SUBBATHAL Vs. LAKSHMI

JUDGEMENT

(1.) THE Civil Revision Petitioner/16th Defendant/Petitioner has projected this Revision petition as against the order dated 13.12.2007 in I.A.No.1655 of 2006 in O.S.No.123 of 2004 passed by the Learned District Munsif, Tiruppur. 2.THE Learned District Munsif, Tiruppur while passing orders in I.A.No.1655 of 2006 in O.S.No.123 of 2004 has among other things observed that 'the petitioner in the main suit has figured as 16th Defendant and that on her behalf, Advocate Selvi V.Suganthi Parimala has appeared and that the petitioner has signed in the summons and further, the petitioner has signed in the vakalat and in the summons, but, in the vakalat filed in this Application and also in the Application, has affixed her left thumb impression and in the notice sent along with the Application, the petitioner has affixed her signature, etc., Further, the trial Court has also opined that in the suit after full trial, the Judgment has delivered and it cannot be construed as an Exparte Preliminary Decree and therefore, the Application filed by the petitioner to set aside the Exparte Preliminary Decree is not acceptable and further, the petitioner has not assigned proper reasons for the delay of 812 days and resultantly, dismissed the Application without costs.' 3. Dissatisfied with the order of dismissal passed by the trial Court in I.ANo.1655 of 2006, the Revision Petitioner/16th Defendant has projected this Revision before this Court. 4. Before the trial Court, the Revision Petitioner in I.A.No.1655 of 2006 has among other things averred that 'she has not received any notice or summon earlier and all of a sudden, she has received a notice in I.A.No.1227 of 2006 from this Court, two days back and further that she has not been aware of any proceeding and after verification in Court through his counsel, she has come to know that an Exparte Preliminary Decree has been passed on 30.04.2004 and in pursuance of the Preliminary Decree, a petition has been filed for final Decree.' 5. In I.A.No.1655 of 2006, the Revision Petitioner/16th Defendant has pleaded that she has not received any notice earlier and has no knowledge of the suit or decree, etc., and that the Respondent/Petitioner has managed not to serve the summon etc., and has obtained an Exparte Decree against her. Moreover, she has come to know of the said Decree only after the receipt of the said notice in I.A.No.1227 of 2006 and in fact, an Application to set aside the Exparte Decree dated 30.04.2004 ought to have been filed on or before 30.05.2004 and there has occasioned a delay of 812 days in filing the present Application to set aside the Exparte Decree and that the delay is not wanton and therefore, prays for allowing the Application. 6. In the counter filed by the Respondent/Plaintiff, it is among other things averred that the present suit for partition is pending from the year 1990 and the suit has been contested and a Judgment has been passed after an elaborate trial by adducing oral and documentary evidence and if at all, the petitioner can participate in the final Decree proceeding and get her share, if any by allotment and that the Application filed by the Revision Petitioner is devoid of merits and therefore prays for dismissal of the Application. 7. At this stage, it is not out of place for this Court to pertinently point out that in the Notespaper in O.S.No.123 of 2004 on the file of the Learned District Munsif, Tiruppur (Previously O.S.No.547 of 1990) on the file of the Sub Judge, Tiruppur) dated 25.06.1999, it is endorsed as 'D11, 12, 13, 16, 17 to 25 have been served (CT) (Meaning:served through Court) D14, 15 summons not retd. and the Learned Judge has minuted as follows: "Mr.N.S.P. filed vakalat for D11, D12, D13, D16, D20, D21, D22 D23, D24. D17, D18, D19 and D25 called absent set exparte, etc., THE seal of the Subordinate Court, Tiruppur for receipt of vakalat filed by Selvi N.Suganthi Parimala for D11, 12, 13, 16, 20, 21, 22, 23, 24 bears the date of receipt of the same on 30.06.1999. 8. However, on 29.10.1999, in the Notespaper, when the matter has been posted as last chance and no further adjournment will be given for filling the written statement of D11, D12, D13, D16, D20 to 24, the Civil Revision Petitioner herein who figured as 16th Defendant in the suit has not filed the Written Statement and therefore, has been set Exparte and the matter has been adjourned to 26.11.2009. 9. As a matter of fact, the Revision Petitioner/16th Defendant has been set Exparte by the Learned Subordinate Judge, Tiruppur on 29.10.1999 itself for filing of Written Statement and only thereafter on 27.01.2004, the suit O.S.No.547 of 1990 on the file of the Subordinate Judge, Tiruppur has been transferred to the District Munsif Court, Tiruppur as per amended Civil Courts Act 1 of 2004. 10. THE preamble portion of the Preliminary Decree dated 30.04.2004 in O.S.No.123 of 2004 on the file of the District Munsif, Tiruppur does not refer to the Civil Revision Petitioner/16th Defendant having been set Exparte. At the risk of repetition, it is mentioned that on 29.10.1999, since the Revision Petitioner (16th Defendant) has not filed the Written Statement (when she has been given the last chance to file Written Statement), she has been set Exparte. THErefore, as against the passing of a Preliminary Decree in O.S.No.123 of 2004 dated 30.04.2004, an Appeal has to be filed by the Revision Petitioner/16th Defendant. 11. THE Respondent/Plaintiff has filed I.A.No.1227 of 2006 before the Learned District Munsif, Tiruppur in O.S.No.123 of 2004 inter alia mentioning that 'the trial Court has passed a Preliminary Decree on 30.04.2004 by directing partition of item 2 of the plaint schedule properties into six share and allotment of one share to her and item 3 of the properties to be divided into 36 shares and allotted to her described in the petition and also prayed for appointment of a Commissioner to divide item 2 of the plaint schedule properties into 6 share and item 3 of the properties to be divided into 36 shares, etc., 12. A perusal of the notice in I.A.No.1227 of 2006 shows that the Revision Petitioner/Subbathal has received the notice in Final Decree Application in I.A.No.1227 of 2006 on 30.08.2006 and affixed her left thumb impression and accordingly, in I.A.No.1227 of 2006, the Revision Petitioner Subbathal has been shown as 12th Respondent and she has been served notice on 30.08.2006. Also, in I.A.No.1227 of 2006 (Final Decree Application) the Revision Petitioner who figured as R12 has been set exparte on 07.09.2006. THE petitioner has filed I.A.No.1655 of 2006 on 07.10.2006. 13. As far as the present case is concerned, the Revision Petitioner has filed vakalat through her counsel on 25.06.1999 as per minutes recorded by the Learned trial Judge in the Notespaper in O.S.No.123 of 2004 and further, the said vakalat has been received by the Sub Court, Tiruppur on 30.06.1999 and the Chief Ministerial Office viz., Sheristhar has put his initial on the rubber seal to that effect. When the Revision Petitioner/16th Defendant has entered appearance through her counsel Selvi N.Suganthi Parimala in the main suit, then it is not open to her to project a plea that only after receipt of the notice in I.A.No.1227 of 2006, she has come to know about the Exparte Decree dated 30.04.2004. Moreover, the Revision Petitioner in I.A.No.1655 of 2006 has affixed her Left Thumb impression but in the vakalat dated 25.06.1999, in I.A.No.291 of 1999 in O.S.No.547 of 1990 on the file of the Learned Subordinate Judge, Tiruppur, the Revision Petitioner has signed her name in Tamil. 14. It is not out of place for this Court to pertinently state that the term 'Hearing' means commencement of hearing of each day as per decision 1927 MAD 799, ARUNACHALAM CHETTIYAR V. SIVALINGAM CHETTIYAR. 15. If the suit is decreed/dismissed on merits, a remedy to a party is to file an Appeal under Or.41 of the Civil Procedure Code and not Application to set aside the Decree or Restore the Application will lie, as opined by this Court. 16. It is to be noted that when a Court of Law generally deals with an Application for condonation of delay can deal with the same by adopting a liberal approach with a view to do substantial justice for disposing the matters on minutes. Equally, there is no dispute that the term 'sufficient cause' is wide enough to apply the Law in a meaningful manner to achieve the ends of justice. By and Large, an individual does not stand to benefit by projecting an Application belatedly. As a matter of fact, a party does not stand to benefit by resorting delay. In fact he or she runs a serious risk. 17. It cannot be gain said that when the substantial justice and technical consideration are pitted against each other cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay. THE suit filed by the Respondent/Plaintiff has originally been taken on file by the Learned Subordinate Judge, Tiruppur in O.S.No.547 of 1990. Later, it has been renumbered as O.S.No.123 of 2004 by the District Munsif Court, Tiruppur and a Judgment has been delivered as on 30.04.2004. THE Notespaper in O.S.No.547 of 1990 indicates that on 19.11.2001, P.W1 has been examined in part and Ex.A1 has been marked and the matter was posted for continuation on 11.12.2001. It appears that a Memo has been filed on 11.12.2001 that D18 has expired and the same has been recorded and the steps have been ordered by 28.01.2002, etc., 18. Later, as per amended Civil Court Acts 1 of 2004, the entire case records have been transmitted from the file of the Sub Court, Tiruppur to that of the District Munsif Court, Tiruppur and O.S.No.547 of 1990 has been renumbered as O.S.No.123 of 2004 and the Learned Judge has minuted that 'informed that both sides counsels called on 08.03.2004. On 06.04.2004, when the matter has been posted for P.W1's continuation, P.W1 has been examined in chief in full and Exs.A2 to A4 have been marked and the matter has been posted to 07.04.2004, etc., On 15.04.2004, P.W2 has been examined in full and the Plaintiff side Evidence closed and the matter has been posted for Defendants evidence by 19.04.2004 and on 19.04.2004, Proof Affidavit of D1 has been filed and DW1 has been chief examined in part and Ex.B1 has been marked and for continuation of chief examination of D1, the matter has been adjourned to 20.04.2004. On 20.04.2004, DW1 has been examined in full. Exs.B2 to B6 have been marked and DW1 has been cross examined by D10 counsel and the plaintiff in full and the matter has been posted for further evidence of D10's if any by 21.04.2004. 19. Further on 21.04.2004, the evidence of D1, D2, D3, D9 have been closed and it has been recorded as D10 has no evidence and the matter has been posted for arguments on 23.04.2004 and on 23.04.2004, the Plaintiff's arguments have been heard and the Defendants arguments have been posted to 26.04.2004 and in top of the Notespaper, it is mentioned as 1, 2, 3, 9 S.B 10 RR and others Exparte and on 26.04.2004, when the matter has been posted for defendants side arguments, the Judge has been on JOCL and the matter has been reposted to 27.04.2004 and on 27.04.2004, the Defendants side arguments have been heard and the matter has been posted for Judgment on 30.04.2004 and on 30.04.2004, a Preliminary Decree has been passed. Admittedly, as against Preliminary Decree passed on 30.04.2004 in O.S.No.123 of 2004, no regular Appeal has been preferred by the Civil Revision Petitioner in accordance with law, in the considered opinion of this Court. It is to be remembered that on 29.10.1999, the Revision Petitioner/16th Defendant has been set Exparte for not filing the Written Statement though the last chance has been provided thereto. 20. Though a Court of Law can take a liberal view when it deals with Application under Section 5 of the Limitation Act, (Condone Delay Application) in the instant case, such a lenient or liberal view cannot be taken by this Court for the simple reason that the reasons assigned by the Petitioner in her affidavit in I.A.No.1665 of 2006 to the effect that after verification in Court through her counsel, she has come to know that the Preliminary Decree has been passed in the above suit on 30.04.2004 and that the Respondent/Petitioner has managed not to serve the summons etc., and that she has not received any notice earlier and no knowledge of the suit or Decree etc., and that the Respondent/Plaintiff has obtained a Decree against her are not a genuine, sufficient or a good cause. THE reason being is that the Revision Petitioner has filed vakalat through her counsel on 30.06.1999 as per the endorsement made by the Sub Court, Tiruppur for the receipt of vakalat signed by the Sheristadar and also, in the vakalat dated 25.06.1999, she has put her signature in Tamil but in the affidavit in I.A.No.1655 of 2006, she has affixed her left thumb impression and therefore, the petitioner is obviously adopting a truant stand which is not worthy of acceptance by this Court and also, this Court bears in mind that a valuable right accrued to the Respondent/Plaintiff by means of a Preliminary Decree obtained in O.S.No.123 of 2004 cannot be so easily taken away and in fact as against the Preliminary Decree so passed, the Revision Petitioner has to prefer an Appeal as per Or.41 of the Civil Procedure Code in the manner known to law and even otherwise I.A.No.1655 of 2006 is not maintainable in law on merits and in short, looking at from any angle, I.A.No.1655 of 2006 is devoid of merits and suffers from lack of bonafides and viewed in that perspective, the Civil Revision Petition is dismissed. 21. Inasmuch as the Civil Revision Petitioner/16th Defendant's remedy is to file an Appeal as against the Preliminary Decree passed on 30.04.2004 in O.S.No.123 of 2004 on the file of the District Munsif Court, Tiruppur, I.A.No.1655 of 2006 projected by the Revision Petitioner/16th Defendant is not maintainable per se in law and consequently, the same is dismissed leaving the parties to bear their own costs. THE connected miscellaneous petition is closed.