Prema and A. Sridharan vs Murugesan

R.S. Ramanathan

The defendants in O.S.No.26 of 2006 on the file of Sub Court, Kallakurichi are the revision petitioners. The respondent/plaintiff filed the above

suit for specific performance of an Agreement of Sale executed by the petitioners on 12.02.2004. In the above suit, the 2nd revision petitioner

entered appearance through counsel and the 1st revision petitioner did not appear and the 1st revision petitioner was set exparte and the 2nd

revision petitioner filed statement and when the case was posted for trial, the counsel appearing for 2nd revision petitioner reported no instructions

and an exparte decree was passed on 06.08.2008.

Thereafter, the respondent/plaintiff filed E.P. to execute the Sale Deed in E.P.No.82 of 2008 and summons in E.P.No.82 of 2008 was served

on the 1st revision petitioner on 07.11.2008 and on the 2nd revision petitioner on 05.12.2008 and both the revision petitioners engaged different

lawyers and after getting various adjournments, they failed to file the counter and therefore, they were set exparte on 28.04.2009 and Sale Deed

was executed by the Court on 01.07.2009 and registered the same on 03.07.2009. Thereafter, the revision petitioners filed I.A. 291 of 2009 u/s 5

of the Limitation Act to condone the delay of 352 days in filing the application to set aside the exparte decree and that application was dismissed

and as against the same, this revision is filed.

It is submitted by the learned counsel for the revision petitioners Mr. S.Kaithamalai Kumaran that the revision petitioners are mother and son

and they entrusted the case to Mr. Anbunithi and he stopped practice in the year 2008 and he failed to appear for the 1st revision petitioner and

filed vakalat for the 2nd revision petitioner and after filing written statement, she did not inform the 2nd revision petitioner who was conducting the

case and therefore they were not aware of the exparte decree passed against them and on coming to know the same, they filed the application to

condone the delay and therefore, the delay may be condoned and they are prepared to pay heavy cost and also deposit the stamp duty paid by the

respondent in getting the document registered pursuant to the decree and one more prayer to give provision to conduct the suit on merits.

On the other hand, the learned counsel for the respondent submitted that the Court below rightly dismissed the application to condone the delay

and found that the revision petitioners were aware of the exparte decree passed against them and they deliberately kept quite and the respondent

has spent nearly Rs.1,70,000/-towards stamp duty while registering the Sale Deed and on coming to know of the Sale Deed executed by the

Court pursuant to the decree passed in O.S.No.26 of 2006 on 01.07.2009, the revision petitioners in utter disregard, executed another Sale Deed

in favour of the third party on 21.07.2009 and the conduct of the revision petitioners would prove that they have no respect for law and without

filing an application to set aside the exparte decree, they sold the property to third party and therefore, the Court below rightly dismissed the

application after taking into consideration of all these facts and the order of the lower court does not call for any interference. They also relied upon

the judgment of the Hon''ble Supreme Court reported in Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, support of his

contention.

Heard both sides. It is admitted that during trial, the 1st revision petitioner was set exparte and the 2nd revision petitioner contested the suit by

filing statement and thereafter did not prosecute the same. The revision petitioners examined the Advocate who appeared for the 2nd revision

petitioner during trial and the said Advocate has deposed that he informed revision petitioners about the exparte decree passed against them and

the 2nd revision petitioner did not want to set aside the exparte decree and thereafter, he left the profession and was not aware of the further

development.

Further, after the exparte decree passed on 06.08.2008, the respondent filed E.P. In E.P.82 of 2008 on 18.08.2008 to execute the decree

passed in O.S.No.26 of 2006 and in that application, the 1st revision petitioner appeared through counsel on 07.11.2008 and the 2nd revision

petitioner appeared through counsel on 05.12.2008. The revision petitioners did not file counter and therefore, they were set exparte in E.P.82 of

2008 on 28.04.2009 and E.P. was allowed and stamp papers were deposited on 18.06.2009 and Sale Deed was executed by the Court on

01.07.2009 and registered on 03.07.2009.

It is further seen from the typed set filed by the respondent that on 21.07.2009, the revision petitioners executed a Sale Deed in favour of third

party in respect of the very same property which is the subject matter of the suit in O.S.No.26 of 2009. Even after entering appearance in E.P. 82

of 2008 on 05.12.2008, no attempt was made by the revision petitioners to set aside the exparte decree passed in O.S.No.26 of 2006 and the

application to condone the delay was filed only on 24.07.2009 and absolutely no explanation was given by the revision petitioners for keeping

quiet from December 2008 to June 2009.

Further, the conduct of the revision petitioners in executing the Sale Deed on 21.07.2009 to third party would also make clear that there is no

bonafide on the part of the revision petitioners in coming to the Court to set aside the exparte decree. In this connection, the observation of the

Hon''ble Supreme Court reported in Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, and Others is relevant. Paragraph 22 of the

decision reads as under:

22.The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by

this Court in the case of Balwant Singh (supra), as follows:

25.We may state that even if the term ""sufficient cause"" has to receive liberal construction, it must squarely fall within the concept of reasonable

time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of

reasonableness"" as it is understood in its general connotation.

The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be

adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one

party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take

away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party.

Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in

implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of

his acting vigilantly.

According to me having regard to the facts stated above, the revision petitioners have no regard for the law and even after coming to know of

the decree passed against them, they have sold the property to third party without taking any steps to set aside the exparte decree.

The court below considered all these aspects and rightly dismissed the application filed by the revision petitioners and I do not find any reason

to interfere with the order of the court below and the order of the court below is confirmed and the civil revision petition is dismissed. No costs.

Consequently, the connected miscellaneous petition is also closed.