This Revision has been directed by the revision petitioner, who was the defendant before the lower Court, against the order of dismissal of the application filed for condonation of the delay of 607 days in filing the application to set aside the exparte decree passed by the lower Court.
2.The respondent herein, as plaintiff, filed O.S.No.238 of 2002 before the lower Court for specific performance of the sale agreement entered into between the respondent herein/plaintiff and the petitioner/defendant. An exparte decree was passed against the defendant/revision petitioner herein by the lower Court. In filling the application to set aside exparte decree a delay of 607 days had been caused. Hence, the defendant/revision petitioner has filed I.A.No.110 of 2005 for condonation of delay of 607 days in filing the application to set aside the exparte decree. The said application was dismissed by the lower Court. Hence, the present revision has been preferred by the revision petitioner.
3.The averments in the application to condone the delay filed by the petitioner would run as follows:- The respondent had filed the suit against the petitioner for specific performance based on an agreement of sale. According to the respondent, the petitioner had entered into an agreement with the respondent to sell the properties of the petitioner. The petitioner was not served with summons in the suit. But, when the petitioner came to know about the case, he entrusted the papers to one Mr.Sundaramoorthy, Advocate, who was practising in Cuddalore. As he was mainly practicing on the criminal side, he, in his turn, entrusted the case to one Mrs.Gunavathy, Advocate. Whenever, the petitioner contacted Mr.Sundaramoorthy, he informed the petitioner that the matter was being taken care of. The petitioner believed that his interest would be protected by the said Advocate. But, on 28.11.2004 the respondent's husband came to the suit property and wanted to enter into the suit property. The petitioner prevented him. Then, the petitioner came to Cuddalore and he was able to gather information that an exparte decree had been passed against him and based on the exparte decree the respondent had secured a sale deed in his favour and had created evidence as if she had taken delivery of the property. Since the petitioner did not know about the exparte decree, he could not file an application to set aside the exparte decree in time. Hence, he filed the said application for condonation of delay of 607 days in filing the application to set aside the exparte decree.
4.In the counter filed by the respondent it has been contended as follows:- The application to condone the delay has been filed with incorrect and baseless averments. It is incorrect to state that the suit summons were not served on the petitioner. For non-appearance of the petitioner, he was set exparte on 8.11.2002. Thereafter, the petitioner filed I.A.No.1 of 2003 to set aside the exparte order. The said application was allowed by the Court with a condition to pay the cost. For non-payment of the cost I.A.No.1 of 2003 was dismissed and the suit was decreed on 24.3.2003. Thereafter, the respondent/plaintiff filed EP.No.96 of 2003 to execute the sale deed. The petitioner/defendant received EP summons from the Court, but he failed to appear. Hence, the sale deed was executed by the Court in favour of the respondent/plaintiff. Thereafter, the respondent/plaintiff filed a petition for delivery and in that proceedings also the petitioner/defendant failed to appear and hence, the delivery was ordered and in furtherance of that order, the respondent/plaintiff took delivery of the property and delivery was also recorded. Now the respondent/plaintiff is in possession and enjoyment of the suit property. The petitioner having kept quite all these days and failed to appear before the Court inspite of suit summons and the execution notice served on him, now comes with a vexatious petition to condone the delay of 607 days. Further, the petitioner/defendant has also filed a suit against the respondent/plaintiff in O.S.No.148 of 2005 on the file of the District Munsif, Cuddalore. Under the said circumstance, the petition laches bonafide and liable to be dismissed. The averment that whenever the petitioner/defendant contacted Mr.Sundaramoorthy, Advocate, he assured that he is taking care of the case and the petitioner believed his words and hence he was not aware of the exparte decree passed on 24.3.2003 is not true and it is invented for the purpose of the petition. Mr.Sundaramoorthy, Advocate, is a Senior Advocate with good reputation. The petitioner with a malafide intention is blaming the said Advocate in order to suppress his own misdeeds. It is also not correct to state that the petitioner came to know about the passing of exparte decree only on 28.11.2004. The petitioner has suppressed the material facts and he has not come to the Court with clean hands. The petition has been filed only to harass the plaintiff and to protract the proceedings. Hence, the respondent prayed for the dismissal of the application.
5.Heard Mrs.R.Meenal learned counsel for the revision petitioner and Mr.R.Gururaj learned counsel for the respondent.
6.The learned counsel for the petitioner would submit in her argument that the lower Court had not seen that the petitioner/defendant was left out by the counsel, who appeared before the lower Court for the petitioner, and since he was not given particulars about the case details, he could not appear and he was set exparte and he could not know about the passing of exparte decree also. He would further submit that he became aware of the same only on 28.11.2004 when the respondent's husband came and wanted to enter into the property and he was prevented by the petitioner and when he gathered information and had filed the petition immediately and however, a delay of 607 days had been caused to file an application to set aside the exparte decree. The learned counsel for the revision petitioner would further submit in her argument that the petitioner was an innocent man, who was wholly depending upon his counsel namely Mr.Sundaramoorthy, who had practised only in criminal side and engaged one Mrs.Gunavathy, Advocate, to conduct the suit, but however, the petitioner used to obtain particulars from the said Mr.Sundaramoorthy, only but he did not hear anything from him and therefore, the petitioner should not be penalized for the omission of his advocate. The lower Court did not consider the proposition of law that the litigant should not be penalized by the act or omission of his / her counsel and therefore, the order passed by the lower Court in rejecting the application to condone the delay of 607 days in filing the application to set aside the exparte decree may be set aside. She would also submit that the lower Court had not considered that the opportunity should be given to the petitioner in the said case, since it was a suit for specific performance over his property. Therefore, she would request the Court to interfere with the order passed by the lower Court in dismissing the application to condone the delay of 607 days. Accordingly, she would, therefore, request the Court to allow the revision.
7.The learned counsel for the respondent would submit in his argument that the petitioner had wrongfully blamed the counsel Mr.Sundaramoorthy, who had got regular work in criminal side and he is also a senior counsel having reputation and the petitioner was wrongly blaming him, for his own misdeeds. If really the petitioner was aware of the particulars regarding the conduct of said Mr.Sundaramoorthy, he would have examined him on his side. The learned counsel for the respondent/plaintiff would also submit that the petitioner was not served in the suit and therefore, he was aware of the suit proceedings pending against him and after the passing of the exparte decree, execution proceedings were launched by the respondent and notice was served on the petitioner and thereafter, delivery proceedings were taken place and the petitioner also received the notice, but he did not come forward with the explanation for non-appearance before the Execution Court. He would vehemently submit that the petitioner was having full knowledge about the execution proceedings and delivery of possession, but has come forward with the false allegations that he could know about the passing of exparte decree only when the respondent's husband came to the suit property and tried to enter into the same. He would also submit that the non-explanation of the service of notice in the EP and non-disclosure of the launching of EP by the respondents and notice served upon the petitioner and delivery has been ordered in the said EP would go to show that the petitioner has not come to Court with clean hands. He would also submit that the petitioner had also suppressed the dismissal of earlier petition to set aside exparte order filed by him in I.A.1 / 2003 on 24.03.2003. Therefore, he would submit in his argument that the lower Court had correctly come to the conclusion of dismissing the application since the petitioner has not correctly stated the facts, but had suppressed the important particulars regarding the case. Therefore, there may not be any chance for interfering with the order passed by the lower Court. Therefore, he would request the Court to dismiss the revision.
8.Considering the submissions made by both sides, this Court could understand that the petitioner was the defendant in the suit filed by the respondent/plaintiff for specific performance of sale agreement in respect of his property and he is said to have engaged a counsel viz., Mr.Sundaramoorthy, who was actually practising in criminal side and he inturn entrusted the matter to one Mrs.Gunavathy, Advocate. The further case of the petitioner was that he did not know about the further developments in the case and it was not informed by his counsel and he could understand the passing of exparte decree against him, only when the respondent's husband came to the suit property and tried to enter into the suit property. Actually after the exparte decree was passed against the petitioner, the respondent had launched EP for execution of sale deed. Indisputably the petitioner was served with notice in EP and the lower Court had ordered execution of the sale deed in favour of the respondent. Thereafter another prayer was sought for by the respondent/plaintiff for delivery of possession and the petitioner was also given notice in the said EP for delivery and the said EP was also ordered and the possession was handedover to the respondent. The petitioner had admittedly not stated about the execution proceedings, execution of the sale deed by the Court in favour of the respondent and the delivery of possession ordered by the Court. The only allegation made by the petitioner was that the respondent's husband came on 28.11.2004 and attempted to enter into the property and then only he could aware that the suit was decreed exparte. When those facts regarding the service of notice in EP proceedings have not been disclosed by the petitioner, the allegations made against the counsel that he did not inform the development in the case cannot be considered to be true. The petitioner ought to have approached the Court with all correct particulars. Still he has not disclosed about the dismissal of I.A.No.1 / 2003 filed by him to set aside exparte decree. The petitioner cannot plead incorrect statements and the non-disclosure of the EP proceedings will not show the bonafide of the petitioner. Therefore, the reasons alleged by the petitioner for condoning the delay of 607 days in filing the application to set aside the exparte decree cannot be considered. The lower Court had also come to the same view. Therefore, the order of the lower Court cannot be interfered with and set aside. Therefore, the revision filed by the petitioner for intervention of the said order passed by the lower Court is not sustainable.
9.In the result, the Revision is dismissed. Connected Miscellaneous Petition is also dismissed. No costs.
ssv To, The I Additional Subordinate Judge, Cuddalore