IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.06.2010
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(NPD).No.1616 of 2010 and
M.P.No.1 of 2010
R.Saraswathi Petitioner
Vs.
1. The Assistant Director
Handlooms and Textiles
Post Box No.426, Bhavani Main Road,
Ashokapuram, Veerappanchitram
Erode 4.
2. The Sale Officer
EH 46, Sethunampalayam Weavers
Cooperative Production and Sales Society Ltd.,
Sethunampalayam, Sakthi Nagar,
Bhavani Taluk, Erode District.
3. The Special Officer,
EH 46, Sethunampalayam Weavers
Cooperative Production and Sales
Society Ltd., Sethunampalayam,
Sakthi Nagar, Bhavani Taluk,
Erode District.
4. K.R.Palanisamy Respondents
Civil revision petition filed under Section 115 of CPC against the order dated 20.01.2010 in I.A.No.30 of 2009 in A.S.C.F.R.No.3560 of 2009 on the file of the Sub Court, Bhavani.
For Petitioner : Mr.N.Manoharan
For R1 to R3 : Mr.R.Muthaian, Govt. Advocate
ORDER
Inveighing the order dated 20.01.2010, passed in I.A.No.30 of 2009 in A.S.C.F.R.No.3560 of 2009 by the Sub Court, Bhavani, this civil revision petition is focussed.
2. Heard both sides.
3. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary for the disposal of this revision petition would run thus:
(i) The revision petitioner filed the suit O.S.No.272 of 2005 seeking the following reliefs:
“(a) To declare the order of conditional attachment made by the 1st defendant herein in CEP No.06 of 2004-2005 dated 05.08.2003 as null and void against the schedule mentioned properties of the suit properties.
(b) To restrain the defendants, their men and agents and any other officials of the defendant herein from bringing the schedule mention properties for sale by means of the consequential permanent injunction; and
(c) for costs.”
(ii) Ultimately, after trial the suit was dismissed, as against which the defendants intend to prefer an appeal, but there was a delay of 1190 days. In order to get the delay condoned, I.A.No.30 of 2009 was filed. On hearing both sides, the lower Court dismissed the said I.A.
4. Being aggrieved by and dissatisfied with the order of the lower Court, this revision has been filed on various grounds, the quintessence of them would run thus:
The lower Court failed to take into account the genuine reasons put forth by the revision petitioner that she was suffering from jaundice. Unless an opportunity is given to the petitioner to put forth her case in the appeal, she would be put to discomfiture and prejudice. The learned counsel for the revision petitioner reiterating the grounds of revision would develop his argument that the plaintiff is having a genuine case and if the delay is not condoned, then she would not be in a position to assert her right over the property, which is unjustifiably brought for sale by the authorities concerned under the Tamil Nadu Co-operative Societies Act. The delay also was properly explained, but without citing proper reasons in rejecting the same, the lower Court dismissed the said application.
5. However, the learned Government Advocate for D1 to D3 would contend vehemently that absolutely there is no reason much less valid reason for condoning the delay of 1190 days. Merely citing that the petitioner was suffering from jaundice cannot be taken as sufficient reason. Accordingly, he prays for the dismissal of the revision.
6. The point for consideration is as to whether there is any illegality or impropriety on the part of the lower Court in dismissing the application on the ground that there was no sufficient ground to condone the delay of 1190 days?
7. Obviously and axiomatically, the delay of 1190 days which tantamounts to more than three years is really an enormous delay in filing the appeal. However, if at all the plaintiff was interested in asserting her right over the immovable property, within a reasonable time after the dismissal of the suit, she should have taken steps to prefer the appeal. The conduct of the party would speak by itself that the party was not diligent in preferring the appeal.
8. A mere poring over and perusal of the judgment of the trial Court in O.S.No.272 of 2005 would evince and demonstrate that the plaintiff has not chosen to establish her right over the property placing reliance on Ex.A2. Repeatedly the trial Court in the judgment referred to the fact that there was no iota or molecular extent of evidence to correlate the suit property with that of the properties found detailed and delineated in Ex.A2. I am fully aware of the fact that at this juncture, this Court is not expected to give its verdict on the correctness or otherwise of the findings given in the judgment of the trial Court. Even then, purely for the purpose of understanding the gamut of the suit, I would like to proceed further. I recollect and call up Rule 135 of the Tamil Nadu Co-operative Societies Act (hereinafter referred to as “The Act”) which is extracted hereunder:
“135. Investigation of claims and objections to attachment of property.- (1) Where any claim is preferred to, or any objection is made to, the attachment of any property attached under these Rules on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and dispose of it on merits:
Provided that no such investigation shall be made when the Sale Officer considers that the claim or objection is frivolous.
(2) Where the property to which the claim or objection relates has been advertised for sale, the Sale Officer may postpone the sale pending the investigation of the claim or objection.
(3) Where a claim or an objection is preferred, the party, against whom an order is made by the Sale Officer, may institute a suit within six months from the date of the order to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order made by the Sale Officer shall be conclusive.
(4) (a) any deficiency of price which may happen on a resale held under sub-rule (16) of Rule 121 or clause (k) or (n) of sub rule (2) of Rule 126 by reason of the purchaser’s default and all expenses attending such resale shall be certified by the Sale Officer to the Registrar and shall, at the instance of either the decree-holder or the judgement debtor, be recoverable from the defaulting purchaser under the provisions of these Rules. The costs, if any, incidental to such recovery shall also be borne by the defaulting purchaser.
(b) Where the property may, on the second sale, fetch higher price than at the first sale, the defaulting purchaser at the first sale shall have no claim to the difference or increase.”
9. The learned counsel for the revision petitioner in all fairness would invite the attention of this Court to paragraph 9 of the plaint itself and highlight and spotlight the fact that in fact, there was reference in the plaint itself to such a process as contemplated under Rule 135 of the Act; because of the extraordinary circumstances involved in this case and the plaintiff to get a speedy remedy, the suit was filed even before exhausting the remedy contemplated under Rule 135 of the Act. In fact, the plaintiff should have approached the authority contemplated under the aforesaid Rule 135 of the Act, but she has not done so.
10. At this juncture, the learned counsel for the petitioner would make an extempore submission that in the event of this Court not inclined to condone the delay of 1190 days in filing the appeal, an opportunity might be given to the plaintiff to approach the authority as contemplated under Rule 135 to assert her right. On merits if the matter is viewed, absolutely in my opinion there is no ground for condoning the enormous delay of 1190 days. The lower Court appropriately and appositely, convincingly and correctly held that the delay was not explained or expounded legally and convincingly. In such a case, I do not want to interfere with the discretion exercised by the lower Court in not condoning the delay. It is quite obvious that if the delay is meagre, certainly the Court could take a lenient view. Adding fuel to the fire, ex facie and prime facie, it is obvious and axiomatic that the suit has been filed without exhausting the remedy as contemplated under Rule 135 of the Act. Viewing the matter in a wholesome manner, I am of the view that there is no point in
G.RAJASURIA,J
gms
condoning such enormous delay and allow the plaintiff to perpetuate the litigation in the civil Court.
11. I could see considerable force in the submission made by the learned counsel for the revision petitioner that due opportunity should be given to the plaintiff to approach the authority under Rule 135 of the Act and in the event of such an application being filed, the authority concerned shall deal with it untrammelled and uninfluenced by any of the observations made by the civil Court and this Court in disposing of the matters. However, I would hasten to add that if already sale itself was effected under the said Act, then in that case, the petitioner would not be able to get any remedy, as otherwise the petitioner is at liberty to approach the authority under Rule 135 of the Act and get the matter processed as per law.
Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
gms 25.06.2010 INDEX : YES INTERNET : YES To The Sub Court, Bhavani. C.R.P.(NPD).No.1616 of 2010