K. Kantha Rao vs Murugesa Reddy

B. Rajendran, J.—This Civil Revision Petition is directed against the order dated 12.01.2010 made in I.A. No. 60 of 2007 in O.S. No. 57

of 2003 passed by the learned Subordinate Judge, Thiruvallur, by which the application filed by the revision petitioner for condoning the delay of

703 days in filing an application to set aside the ex parte decree, was dismissed. The respondent herein, as plaintiff, has filed the suit in O.S. No.

57 of 2003 for specific performance of the agreement dated 25.04.2001 and for possession before the learned Subordinate Judge, Thiruvallur.

The suit was decreed exparte on 16.09.2003 for non-appearance of the revision petitioner/defendant. To set aside the exparte decree dated

16.09.2003, the revision petitioner has filed I.A. No. 60 of 2007 u/s 5 of the Limitation Act to condone the delay in filing the application to set

aside the exparte decree dated 16.09.2003. The trial court refused to condone the delay and dismissed the application against which the present

Civil Revision Petition is filed.

The learned counsel for the revision petitioner would contend that the court below did not take into consideration that the defendant/revision

petitioner herein was not served any notice or summons in the suit. For the first time, a notice was served on the petitioner in the Execution Petition

filed by the respondent before the District Munsif Court, Tiruttani. The learned counsel for the revision petitioner brought to the notice of this Court

that in the affidavit filed in support of I.A. No. 60 of 2007, the revision petitioner has categorically stated that he is permanently residing at

Bangalore, a chronic cardiac patient and he was advised to take complete bed rest. Therefore, according to the counsel for the revision petitioner,

immediately after receipt of the notice in the Execution Petition, the revision petitioner could not file the application to set aside the exparte decree

and therefore, the delay is neither willful nor wanton. According to the counsel for the revision petitioner, the court below, without taking note of

the above reasons assigned by the revision petitioner has summarily rejected the application thereby refused to give an opportunity to the revision

petitioner to defend the suit on merits. The learned counsel for the petitioner also would contend that the learned Subordinate Judge, Thiruvallur

has no jurisdiction to pass the impugned order and it is only the District Munsif, Tiruttani has got jurisdiction to entertain the application due to

enhancement of the pecuniary jurisdiction and therefore also, the impugned order passed by the court below is liable to be set aside.

Per contra, the learned counsel for the plaintiff/respondent would mainly contend that the petitioner has approached the Court with unclean

hands by suppressing the factum of service of notice. According to the counsel for the plaintiff/respondent, even in the suit, notice was served as

early as 06.08.2003 and this was also recorded by the court below in the impugned order. Therefore, such a contention urged on behalf of the

revision petitioner is incorrect. The learned counsel for the respondent also submits that on 12.08.2003 and 10.09.2003 the revision petitioner did

not appear and therefore, the hearing of the suit was adjourned to 16.09.2003. On 16.09.2003, due to non-appearance of the revision petitioner,

he was set exparte and an exparte decree was passed. After a long delay, the Execution Petition was filed before the District Munsif, Tiruttani.

After filing the Execution Petition, the territorial jurisdiction was enhanced and therefore the Execution Petition was transferred to the Subordinate

Judge, Thiruvallur. Even after receipt of notice in the execution petition, the revision petitioner did not file the application to set aside the exparte

decree within 30 days and it was filed with a delay of 703 days. Even in the application for condonation of delay, the petitioner did not pay batta

for a long time and therefore the application was earlier dismissed for default and it was restored at the instance of the revision petitioner by filing

I.A. No. 353 of 2009. As far as the jurisdiction of the learned Subordinate Judge, Thiruvallur is concerned, it cannot be agitated by the revision

petitioner at this point of time. The execution Petition was filed before the District Munsif Court, Tiruttani and subsequently, it stood transferred not

for want of jurisdiction but due to enhancement of pecuniary jurisdiction. At the time when the suit was filed, the Subordinate Judge, Thiruvallur

had jurisdiction to try the suit and therefore, the suit was rightly filed before the Sub Court, Thiruvallur. Later on, as per the amendments made to

the Tamil Nadu Court Fee and Suit Valuation Act, the pecuniary jurisdiction was enhanced and it was the District Munsif Court, Tiruttani which

had jurisdiction to entertain the Execution Petition. Thereafter, the Execution Petition was transferred and posted before the Sub Court, Thiruvallur.

The revision petitioner did not file an application to condone the delay before the District Munsif Court, Tiruttani but he filed it only before the

Subordinate Judge, Thiruvallur and subjected himself to the jurisdiction of the learned Subordinate Judge, Thiruvallur. In any event, the delay was

not properly explained to the satisfaction of the court below and therefore the court below rightly dismissed the application. There is no error of

jurisdiction and the learned Subordinate Judge has jurisdiction to pass the order in the application for condonation of delay.

I heard the counsel for both sides and perused the material records placed. At the outset, let me deal with the application filed by the revision

petitioner for condonation of delay and examine whether the delay was properly explained. The suit was instituted by the respondent herein before

the Sub Court, Thiruvallur for specific performance of the agreement dated 25.04.2001 and for consequential relief. In the suit, summons were

served on the defendant/revision petitioner herein on 06.08.2003, but he did not appear before the Court below when the suit was taken up for

hearing on 12.08.2003 and 10.09.2003. On 10.09.2003, the hearing was adjourned to 16.09.2003, on that date, due to non-appearance of the

defendant/revision petitioner herein, an exparte decree was passed. Therefore, as rightly pointed out by the court below, the revision petitioner has

filed a false affidavit stating as though notice was not served on him in the suit.

The revision petitioner has filed the application in I.A. No. 60 of 2007 for condonation of delay of 703 days in filing the application to set aside

the exparte decree. According to the revision petitioner, he suffered from cardiac ailment and therefore he could not file the application seeking to

condone the delay in time. In order to prove this averment, the revision petitioner has not produced any documentary evidence, much less any

record to show his ailment or any doctor certificate has been produced. The revision petitioner also did not examine any witness to substantiate the

averments made in I.A. No. 60 of 2007 and the reasons assigned for delay.

In the execution petition No. 21 of 2007, notice was served on the revision petitioner by the District Munsif Court in the year 2007. After

receipt of the notice in the execution petition, the revision petitioner did not immediately file the petition to set aside the exparte decree passed in

the suit on 16.09.2003. Rather, the revision petitioner filed application with a delay of 703 days. Even after filing this petition, the petitioner did not

take any steps to pay batta to serve notice on the other side, with the result, the application was dismissed for default on 19.06.2009. Therefore,

to restore the application in I.A. No. 60 of 2007, which was dismissed for default on 19.06.2009, the revision petitioner filed I.A. No. 353 of

2009 and it was allowed on 05.01.2010 restoring I.A. No. 60 of 2007. This is evident that the revision petitioner has successfully dragged on the

proceedings and prevented the court below from proceeding with the Execution Petition filed by the respondent herein. This is also evident that the

revision petitioner was not diligent enough in defending the suit filed against him by filing a written statement.

In so far as jurisdiction is concerned, originally, the suit was filed before the Sub Court, Thiruvallur, which has got jurisdiction to entertain the

suit. Subsequently, after amendment, the District Munsif Court, Tiruttani vested with the jurisdiction and therefore, the Execution Petition was filed

before the District Munsif Court, Tiruttani. Even the application for condonation of delay was not filed before the District Munsif Court, Tiruttani

but before the Sub Court, Tiruttani and thereby the revision petitioner subjected himself to the jurisdiction of the Sub Court, Thiruvallur without

raising any plea relating to jurisdiction. Therefore, at this stage, it is not open for the revision petitioner to raise the plea regarding the jurisdiction of

the Sub Court, Thiruvallur to pass the impugned order. In this context, it will be relevant to refer to the decision of this Court reported in

Akkammal Vs. Kullampattiyan alias Velappa Naicken and Others, wherein this Court held that when no objection as to the jurisdiction of the

court having been raised in the first instance, then the Court has to take into consideration whether the merits of the case has been affected or not.

In the present case, the question of merits of the case cannot be said to be affected in any manner. In this case, what is required to be examined is

whether the order of dismissal passed by the court below, without considering the plea of jurisdiction, has prejudiced the revision petitioner or not.

As mentioned above, the petitioner himself subjected to the jurisdiction of the Sub Court, Thiruvallur and therefore, it is not open to the petitioner

at all to raise such plea with regard to jurisdiction. In the above circumstance, I hold that the petitioner is not in any way prejudiced by passing the

impugned order by the learned Subordinate Judge, Thiruvallur inasmuch the revision petitioner himself subjected to the jurisdiction of the said

Court.

In the decision reported in Mantoo Sarkar Vs. Oriental Insurance Co. Ltd. and Others, , the Honourable Supreme Court had considered

identical question relating to jurisdiction. In that case, the appellant sustained injuries while traveling in a bus at Faridpur, Uttar Pradesh. The

appellant filed a Claim Petition in the Tribunal at Nainital. On behalf of the Corporation, the plea with regard to jurisdiction of the Tribunal was

raised by the Corporation and it was rejected by the Tribunal while awarding compensation. On appeal, the High Court reversed the order passed

by the Tribunal. On further appeal to Supreme Court, the Honourable Supreme Court held that there was no pleading raised with respect to

sufferance of prejudice by the respondents, while so, on the ground of jurisdiction, the High Court ought not to have reversed the order of the

Tribunal. In the present case also, the revision petitioner has not raised any ground with regard to prejudice and the revision petitioner subjected

himself to the jurisdiction of the Sub Court, Thiruvallur.

The learned counsel appearing for the revision petitioner relied on the decision of this Court reported in Sivabakkiyam Muthusamy Trust Vs. S.

Sivasankaran and S. Gunasekaran, wherein a plea was raised before this Court with regard to jurisdiction. This Court held that any order passed

by a Court, which has got no jurisdiction, will be a nullity. It was further held that because of the erroneous exercise of jurisdiction, the appellant

therein had lost one right of appeal to District Court and his consequential right for filing a second appeal has got extinct. This decision cannot be

made applicable to the facts of the case because, in this case, the Subordinate Judge, Thiruvallur has got jurisdiction to entertain the Execution

Petition besides that the revision petitioner himself subjected to such jurisdiction and proceeded further. Further, by the impugned order passed by

the Court below, the revision petitioner has not lost any appeal remedy. If the order in question is passed either by the Subordinate Judge,

Tiruvallur or by the District Munsif Court, Tiruttani, the only recourse available to the revision petitioner is to file a Civil Revision Petition before this

Court. Therefore, the decision relied on by the counsel for the revision petitioner cannot be made applicable to the facts of this case. For all the

above reasons, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.