IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:02.03.2017 CORAM The Hon'ble Mr.Justice M.V.MURALIDARAN CRP(NPD).No.776 of 2005
and C.M.P.No.5855 of 2005
N.Suresh ..
Petitioner
1. Saraswathy
2. Renuka Devi 3.Vijayalakshmi 4.Ravindran 5.K.Jawahar 6.Prabakaran 7.M.Jothi 8.Kuppuswamy 9.A.R.Thennarasu 10.Rayappan 11.Nagaraj 12.Subramani vs.
.. Respondents Prayer: Civil Revision Petition filed under Section 115 of CPC, against the order and decreetal order dated 12.02.2004 in I.A.No.914 of 2001 in O.S.No.643 of 1991 on the file of the 3rd Additional Subordinate Court, Coimbatore.
For Petitioner : Mr.R.Murali for M/s.M.Raja For Respondents : Mr.Mukunth for M/s.Sarvabhauman Associates for R1 to R3 ----- O R D E R The Plaintiff is the revision Petitioner before this Court. Challenging the order passed in I.A.No.914 of 2001 in O.S.No.643 of 1991, on the file of the III Additional Subordinate Court, Coimbatore, dated 12.02.2004.
2. The plaintiff has filed a suit in O.S.No.643 of 1991 against the defendant seeking the relief of specific performance. The defendant has filed his written statement through his Advocate denying the allegations mentioned in the plaint.
3. The said suit was dismissed for default on 18.01.2000.
Therefore, the petitioner/plaintiff has filed an application I.A.No.914 of 2001 under Order 9, Rule 9 of CPC, with the delay of 307 days for restoration of the suit. The said application was dismissed on 12.02.2004. Against the said order, the present revision is filed.
4. In the affidavit filed for the support of the condoned delay application in I.A.No.914 of 2001 in O.S.No.643 of 1991, the petitioner states that due to severe illness and bed ridden from December 1999, the petitioner/plaintiff could not go and meet his counsel. Hence, on 18.01.2000, the suit was dismissed for default. His inability to proceed with the above case was beyond his control and it was purely due to his ill health. He was not wantonly negligent in proceeding with the above case. Therefore, he prayed for allowing the condone delay application.
5. The counter affidavit has been filed by the respondent/defendant stating that the petitioner/plaintiff has filed the suit for specific performance with the prayer to return of the advance amount. The reason given for delay of 307 days in filing the application is not proper and the defendant has not filed any documents to show that he has bedridden and severe illness from December 1991. As per order the Hon'ble Supreme Court and this Court, each and every day should be explained for the delay application that without proper reason and filing relevant documents, the delay could not be condoned. Hence, the condone delay petition may be dismissed.
6. After considering both sides arguments, the III Additional Subordinate Court, Coimbatore has dismissed the application stating that the suit was filed in the year 1991 and the same was posted on 18.01.2000 for appearance of the petitioner/plaintiff, but he has not appeared and that the petitioner was bed ridden and taking treatment for his continuous illness. After discharge from the Hospital, he has not filed the restoration application within the time limit prescribed by the Limitation Act, 1963, but he had filed the application after 307 days . Apart from this the petitioner has not convinced the Court for the delay caused. Challenging, the said order, the petitioner/plaintiff has filed this present petition before this Court.
7. Mr.R.Murali, learned counsel appearing for the petitioner and Mr.Mukunth, learned counsel appearing for the respondents and perused the materials available on record.
8. Admittedly, the suit was filed for specific performance based on the sale agreement executed on 11.09.1998 in favour of the petitioner/plaintiff. The petitioner has paid an advance amount of Rs.1,00,000/-, out of total sale amount of Rs.5,00,000/- and as per the sale agreement,the petitioner/plaintiff should pay the balance amount of Rs.4,00,000/- within a period of two years, thereafter the respondent/defendant to execute the sale deed in favour of the plaintiff. Since this Court and Hon'ble Apex Court clearly held that the suits like specific performance, declaration and partition should not be passed an exparte decree, proper opportunity should be given to both the parties to put forth their case and to pass orders on merits.
9. Admittedly, the suit was filed in the year of 1991 and the case is pending for long time, which is unnecessarily pending for more than 26 years. The said suit was dismissed for default for non appearance for the plaintiff. Therefore, this petitioner/plaintiff has filed the application with the delay of 307 days to restore the application on the ground that he was bid ridden and taking treatment continuously but, the reason given by the petitioner/plaintiff is not sufficient.
10. The Hon'ble Apex Court, in a recent unreported Judgment in Crl.A.No.3777 of 2015, has condoned the delay of 882 days by imposing a heavy cost of Rs.50,000/-. Since the Hon'ble Supreme Court held that the concepts such as "liberal approach", justice oriented approach", "substantial justice" cannot be employed to jettison the Substantial law of Limitation. The Hon'ble Apex Court, while considering the said application for the delay of 882 days, has imposed a cost of Rs.50,000/- and while passing the order in the said application, the Hon'ble Apex Court clearly held that though the delay is inordinate that can be condoned on payment of heavy cost. Though the petitioner/plaintiff has not given sufficient cause for the delay, in the interest of justice by applying in judgment of the Hon'ble Apex Court, this Court agrees the reason assigned by him for non appearance of the Court and the delay of 307 days is condoned on payment of heavy costs.
11. During the course of arguments, the learned counsel for the petitioner/plaintiff submitted that this Court has passed the order in CRP.No.443 of 2013, dated 20.02.2017 and CRP.No.397 of 2012, dated 20.02.2017 on payment of cost Rs.60,000 and Rs.50,000/-, relatively based on the order passed by the Hon'ble Apex Court in the unreported judgment in Crl.A.No.3777 of 2015. Therefore, producing the said two Judgments, the learned counsel for the petitioner/plaintiff also prayed this Court for the same cost imposed in this Civil Revision Petition also.
12. But on the other hand, the respondent/defendant vehemently opposed by stating that the suit has been filed in the year of 1991. The said suit was dismissed for default for non appearance of the plaintiff in the year 2000 and the application was filed in I.A.No.914 of 2000 with the delay of 307 days restoration and the application also dismissed on 12.02.2004 but this application is pending for more than 17 year. Therefore, if this Court is inclined to allow the application that would be prejudice caused to the respondent/defendant.
13. On perusal of the record, it would clearly show that the suit was filed in the year of 1991 and the same was dismissed in the year of 2004. This Civil Revision Petition is pending before this Court for more than 15 years and this application is pending from 2005. In the interest of justice by applying the order passed by the Hon'ble Apex Court reported in Crl.A.No.3777 of 2015, this petition is liable to be with an heavy cost.
14. In the result:
(a) The Civil Revision Petition is allowed by setting aside the order dated 12.02.2004 in I.A.No.914 of 2001 in O.S.No.643 of 1991 on the file of the III Additional Subordinate Court, Coimbatore on condition that the petitioner should pay a sum of Rs.45,000/- (Rupees forty five thousand only) as costs to the GOVERNMENT INFECTIOUS DISEASES HOSPITAL, THOPPUR, MADURAI TO VIRUDHUNAGAR ROAD, MADURAI DISTRICT, within a period of four weeks from the date of receipt of a copy of this order;
(b) The trial Court is directed to number the set aside application and to dispose the same, within one month from the date of receipt of a copy of this order, by giving opportunity to both the parties;
(c) After passing order in the set aside petition, since the suit is for the year of 1991, the learned trial Judge is directed to dispose the suit in O.S.No.643 of 1991 within a period of two months on day to day basis without giving adjournment to either parties and both the parties are hereby directed to co-operate for early disposal of the suit. No costs. Connected miscellaneous petition is closed.
02.03.2017
ub Index:Yes/No Internet:Yes/No Note: Issue order copy on 06.03.2017 To The III Additional Subordinate Court, Coimbatore.
M.V.MURALIDARAN,J.
ub
CRP(NPD)No.776 of 2005
02.03.2017 C.R.P.(NPD).No.776 of 2005 M.V.MURALIDARAN, J.
Today, the matter is listed under the caption “for being mentioned” at the instance of learned counsel for petitioner.
2. Heard learned counsel for the petitioner and learned counsel appearing for the respondent.
3. It is represented by the learned counsel for the petitioner that the matter has already been allowed by this Court by order dated 02.03.2017, by setting aside the order passed in I.A.No.914 of 2001 in O.S.No.643 of 1991, dated 12.02.2004, on the file of the III Additional Subordinate Court, Coimbatore, on condition that the petitioner should pay a sum of Rs.45,000/- (Rupees Forty Five Thousand only) as cost to the Government Infectious Disease Hospital, Thoppur, Madurai-Virudhunagar Road, Madurai District, within a period of four weeks from the date of receipt of a copy of this order.
4. It is further represented by the learned counsel for the petitioner that the authority to whom the money has to be paid has not been mentioned in the address of the Hospital and there is also a mistake in the address of the Hospital and it should be "THE RESIDENT MEDICAL OFFICER, GOVERNMENT HOSPITAL OF THORACIC MEDICINE, THOPPUR, MADURAI.
M.V.MURALIDARAN, J.
ub
5. Accordingly, the address of the Hospital in paragraph No.17(a) of the order dated 02.03.2017 made in CRP(NPD).No.776 of 2005 should be read as "THE RESIDENT MEDICAL OFFICER, GOVERNMENT HOSPITAL OF THORACIC MEDICINE, THOPPUR, MADURAI" instead of Government Infectious Disease Hospital, Thoppur, Madurai-Virudhunagar Road, Madurai District."
6. Registry is directed to carry out necessary corrections and issue fresh order copy.
19.04.2017
ub Note: Issure Order copy on 20.04.2017 C.R.P(NPD)No.776 of 2005 http://www.judis.nic.in