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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
The Tamil Radhasoami Satsang Assn., Rep. by Madras Branch Secretary, Chennai – Appellant
Versus
The Sports Development Authority of Tamil Nadu rep. by Member Secretary, Chennai - Respondent
C.R.P.(NPD). No. 3445 of 2015 & M.P. No. 1 of 2015
Decided on : 20-09-2021
Limitation Act - Section 5 - Perpetual injunction and mandatory injunction - Counter affidavit - Suit is for mandatory injunction - Respondent he filed written statement and suit was decreed exparte earlier and set aside petition was filed during period of predecessors through the earlier counse - Respondent was under impression that set aside petition was pending - There was change of officers and counsel and there was no proper communication in matter - Petitioner filed E.P. and only after receipt of notice in E.P., the respondent came to know about exparte decree passed in the suit delay is neither wilful nor wanton and prayed for allowing the I.A - petitioner herein filed counter affidavit and submitted that reason given by respondent is not genuine and it is unbelievable that respondent was under the impression that earlier petition filed to set aside previous exparte decree was pending years together - respondent has not stated when the respondent received notice in the E.P. and when they entered appearance – Held, Respondent has not explained as to why they have not filed the present I.A. immediately after receiving notice and entering appearance in the E.P. In the judgments relied on by learned counsel for petitioner Hon'ble Apex Court has categorically held that administrative reason given by officials of the Government or Government Organisations cannot be accepted as valid reason - Hon'ble Apex Court has held that law of Limitation applies to all including Government and Government Organisations - Ratio in the said judgment is squarely applicable to facts of present case - Respondent has not taken any steps even after 6 months of knowing about the exparte decree, when they received notice in E.P - Learned Judge considering materials placed before her, held that respondent has not given sufficient reason to condone the delay and the delay is not satisfactorily explained. Having held so - Respondent was not vigilant enough to follow up case and reason given by respondent for condoning the delay is not acceptable - Learned Judge has committed an error by allowing the I.A - Petition is allowed
1. This Civil Revision Petition is filed against the fair and decretal order dated 20.04.2015 made in I.A.No.97 of 2014 in O.S.No.11071 of 2010 on the file of the XVII Additional City Civil Court, Chennai.
2. The petitioner who is the plaintiff in O.S.No.11071 of 2010 on the file of the XVII Additional City Civil Court, Chennai, filed the said suit against the respondent for perpetual injunction and mandatory injunction. The respondent remained exparte and exparte decree was passed on 29.02.2012 in O.S.No.11071 of 2010. The respondent filed I.A.No.97 of 2014 to condone the delay of 873 days in filing the petition to set aside the exparte decree.
3. According to the respondent, he filed written statement and the suit was decreed exparte earlier and the set aside petition was filed during the period of predecessors through the earlier counsel. The respondent was under the impression that set aside petition was pending. Meanwhile, there was change of officers and counsel and there was no proper communication in the matter. The petitioner filed E.P. and only after receipt of notice in the E.P., the respondent came to know about the exparte decree passed in the suit on 29.02.2012. The delay is neither wilful nor wanton and prayed for allowing the I.A.
4. The petitioner herein filed counter affidavit and submitted that the reason given by the respondent is not genuine and it is unbelievable that the respondent was under the impression that earlier petition filed to set aside the previous exparte decree was pending years together. The respondent has not given any details of change of officers and details of the previous persons who handled the matter. Further, the respondent has not stated when the respondent received notice in the E.P. and when they entered appearance. Even after taking number of adjournments after entering appearance in the E.P., they did not file counter. After six months of entering appearance in the E.P., they have filed the present petition. The reason given by the respondent is not valid and prayed for dismissal of the application.
5. The learned Judge considering the averments in the affidavit and counter affidavit, allowed the I.A. on payment of cost of Rs.5,000/- (Rupees Five Thousand Only).
6. Against the said order dated 20.04.2015 made in I.A.No.97 of 2014, the petitioner has come out with the present Civil Revision Petition.
7. The learned counsel appearing for the petitioner reiterated the averments in the counter affidavit and submitted that respondent was continuously negligent and delay was condoned by showing sympathy to the respondent. According to the respondent, they came to know about the exparte decree after receiving notice in the E.P. proceedings. Notice in the E.P. proceedings was served on the respondent on 24.01.2014, but, the respondent filed the present I.A. only on 22.07.2014, after 6 months of knowledge. The learned Judge having held that reason given by the respondent is not sufficient and acceptable, erroneously allowed the I.A., holding that relief claimed in the suit is for mandatory injunction and also the respondent is an organised body. The finding of the learned Judge is illegal and contrary to the judgment of the Hon'ble Apex Court and this Court. The learned counsel in support of his contention, relied on the following judgments and prayed for setting aside the order of the learned Judge passed in I.A.No.97 of 2014 and for allowing this Civil Revision Petition.
(i)A Division Bench judgment of the Hon'ble Apex Court reported in 2012 (3) SCC 563, (Office of the Chief Post Master General & Others Vs. Living Media India Limited & Another), wherein, the Hon'ble Apex Court in paragraph Nos.12 & 13, has held as follows:
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