Ponnuswamy vs Rengaswamy

G. Rajasuria, J.—Inveighing the dated 16.08.2007 passed by the learned Principal District Judge, Villupuram in I.A. No. 40 of 2007 in

O.S. No. 21 of 2005, this civil revision petition is focussed.

Heard both sides.

The epitome and the summation of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition

would run thus:

The respondent/plaintiff filed the suit as against the petitioner/defendant herein for specific performance of the agreement to sell. The revision

petitioner/defendant remained exparte. Whereupon, exparte decree was passed; subsequently, the petitioner filed I.A under Order IX Rule 13 r/w

Section 151 of CPC along with an application to get the delay of 4 days condoned in filing such application. Office returned those applications for

complying with certain remarks. But, there was a delay of 348 days in representing those papers. Hence, I.A. No. 40 of 2007 was filed for getting

the delay of 348 days condoned in representing the papers. It was contested by the respondent/plaintiff herein. Ultimately, the trial court dismissed

it. Whereupon, this revision is focussed on the main ground that condoning of delay in representing the papers is a matter between the court and

the petitioner and the respondent had no say in the matter. The lower court also failed to take into account that the defendant''s Advocate clerk

misplaced those papers and that the papers could be traced only after considerable delay.

Accordingly, he prays for setting aside the order of the lower court.

The learned Counsel for the revision petitioner placing reliance on the grounds of revision, would develop his argument as under:

The matter was decided exparte only once and there is nothing to show that the revision petitioner is a chronic defaulter in appearing before the

court or he was bent upon dragging the proceedings. The subsequent events are not at all germane for deciding the application, viz., I.A. No. 40 of

2007,but the lower court took into account various factors, which are not germane for considering the delay aspect involved in the matter.

By way of torpedoing and pulverising the argument as put forth on the side of the learned Counsel for the revision petitioner/defendant, the

learned Counsel for the respondent/plaintiff would set forth and put forth his arguments, the long and short of them would run thus:

a. The affidavit was not filed by the Advocate''s Clerk, who was allegedly responsible for mixing up the papers with other bundles but only the

Advocate for the defendant filed such an affidavit.

b. The court also executed the sale deed in pursuance of the decree passed in the suit and possession of the property was also obtained.

Thereafter, the plaintiff spent huge amounts in developing the property and at this stage, if the court by setting aside the exparte decree, sets the

clock back, then it will lead to lot of complications and discomfiture and for that matter, the defendant also does not deserve indulgence of this

Court in view of the defendant''s mala fide intention in selling the suit property itself for a sum of Rs. 1 lakh and odd and that too, after the filing of

the application to get the delay in representation condoned.

c. The lower court also adverted to all the bad intentions of the revision petitioner concerned and condemned his conduct in unmistakable terms,

warranting no interference by this Court in this revision.

d. This is not a simple case of merely condoning the delay of 348 days in representing the papers but the conduct of the party has to be seen and

accordingly, the defendant''s conduct does not deserve any sympathy at the hands of this court.

As such, he prays for the dismissal of the revision petition.

The points for consideration are as to:

i) Whether the delay of 348 days in representing the papers could be condoned or not? and

ii) Whether there is any infirmity in the order passed by the lower court?

Indisputably and indubitably, unassailably and unarguably, the facts are that the defendant was set exparte and an exparte decree was passed on

15.09.2005. On 19.10.2005, an application under Order IX Rule 13 along with one other application to get the delay of 4 days condoned in filing

such application, was filed; but, those applications were returned for compliance. Admittedly on 17.11.2005 itself the balance sale consideration of

Rs. 2,91,300/- was deposited by the plaintiff in the court. Only on 01.11.2006, I.A. No. 40 of 2007 was filed so as to get condoned the delay of

348 days in representation. However, after filing such application, it is a fact that on 13.12.2006, the revision petitioner sold the suit property for a

sum of Rs. 1,71,000/-. The lower court dismissed I.A. No. 40 of 2007 after hearing both sides on 16.08.2007.

The learned Counsel for the revision petitioner would point out that the Copy Application was filed on 25.08.2007 for obtaining the certified

copy of the said order passed in I.A. No. 40 of 2007 so as to enable the party to file revision; but the defendant could get the copy only on

16.11.2007 and thereafter, on 20.11.2007 CRP was filed. In the meanwhile, according to him, the court executed the sale deed in favour of the

respondent in pursuance of the said exparte decree. No doubt, there was no embargo for the court to refrain from executing such sale deed

pending filing of the revision by the party concerned. In fact, the revision petitioner should have been diligent enough to approach the trial court and

inform the court about his intention to file revision and for getting the status quo maintained. But in the absence of any express provision in CPC,

such a measure could not be by way of right resorted to also. In the case of appeal the court, which granted the decree itself can grant stay so as

to enable the party to approach higher forum and obtain stay.

Be that as it may, the facts would reveal that even before the revision petitioner could get appropriate orders in the revision the sale deed was

executed by the trial court in favour of the plaintiff.

I could see considerable force also in the submission made by the learned Counsel for the respondent/plaintiff that after presenting the CRP, on

20.11.2007, the petitioner did not take effective steps to get it numbered but it was listed only before this Court on 18.09.2008. It is also a fact

that possession of the suit property was handed over to the plaintiff on 28.01.2008 as per order in E.P. No. 11 of 2008. The learned Counsel for

the revision petitioner/defendant would submit that the exparte decree was dated 15.09.2005 but without any notice in E.P. No. 11 of 2008,

delivery was obtained and the fact is that the decree had been passed two years anterior to the filing of the EP. The delivery was virtually ordered,

when the revision petitioner was trying to get numbered the revision before this court. No doubt, that fact highlighted by the learned Counsel for the

revision petitioner also has to be considered. But I am at a loss to understand as to why the revision petitioner had not taken any steps to get the

revision numbered and obtained stay. As such, when equities are equal, law has to be applied.

Be that as it may, ultimately, it has to be seen as to whether the delay of 348 days in representation should be condoned or not?

A mere perusal of the typed set of papers would ultimately show that along with I.A. No. 40 of 2007, initially two affidavits were filed

presumably the affidavit of the defendant, viz., Ponnusamy, the revision petitioner herein and his Advocate and while representing the said

application, the affidavit of the Advocate Clerk also was filed. As such, I could see from the records that as many as three affidavits were filed in

support of I.A. No. 40 of 2007 to get the delay of 348 days condoned in representation. However, the lower court in its judgment referred to only

to the affidavit of the defendant''s Advocate Dakshinamurthy and I could see no reference to the affidavits filed by the defendant as well as the

defendant''s Advocate Clerk.

At this juncture, the learned Counsel for the petitioner would cite the decision of this Court reported in R.M. Bedi Vs. Vijayeswari Textiles

Ltd. and Federated Mercandising Group, and it would be on the point that in certain circumstances, even the affidavit of the advocate could be

taken note of. He has also cited the decision of this Court reported in (2009) 1 MLJ 1216 (Sardhar Sahi and Anr. v. Syath Jafer Sahib). As per

that decision, this Court condoned the delay of 2602 days in representing the application by differentiating and distinguishing the delay in filing the

petition with that of the delay in representing the papers.

To the risk of repetition and pleonasm, without being tautologous, I would like to point out that even as per the contention of the

respondent/plaintiff, the very same revision petitioner/defendant mortgaged the suit property in favour of the respondent/plaintiff herein twice and

borrowed money and thereafter alone the agreement to sell emerged between them on 28.01.2005. The fact also remains that only on one

occasion exparte decree was passed and it is not as though successively exparte decrees were passed due to any chronic default of the defendant.

Hence, I am of the view that one more opportunity has to be given to the revision petitioner/defendant to participate in the proceedings and

contest the matter. However, while holding so, this Court cannot lose sight of the fact that even as early as on 17.11.2005 itself, the

respondent/plaintiff deposited a sum of Rs. 2,91,300/- (Rupees two lakhs ninety one thousand and three hundred only) towards the remaining part

of the sale consideration and it is in the court; but for depositing the amount in court he would have earned interest and in the meantime, this Court

also cannot with mathematical precision calculate the bank interest so as to award the same as cost. But by way of striking a balance between the

two and taking into account the pros and cons of the matter, ie. pro et contra I would like to award a sum of Rs. 20,000/- (Rupees twenty

thousand only) payable by the revision petitioner to the respondent on or before 09.07.2010. If such deposit is not made, automatically the

revision shall stand dismissed and it will not enure to his benefit.

Accordingly the order of the lower court in I.A. No. 40 of 2007 is set aside and the delay of 348 days in representation is condoned. The

lower court is directed to proceed with the two applications, i.e. one for condoning the delay of 4 days in filing the application and the other for

getting the exparte decree set aside.

The learned Counsel for the respondent/plaintiff would make an extempore submission to the effect that as of now, the respondent/plaintiff is in

possession of the suit property and his possession might not be disturbed taking advantage of the order passed by this court.

I would like to direct that status quo shall be maintained as it is prevailing concerning the suit property, pending disposal of the proceedings

including the disposal of the suit.

The learned Counsel for the revision petitioner/defendant would submit that in the event of the revision petitioner ultimately succeeding in the

suit proceedings, the property should be redelivered to him and it goes without saying that such a measure is acceptable and accordingly, it is

ordered.

With the above direction, this civil revision petition is disposed of. No costs.