 7th respondent contended that the petitioner received summons and knowing fully well, he did not appear in the suit. He was set exparte on 15.03.1999 and preliminary decree was passed on 12.08.1999. The petitioner, on 11.10.2001, refused to receive the notice sent to him in I.A.No.1012 of 2001 filed by the respondents 1 to 4 for final decree. He was set exparte on 20.11.2001 and Advocate Commissioner was appointed in the said application. The Advocate Commissioner issued notice to the petitioner and others and inspected the property in the presence of all and filed his report. The petitioner did not object the said report. Further, the petitioner filed O.S.No.110 of 2007 for injunction against the respondents 6 and 7 through the same Advocate who filed the present suit O.S.No.60 of 1999 on behalf of the respondents 1 to 4 against the petitioner and other respondents. At the time of filing of the suit itself, the petitioner was aware of the preliminary decree as well as final decree. Further, the 7th respondent filed detailed written statement and counter affidavit in the application for interim injunction, setting out all the details about O.S.No.60 of 1999, preliminary decree passed on 12.08.1999 and final decree dated 09.03.2006. Pending said suit, the petitioner sold the property to third parties on 11.06.2007. Subsequently, the petitioner withdrew
