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MADRAS HIGH COURT
M.V. Muralidaran, J.
N. Sengottaiyan and Anr. —Petitioners
versus
Shanmughavadivu and Ors. —Respondents
CRP(NPD)No.2161 of 2011 and M.P.No.1 of 2011
Decided on 1.11.2016
Held: Admittedly there is a delay of 1600 days in filing the set aside application, if at all the petitioners / defendants filing the petition for setting aside the exparte decree, they have to approached the Court below within the time limit. But, after 1600 days delay, they approached the Court for setting aside the exparte decree, that too after 4 years.
For the huge delay of 1600 days delay, there was no proper explanation by the petitioners/defendants 2 and 3, in fact the conduct of the defendants 2 and 3 namely petitioners herein that there was gross negligence on the part of them in depending the matter. This Court and the Hon’ble Apex Court clearly stated that it is a settled legal principle that law of limitation is founded on Public Policy not meant to destroy rights of parties, but to see that the parties do not resort to dilatory tactics. Likewise, it has been held that liberal approach in considering an Application under Section 5 of the Limitation Act should not override the substantial law of limitation and no premium can be given for lethargic attitude or utter negligence. As per the above settled legal principles in mind, if the case on hand is examined, the only answer that could be given is that the plea of the Petitioners lacks bona fide.
In my consider opinion that the parties ought to be vigilant in Court proceedings and the duty of the parties to conduct the case and contact their advocate in proper. In this case, the petitioners / defendants 2 and 3 were stated that the petitioners were approached their counsel, but they were informed that the case is pending. But it is their bounden duty for the petitioners / defendants 2 and 3 that they would appear before the Court regularly without absenting themselves and verifying about the status of the case. Therefore, the reason given by the petitioners / defendants 2 and 3 is not acceptable one and the order of dismissal passed by the learned Subordinate Judge, Bhavani, is not warranting any interference by this Court and hence this Civil Revision Petition is liable to be dismissed. (Paras 18 to 20)
Result: Revision dismissed.
M.V. Muralidaran, J.—The defendants 2 and 3 are the petitioners before this Court.
2. The case of the plaintiffs is that the first plaintiff is daughter and the second plaintiff is wife of the first defendant viz., S.N.Natarajan. The suit schedule of properties was inherited as per the partition deed dated 09.02.1987 as partitioned between the first plaintiff and the first defendant and the said property is in ancestral property. As per the above partition deed dated 09.02.1987, half of the suit schedule of property belongs to the first plaintiff and the other half of the property belongs to the first defendant. Due to the continuous drunken stage of the first defendant and to continuous request of the second plaintiff, the second plaintiff left the first defendant with the first plaintiff and living at O.Nanjangoundampalayam from 1996 onwards. From that day onwards, the first defendant is not visited the plaintiffs family and not paid any maintenance amount. In fact, the first defendant is earning from his employment and also from the agricultural Rs.5,000/- per month and the same was used for drinking as well as illegal activities. The first defendant on the corner site of the northeast for the suit schedule of property to an extent of 1450 sq. ft. has constructed house and living there and thereafter he has sold the said property along with the house on 05.05.1995 in favour of the second defendant.
3. Though the first plaintiff has believed that the first defendant had mend his way, and living with the plaintiffs but he has not maintain them. The first defendant also not chosen to take back the plaintiffs or paying maintenance to them. In fact the first defendant has not paid any single paise for the Maintenance, Education and Medical expenses and also for the Marriage expenses of the first plaintiff. Therefore, the second plaintiff, who is the wife of the first defendant, without any income, she was very much suffering from running the family. But, on the other hand, being the husband of the second plaintiff, the first defendant ought to have paid the maintenance to the first plaintiff. In fact, the first plaintiff till the attaining of the majority, the second plaintiff alone spent money for education and for family maintenance to the first plaintiff and for marriage expenses, the second plaintiff spent more than Rs.75,000/- for marriage expenses and hence the first defendant ought to have pay a sum of Rs.1,500/- per month to the second plaintiff for her maintenance and Rs.75,000/- for the marriage expenses.
4. But with an aim to cheat the second plaintiff, on 27.09.1999 the first defendant has sold 10 cents of land in the suit schedule of property in favour of the third defendant. Hence, the sale in respect of the transaction of land in favour of the third defendant is binding of the plaintiffs. Therefore, in the circumstances, on 20.11.1999, the plaintiffs has sent a lawyer notice to the defendants, but the notice sent to the first defendant is returned and the defendants 2 and 3 were received, no reply was given. Therefore, even after the receipt of the above notice, the defendants particularly, the first defendant has not come forward either to cancel the sale deed dated 27.09.1999 or paying the maintenance amount at the rate of Rs.1,500/- per month and the marriage expenses of Rs.75,000/- till date to the plaintiffs. Therefore, in the above circumstances, the plaintiffs were approached the learned Subordinate Court, Bhavani and filed the suit in O.S.No.121 of 2000 for declaration declared the sale deed dated 27.09.1999 is not valid and for partition of suit schedule of property in to two share and for maintenance at the rate of Rs.1,500/- per month to the second plaintiff.
5. On receipt of summon, the third defendant alone has filed a written statement stating that he admitted that the plaintiffs are the daughter and wife of the first defendant. But, he denied that the partition deed dated 09.02.1987 was not taken p
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