P.R.R. Ramasamy vs P.R.R. Jeyaraj

R.S. Ramanathan, J.—Heard both sides

O.S. No. 3 of 2008, on the file of the Sub Court, Kovilpatti, was filed by the respondent herein for partition of the suit properties and the revision petitioner was the first defendant in the suit.

He was set ex-parte and preliminary decree was passed on 30.08.2006 and final decree proceedings were initiated and summons in the final decree proceedings was served on the first defendant viz., the revision petitioner herein on 26.12.2006 and final decree was passed on 02.06.2008. Mean-while, on 24.05.2008, the revision petitioner herein filed application to condone the delay of 632 of days in filing the application to set aside the ex-parte preliminary decree passed on 30.08.2006. In that petition, it has been stated that he and his brothers son and first defendant entered appearance through common counsel and he is residing in Chennai along with in son and due to old age and due to his physical condition, he was not able to monitor the case and he was under the impression that the first defendant was taking proper care of the case and he also contacted his counsel and the counsel also informed him that his interest would be taken proper care and only in 2007, he came to know that preliminary decree was passed against him in that suit and immediately, he contacted his counsel and there was no proper reply. During last week in June 2009, he came to Kovilpatti, and came to know that with an intention to usurp the trust property, that property was shown as suit property and the 2nd defendant also remained ex-parte and thereafter, the 2nd defendant alone filed application to set aside the ex-parte order passed against him and thereafter, he took steps to set aside the ex-parte decree passed against him and in that process, that happens to be a delay of 622 days and that has to be condoned. The application was stoutly opposed by the plaintiff and lower Court held that the revision petitioner was fully aware of the preliminary decree and final decree and the delay was not properly explained and he has also received the summons in the final decree application on 26.12.2006 and he was aware of the final decree proceedings, which was posted on 09.1.2007 and despite the same, he has not taken any steps to set aside the ex-parte preliminary decree immediately and the story now stated by the revision petitioner that he came to know about the ex-parte decree passed against him through his sister cannot be accepted and dismissed the application. Against that, this civil revision petition is filed by the first defendant.

Mr. Anand Chandrasekar, the learned Counsel appearing for the revision petitioner submitted that the trust properties are included in the suit schedule as if the properties belonging to the plaintiff and the defendants 1 and 2 and the plaintiff under the guise of decree is trying to sell the trust property and therefore, the decree is liable to be set aside and the revision petitioner is very old, he believed the 2nd defendant, who is his brother''s son and the lower Court counsel in collusion with the 2nd defendant allowed the passing of the preliminary decree and the revision petitioner was not aware of the preliminary decree and therefore, the delay has been properly examined and no prejudice would be caused to the respondent if the decree is set aside.

The learned Counsel appearing for the revision petitioner relied upon the judgment of the Honourable Supreme Court reported in 1999 AIR SC 114, in the case of Rajan Rai Vs. State of Bihar, in the case of Smt. Muthammal Vs. Gurunathan and others, , in the case of Tmt. Muthammal v. Gurunathan and Ors. and in 2007 (4) CC 449, in the case of Arul Alexander Lakshman, Proprietor, Alraj Builders v. A.P. Vedavalli, in support of his contention.

Per contra, the learned Counsel appearing for the first respondent/plaintiff, Mr. S. Ponsenthil Kumaran submitted that even according to the revision petitioner and as per the affidavit filed in support of this petition, he came to know of the ex-parte preliminary decree passed in the month of July 2007 and the application was filed only on 24.05.2008 and the reasons stated for the delay from July 2007 to December 2008 is not properly explained. He further submitted that the revision petitioner has sent notices to the 2nd defendant and his counsel even on 04.10.2007 and even thereafter, he has not chosen to file the application to condone the delay and the final decree proceedings was served on him on 26.12.2006 and therefore, he was aware of the passing of the final decree even in the year 2007 and having kept quite for more than two years, he is not entitled to any indulgence and the trial Court has rightly dismissed the petition. He also relied upon the Division Bench judgment of this Court reported in 2003 (1) LW 585, in the case of Sundar Gnanaolivu, rep. by his Power of Attorney Agent Mr. Rukumini v. Rajendran Gnanavolvu Rep. by its Power of Attorney Agent Veina Gnanavolivu and submitted that in this case also, the revision petitioner has not come to the Court with clean hands and has sworn to false affidavit and therefore, he is not entitled to the relief prayed for.

I have given my anxious consideration to the submissions made by both parties.

Admittedly, the revision petitioner, was the first defendant represented by counsel and both the revision petitioner and the 2nd defendant were re-presented by the same counsel and preliminary decree was passed on 30.08.2006. The final decree summons were served on the revision petitioner on 26.12.2006 informing that final decree application will be taken up on 09.1.2007. Therefore, the revision petitioner is aware of the passing of the preliminary decree even in December 2006 and therefore, the story now stated in the application that in July 2007 he was informed by his sister, who is also a party to the proceedings about the passing of the preliminary decree cannot be accepted. Further, on 04.10.2007, he sent a notice to the counsel, who appeared for him and questioned him why he has not informed about the passing of preliminary decree and he questioned the proprietary of the counsel in appearing for him in the final decree application and without going into the merits of the contention raised by him in the notice, it is made clear that he was aware of the passing of the preliminary decree even before 04.10.2007. But no explanation was given by him, for not taking steps to set aside the preliminary decree immediately thereafter.

In this case, we are concerned only with the reasons stated for condonation of delay. As stated supra, even in December 2006, he was aware of the passing of the preliminary decree and he has not taken any steps to set aside the ex-parte decree. The reason for not taking steps to set aside the preliminary decree cannot be accepted as he is not an ordinary man without any knowledge about the Court proceedings. He is a man of wordly knowledge and in the notice, dated 04.10.2007, he has also charged the counsel, who appeared for him and also has taken proceedings against the said counsel before the Bar Council. Therefore, the revision petitioner is fully aware of the consequence of passing of the preliminary decree and knowing that, he did not take any steps to set aside the preliminary decree. In the judgments relied upon by the revision petitioner''s counsel, the learned Judges have laid down the law that if delay is properly explained and sufficient cause is shown the delay can be condoned. Therefore, in the application filed u/s 5 of the Limitation Act, the Court is to find out whether proper and acceptable reason is stated for condoning the delay and it has been held by the Honourable Supreme Court and our High Court that number of days is not the criteria and the reason for condoning the delay alone is the criteria, while considering the application. In this case, as held by the Honourable Division Bench of this Court reported in 2003(1) LW 585, in the case of Sundar Gnanaolivu rep. by his Power of Attorney Agent Mr. Rukmni v. Rajendran Gnanavolivu Rep. by its Power of Attorney Agent Veina Gnanavolivu, the revision petitioner has not come to the the Court with clean hands, while seeking the delay of condonation and as stated supra, he was aware of the passing of the preliminary decree in December 2006 and till 04.10.2007, when he issued notice to the counsel, he has not taken any steps. On the other hand, he has stated that in July 2007, he was informed by her sister and even thereafter, he has not taken any steps. Therefore, it is seen from the records that the revision petitioner was aware of the passing of preliminary decree even in December 2006 and for the reasons known to him, he has not taken any steps to set aside the preliminary decree. Further even, after knowing that final decree application was filed and while final decree application was in the process, and only after the appointment of the Commissioner to divide the property, he came forward with an application to set aside the ex-parte preliminary decree. In my opinion, the conduct of the revision petitioner does not show any bona-fide as he has not explained the reasons for delay and hence, the lower Court has correctly dismissed the application.

Hence, I do not see any reason to interfere with the order of the lower court and accordingly, this civil revision petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.