Kuppan alias Durai and I. Navaneetharani vs A.N. Annamalai and D. Mohan

P. Jyothimani, J.—The Plaintiffs in the suit are the revision petitioners. The plaintiffs filed the suit in O.S.No.191 of 1998 on the file of the

District Munsif, Poonamallee praying for a decree for permanent injunction against the respondents who are the defendants in the suit from

transferring and selling the suit land to any third parties while the agreement of sale stated to have been entered by the 1st defendant as a power

agent of the 2nd defendant and the plaintiffs dated 29.11.1996 is subsisting.

The first defendant who is stated to be the power agent of the second defendant has filed written statement on 10.08.2005.

The plaintiffs filed application in I.A.No.596 of 1998 for interim injunction which was dismissed on 03.08.1998 by the trial court observing that

the suit is not maintainable since the suit is filed based on an agreement for sale. Subsequently, the suit filed by the plaintiffs was dismissed for

default on 26.11.2002. The plaintiffs have filed an application in I.A.No.2522 of 2002 under Order 9 Rule 9 CPC for restoration of the suit which

was dismissed on 26.11.2002. In that application, it is seen that the Court has made an endorsement on 02.12.2002 which reads as follows:

Proof affidavit filed, heard and allowed

Even though the said order states that as proof affidavit has been filed, the learned Counsel appearing for the petitioners/plaintiffs would submit that

the proof affidavit mentioned by the trail court relates to the proof affidavit filed in the suit by the plaintiffs as evidence and not proof showing

service of application in I.A.No.2522 of 2002 in O.S.No.191 of 1998 to the respondents herein who are the defendants.

Therefore, it is clear that the learned trial judge while taking up application in I.A.No.2522 of 2002 filed by the plaintiffs for restoration of the

suit and to set aside the exparte order dated 26.11.2002, on 02.12.2002 allowed the same and on the same date received the proof affidavit from

the plaintiffs and passed a decree in favour of the plaintiffs. It is relevant to point out that Order 9 Rule 9 which reads as follows:

Order 9,Rule 9: Decree against plaintiff by default bars fresh suit-

(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of

action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance

when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it

thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

(3) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under this rule.

As per the mandatory requirement of Order 9 Rule 9(2) of C.P.C. any order for restoration of the suit should be passed unless notice of the

application has been served on the opposite party. Therefore on the face of it, the order passed by the learned trial Judge in not following the

mandatory provisions of Order 9 Rule 9(2) of C.P.C. is illegal and it is unfortunate that the learned judge failed to refer to the provisions of law

while dealing with an application under Order 9 Rule 9 CPC.

Further according to the second respondent, the plaintiffs have filed another suit in O.S.No.211 of 2005 for specific performance of the

agreement dated 29.11.1996. According to the second respondent herein he has received a notice in the said suit on 08.06.06 and thereafter he

has filed an application in I.A.No.1198 of 2006 for condoning the delay of 1273 days in filing the application to set aside the exparte decree

passed against the defendants on 02.12.2002. According to the applicant in I.A. No.1198 of 2006 who is the second respondent, since the

knowledge of the exparte decree passed against him on 02.12.2002 came to be known to him only on 08.06.2006 he has filed the application

within 30 days namely 28.06.2006. Even though there is no necessity for filing application to condone the delay, as soon as the knowledge of the

order on 08.06.2006 and since summons were served on 08.06.2006 of the learned trial judge dated 02.12.2002, this application came to be

filed to condone the delay as a matter of abundant caution, the said application was filed. The respondents have filed counter affidavit. According

to the petitioners/ plaintiffs the delay has not been explained properly. It is their contention that the second suit filed in O.S.No.211 of 2005 was of

the year 2005 and notice has been served on the defendants who are the respondents herein in 2005 itself and therefore, the respondents are

bound to explain the delay between 2005 and 2006.

Mr.S.D.N.Vimalanathan, learned Counsel appearing for the petitioners would state that the order of the trial court dated 02.12.2002, was

taken out for restoring the suit and on the same date the trial court passed exparte decree based on the proof affidavit filed by the plaintiffs stating

that as per Order 9 Rule 4 of CPC such a notice to the other side is not necessary. But reference to Order 9 Rule 4 says that it is applicable only

in respect of cases dismissed under Order 9 Rules 2 or 3. Order 9 Rule 2 reads as follows:

Order 9 Rule 2: Dismissal of suit where summons not served in consequence of plaintiff''s failure to pay costs:- Where on the day so fixed it is

found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges,

if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may make an order that

the suit be dismissed;

Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to

appear by agent on the day fixed for him to appear and answer. likewise Order 9 Rule 3 states that where neither party appears, suit has to be

dismissed.

Order 9 Rule 3. Where neither party appears, suit to be dismissed:

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

It is only under these two cases the plaintiff can file a fresh suit or apply for an order to set aside the dismissal. Order 9 Rule 4 states as follows:

Order 9 Rule 4: Plaintiff may bring fresh suit or Court may restore suit to file:

Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order

to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for (such failure as is referred to in rule 2), or for his non-

appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

(emphasis supplied)

However Order 9 Rule 9 as enumerated above states in Clause (2) that no order to restore the suit can be passed unless notice of the

application has been served on the opposite party. Therefore the contention of the learned Counsel appearing for the revision petitioner that the

order of the learned trial judge dated 02.12.2006 is saved by Order 9 Rule 4 is a misnomer. It is a clear case where the learned judge failed to

follow the procedure established under the CPC which in my considered view is a mandatory requirement. Simply because the defendants

remained exparte at an earlier date, It does not mean that the court should bypass the provision of the Act especially when Order 9 Rule 9(2)

mandates service of notice to the other side. It is certainly illegal on the part of the trial court to allow the said application filed by the plaintiff to

restore the suit, which was dismissed for default without notice to the other side. In view of the said fact, I have no hesitation to come to the

conclusion that the earlier order passed by the learned trial judge on 02.12.2002 has no legal basis and would not stand to the scrutiny of law.

Now coming to the petition filed by the second respondent in condoning the delay, there is absolutely no difficulty to come to the conclusion that

only after the date of knowledge about the second suit filed by the petitioners in O.S.No.211 of 2005 the defendants have knowledge and

explained delay. The second respondent is certainly saved from the period of limitation when it is stated the second respondent not having

knowledge about the passing of the exparte decree by the trial court till notice received in O.S.No.211 of 2005.

Mr.S.D.N.Vimalanathan, learned Counsel appearing for the revision petitioners would submit that if that be so, there is no necessity for the

second respondent for filing an application to condone the delay and according to him the receipt of summons in O.S.No.211 of 2005 by the

second respondent herein was not on 08.06.2006 but it was on 08.06.2005. According to him from the fact that the first defendant who is the

power agent of the second defendant has filed written statement as early as on October 2005, it should be construed that the notice was received

by the second respondent on 08.06.2005 itself and therefore the second respondent has failed to explain the delay from 08.06.2005 to

28.05.2006. The reference to the order passed by the learned judge in the application for condoning the delay shows that the learned judge has

allowed the application on payment of cost of Rs.300/- to the other side and on that basis the application came to be allowed and it is this order

which is challenged by the plaintiffs in this revision petition.

The first aspect to be considered in this case is the conduct of the petitioners/plaintiffs who came to this Court and who deliberately not taken

steps to serve notice on the other side in the application to restore the suit dismissed for default which is against the mandatory provisions of Order

9 Rule 9(2) of CPC. In my considered view the revision petitioners/plaintiffs have not come to this Court with clean hands.

As far as the delay from 08.06.2005 to till the date of filing of the application on 28.05.2006, Mr.M.S.Govindarajan, learned Counsel

appearing for the second respondent would rely upon the Judgment of this Court reported in Krishnamoorthy Vs. Parasuraman, Yashoda,

Jayalakshmi and Saroja, wherein this Court by relying upon the Judgment of the Hon''ble Apex Court rendered in N. Balakrishnan Vs. M.

Krishnamurthy, held that for deciding a plea u/s 5 of the Limitation Act, for condonation of delay, even though it is discretionary, it is not the length

of delay which matters but acceptability of explanation is the criteria to be followed. In fact the Hon''ble Supreme Court in the above said case has

held that the civil court while adjudicating the dispute between the parties, to advance substantial justice and the rule of limitation are not meant to

destroy the right of the parties, since the same is founded on the principles of public policy. The relevant portion of the judgment of the Hon''ble

Apex Court in this regard is as follows:

Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek

their remedy promptly. The object of providing a legal remedy is to repair the damages caused by reason of legal injury. The law of limitation fixes

a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the

efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be

fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of

limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period

be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory

tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."" Therefore, it

is clear that in the application for condoning the delay, every day has to be explained but the Court ought to keep in mind the substantial justice to

be rendered to the parties. In this case, the subsequent development and limitation to be considered. It is seen that while the trial court has

dismissed the application in I.A.No.596 of 1998 for interim injunction, it has clearly held that the suit for bare injunction is not maintainable

especially when the suit for bare injunction was filed based on the agreement of sale dated 29.11.1996. It appears that the plaintiff has filed another

suit in S.R. No.13110 of 1996 for specific performance and it is not dispute that the suit was subsequently not represented and a fresh suit was

ultimately filed in 2005 only. The plaintiff filed the suit in O.S.No.211 of 2005 for specific performance and that suit stands transferred to the

District Court, Thiruvallur and renumbered as O.S.No.40 of 2006. In view of the attempt of the plaintiff in referring to various remedies based on

the earlier orders of dismissal of I.As., I am of the considered view that this is not the case wherein strict principle of limitation has to be applied to

the detrimental of the defendants in the suit. The contentions raised by Mr.S.D.N.Vimalanathan, after all these suits for specific performance is

pending and therefore the defence is always open to the respondents herein in the said suit for specific performance is not tenable, mainly because

another suit filed does not take away the right of the defendants in the earlier suit especially on the facts and circumstances which is enumerated

above.

In view of the same, the order of the learned trial judge is modified. Accordingly the order in the application to condone the delay in filing the

application for setting aside the exparte decree dated 02.12.2002 is modified and the second respondent is directed to pay a cost of Rs.2,500/- to

the revision petitioners within a period of two weeks from the date of receipt of a copy of this order. The trial court is directed to pass further

orders in the application to set aside the exparte order and take up the suit on the file and decide the same expeditiously in accordance with law. It

is made clear that if the amount stated above is not paid within the period stipulated above, the revision will stand allowed and the order of the

learned trial judge dated 30.11.06 will stand set aside. Consequently the connected M.Ps. are closed.