Mohamed Umaray Barook vs Alimal Beevi

M. Duraiswamy, J.—The civil revision petition arises against the fair and final orders passed in I.A. No. 8 of 2012 in O.S. No. 43 of 2006 on the file of the IV Additional District Judge, Tirunelveli.

The Plaintiffs filed the suit in O.S. No. 43 of 2006 for specific performance. After the filing of the written statement, since the plaintiffs remained absent, the suit was dismissed for default on 04.01.2011. Thereafter, the plaintiffs filed an application in I.A. No. 8 of 2012 to restore the suit, which was dismissed for default on 04.01.2011. In paragraph 2 of the affidavit filed in support of the application, the plaintiffs have stated that the intimation sent to them by their counsel was not received by them, hence, they could not contact their counsel and therefore, there is a delay of 248 days in filing the application to restore the suit. The said application was contested by the defendants stating that the plaintiffs have not given any acceptable reason for condoning the delay of 248 days.

The Trial Court after taking into consideration the case of both parties found that the plaintiffs have not explained the reasons for the delay in a proper manner. In spite of the finding that the plaintiffs have not explained the reasons for the delay, the Trial Court allowed the application. Aggrieved over the same, the defendants have filed the above civil revision petition.

Heard Mrs. N. Krishnaveni, learned counsel appearing for the revision petitioners and Mr. H. Arumugam, learned counsel appearing for the respondents.

The learned counsel for the petitioners submitted that when the Trial Court had found that the plaintiffs have not explained the reasons for the delay in a proper manner, the Trial Court ought not have allowed the application. The learned counsel in support of her contention, relied upon the judgment reported in Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, , wherein the Apex Court held that when there is no sufficient cause for condoning the delay and in spite of the same, the delay is condoned, it is a case of discretion not being exercised judicially. Therefore, the order condoning the delay is vulnerable and susceptible for correction by the superior Court.

Countering the submissions made by the learned counsel for the petitioners, the learned counsel for the respondents submitted that the revision petitioners herein filed another suit in O.S. No. 68 of 2010 on the file of the IV Additional District Court, Tirunelveli, for recovery of arrears of rent as against the respondents. The said suit was decreed ex parte and the respondents herein filed an application in I.A. No. 5 of 2012 to set aside the ex parte decree with the same set of facts as stated in I.A. No. 8 of 2012 and that the Trial Court though given a finding that the respondents have not explained the reasons in a proper manner, allowed the application and that the revision petitioners have not challenged the said order, which according to the learned counsel for the respondents operate as res judicata against the revision petitioners herein. Further, the learned counsel for the respondents submitted that the revision petitioners having not filed any revision as against the order passed in the application in I.A. No. 5 of 2012 in O.S. No. 68 of 2010, they are estopped from questioning the order passed in I.A. No. 8 of 2012. In support of his contention the learned counsel relied on the following judgments;-

i) Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another, , wherein the Hon''ble Apex Court held that a finding given by the Court shall operate as res judicata in respect of the very same issue involved in the proceedings.

ii) Dr. Subramanian Swamy Vs. State of Tamil Nadu and Others, , wherein the Hon''ble Apex Court held that even an erroneous order shall operate as res judicata in the subsequent proceedings.

iii) Bhanu Kumar Jain Vs. Archana Kumar and Another, , wherein the Hon''ble Apex Court held that res judicata applies not only in separate proceedings but also to subsequent stage of same proceedings.

On a careful consideration of the materials available on record, and the submissions made by the learned counsel on either side, it could be seen that the Trial Court had condoned the delay of 248 days though given a finding that the plaintiffs have not satisfactorily explained the reasons for the delay. For allowing the application, the Trial Court took into consideration the order passed in I.A. No. 5 of 2012 in O.S. No. 68 of 2010, wherein delay of 248 days in filing the petition to set aside the ex parte decree was allowed, though there was no sufficient reasons given by the defendants therein. The plaintiffs in the present suit are the defendants in O.S. No. 68 of 2010.

The Apex Court in the judgment reported in Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, , held that when there is no sufficient cause for condoning the delay, in spite of the same, if the delay is condoned, it is a discretion not being exercised judicially and that the order condoning the delay is vulnerable and susceptible for correction by the Superior Court. The ratio laid down in the said judgment is squarely applicable to the facts and circumstances of the present case.

On a reading of the affidavit filed in support of the present application, it is clear that the plaintiffs have not given any reasons for condoning the delay of 248 days. The affidavit is bald and bereft of particulars. They simply say that the suit was dismissed for default on 04.01.2011 and that they did not receive any communication from their counsel and hence, there is a delay on 248 days.

The Trial Court, while allowing the application also observed that the suit was filed in the year 2006 and that the revision petitioners, who are the defendants in the suit, are aged 60 years and above and therefore, in the interest of justice, the Trial Court had allowed the application. It is pertinent to note that the application to condone the delay was filed by the plaintiffs, but while condoning the delay, the Trial Court took into consideration the age of the defendants and held that in the interest of justice and for the interest of the defendants, the application has to be allowed. The order passed by the Trial Court is totally erroneous and it cannot be supported by any means.

Further the Trial Court held that since the application filed I.A. No. 5 of 2012 in O.S. No. 68 of 2010 was allowed, the Trial Court is allowing the present application on payment of costs. It is also brought to the notice of this Court that the application in I.A. No. 5 of 2012 in O.S. No. 68 of 2010 was allowed on the same set of facts with the same finding. Unfortunately, the revision petitioners have not challenged the order passed in I.A. No. 5 of 2012 in O.S. No. 68 of 2010. Further, the learned counsel on either side submitted that as against judgment and decree passed in O.S. No. 68 of 2010, the respondents have filed first appeal, which is pending before this Court.

In the judgments relied upon by the learned counsel for the respondents, the principles of res judicata and estoppel were considered in a singular proceedings. In the case on hand, the present suit i.e. O.S. No. 43 of 2006 was filed for the relief of specific performance and O.S. No. 68 of 2010 was filed for recovery of money. If the Trial Court had allowed the application filed in I.A. No. 5 of 2012 in O.S. No. 68 of 2010 finding that the respondents have satisfactorily explained the reasons for condoning the delay of 248 days, then the finding given by the Trial Court in that suit would operate as res judicata in the present application and it will also operate as estoppel as against the revision petitioners if they had not challenged the said finding before this Court. But, in the case on hand in both the applications in spite of no acceptable reason was given by the respondents, the Trial Court erroneously allowed both the applications. Finding of the Trial Court is against the principles laid down by the Hon''ble Apex Court in the judgment reported in Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, .

For condoning the delay there is no necessity for taking into consideration the age of the other side. In the case on hand, the Trial Court while allowing the application taking into consideration the age of the revision petitioners and held that for their interest the application is being allowed. The age of the revision petitioners is immaterial for condoning the delay in the application filed by the respondents. Without giving any proper reason, the Trial Court had erroneously allowed the application, which cannot be supported by any means whatsoever.

In these circumstances, I am of the view that the principle of res judicata shall not apply to the facts of the present case and the ratio laid down in the judgment relied on by the learned counsel for the respondents are not applicable to the facts and circumstances of the present case. The judgment relied upon by the learned counsel for the revision petitioners squarely applies to the facts and circumstances of the present case.

The fair and final orders passed in I.A. No. 8 of 2012 in O.S. NO. 43 of 2006 are liable to be set aside and accordingly, they are set aside. The civil revision petition stands allowed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.