IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:31.10.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.3414 of 2008 J.R.International (P) Ltd., Plot No.27, SIDCO Industrial Estate, Sip cot, Ranipet-632 403, Rep by its Managing Director, Mr.V.Jayachandran ... Petitioner Vs. M/s.Meenakshi Marketing, 2-8 Devika complex, Madras Road,Nangamangalam, Chitoor, A.P.Rep by Managing Partner Ravichandran. ... Respondent Prayer: Petition filed under Article 227 of the Constitution of India praying to direct the Principal District Court at Vellore to receive the Counter Statement filed by the respondent/defendant and the same may be consider and to dispose the I.A.No.133 of 2008 in O.S.No.86 of 2008 as expeditiously on merits in accordance with law by allowing the present civil revision petition. For Petitioner : Mr.Ma.Pa.Thangavel For Respondent : Mr.R.Vasudevan ORDER
This civil revision petition is preferred by the petitioner/ respondent/defendant praying for a direction being issued to the Principal District Judge, Vellore to receive the counter statement filed by the revision petitioner/respondent/defendant and to consider the same and to dispose of the I.A.No.133 of 2008 in O.S.No.86 of 2008 pending on his file.
2.The learned counsel for the revision petitioner urges before this Court that it is not correct for the learned Principal District Judge, Vellore not to receive the counter statement filed by the revision petitioner and to also to return the counter copy for several times in connection with the I.A.No.133 of 2008 in O.S.No.86 of 2008 pending on his file and the same is irregular, immaterial and against the principles of natural justice and law and further that the revision petitioner has filed the detailed counter on 04.09.2008 to the I.A.No.133 of 2008 and also served copy to the respondent/plaintiff’s counsel and that the matter is adjourned to 15.09.2008, 18.09.2008, 25.09.2008 and 16.10.2008 and that without any progress unnecessarily adjourning the case without any reason is unwarranted and hence, prays for allowing the revision in the interest of justice.
3.The learned counsel for the respondent/plaintiff contends that the learned Principal District Judge, Vellore has ordered in I.A.No.133 of 2008 on 07.08.2008 directing the revision petitioner/defendant to furnish security on the suit amount failing which the attachment is to be ordered by 27.08.2008 and has ordered notice to the civil revision petitioner/respondent and that on 27.08.2008 the revision petitioner/ respondent has been served, but the revision petitioner has not furnished the registered security and the matter has been directed to be called on 04.09.2008 and again on 04.09.2008 the revision petitioner/respondent has not filed registered security and that the matter has been posted to 10.09.2008 and from 10.09.2008 till 29.10.2008 the matter is posted for furnishing of registered security by the revision petitioner and since the learned Principal District Judge was on casual leave on 29.10.2008, the matter has been posted to 03.11.2008 for registered security to be furnished by the revision petitioner.
4.It is the further plea of the respondent/petitioner/plaintiff that the revision petitioner/defendant has not furnished the registered security and instead, he produced the unregistered security on 27.08.2008 and that he has also not filed counter on that day and the matter is being adjourned indefinitely for the revision petitioner/ defendant to produce the registered security.
5.The learned counsel for the revision petitioner informs this Court that the revision petitioner/defendant tendered the counter in open Court before the Principal District Judge, Vellore on 27.08.2008 and the same has not been received by the Court and again the counter was tendered before the trial Court on 04.09.2008 which was not accepted and that the revision petitioner/defendant has filed vakalat and before the trial Court on 27.08.2008.
6.The noting made by the learned Principal District Judge, Vellore in I.A.No.133 of 2008 in O.S.No.86 of 2008 do indicate clearly that nothing has been mentioned about the revision petitioner/ defendant tendering the counter before the Court or otherwise filing the same.
7.The learned counsel for the respondent/plaintiff submits that this Court has to go only by the noting made by the learned Principal District Judge, Vellore in I.A.No.133 of 2008 in O.S.No.86 of 2008 and that entries made in the notes paper to I.A.No.133 of 2008 must be taken into account by this Court and therefore, no importance can be attached to the version of the revision petitioner/defendant that he has tendered the counter on 27.08.2008 and on 04.09.2008 before the trial Court. In support of his contention, he relies on the decision in M/s.Vivekananda Printers, rep. By A.Chenna Kesava, Managing Partner, Hyderabad and others V. State Bank of India, Bazarghat Branch, Hyderabad 1993(2) ALT 546 wherein it is inter alia observed that ‘order passed by the trial Court directing the petitioner to furnish security is sustainable and entries made on docket of the proceedings by judicial officer prevail over affidavit filed by party at a belated stage.’ He also sites the decision in State of Maharashtra V. Ramdas Shrinivas Nayak AIR 1982 Supreme Court 1249 wherein the Hon’ble Supreme Court has among other things observed as follows:
“… If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.”
8.Further, he presses into service another decision of Hon’ble Supreme Court in Satyanarayan Laxminarayan Hegde and others V. Mallikarjun Bhavanappa Tirumale AIR 1960 Supreme Court 137 whereby the Hon’ble Supreme Court has observed that ‘where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, but, if anything, it may merely be an erroneous decision which error, not being apparent on the face of the record, cannot be corrected by the High Court in revision under S.115 of the Code of Civil Procedure or under Art. 227 of the Constitution.’ Added further, the learned counsel for the respondent/plaintiff places reliance on the decision in M/s.Sankar Sealing Systems P. Ltd., V. M/s.Jain Motor Trading Co. and another AIR 2004 Madras 127 wherein this Court has inter alia observed that ‘when part of the suit claim is admitted and there is refusal to pay admitted amount by defendants and the defendant alleged to be delaying payment and with a view to defeat payment of amount to Creditors including plaintiff made attempt to part with their immovable and movable properties. In the circumstances, attachment before Judgment of movables can be ordered.’ Moreover, on the side of respondent/plaintiff another decision in Surya Dev Rai V. Ram Chander Rai AIR 2003 Supreme Court 3044 at 3046 has been relied on to the effect that ‘A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.’
9.The pith and substance of the argument advanced on the side of respondent/plaintiff is that the revision petitioner/defendant has not obeyed the direction issued by the learned Principal District Judge, Vellore in I.A.No.133 of 2008 in furnishing the registered security and therefore, at this stage, it is not open to the revision petitioner to approach this Court praying for a direction being issued to the trial Court to receive the counter of the revision petitioner to the I.A.No.133 of 2008.
10.According to the learned counsel for the revision petitioner/ defendant, the revision petitioner is not the owner of the machineries and the building bearing site No.27 and the revision petitioner is only a lessee of the same and these details are made mention of in the counter to be filed in I.A.No.133 of 2008. Further, it is the plea of the learned counsel for the revision petitioner that the revision petitioner /defendant is ready with the counter and the petitioner may be permitted to file the same before the trial Court. A perusal of the Xerox copy of the notes paper made in I.A.No.133 of 2008 in O.S.No.86 of 2008 by the trial Court do clearly indicate that nothing has been mentioned about the tendering of the counter by the civil revision petitioner/defendant and the same being returned by the Court. On the other hand, the noting of the trial Court in the aforesaid I.A.No.133 of 2008 do show that only for registered security, the matter has been adjourned time and again indefinitely.
11.It cannot be gainsaid that Order 38 Rule 5 enjoins that a defendant in the suit may be called upon to furnish security for production of property, where, at any stage of a suit, the Court is satisfied, either by affidavit or by otherwise that the defendant, with a view to obstruct or delay the execution of any decree that may be passed against him and when he is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court etc. Further, as per Order 38 sub-clause (3), the Court may also order the conditional attachment of the whole or any portion of the property so specified. Order 38 Rule 6 of Civil Procedure Code speaks of ordering of attachment by a Court where cause has not been shown or security not being furnished. Order 38 Rule 9 refers to removal of attachment when security has been furnished or suit is dismissed. It is not known as to why the trial Court has not proceeded further in the matter when the revision petitioner/ defendant has not furnished the registered security as directed by it earlier.
12.In as much as in the notes paper in I.A.No.133 of 2008 nothing has been made mention of about the counter having been tendered by the revision petitioner/defendant and the same being returned by the Court, this Court proceeds on the footing that no counter has been filed before the Court below but that will not preclude the trial Court not to receive the counter to be filed by the revision petitioner/respondent/defendant to the I.A.No.133 of 2008. In this connection, it is worthwhile to point out that Order 8 Rule 1 of Civil Procedure Code refers to filing of written statement by a defendant to the suit. But as per Order 8 Rule 1, in its present status as a fixed time limit within which a written statement has to be filed within 30 days, a defendant can file a written statement and the maximum time i.e. provided for filing the written statement is not later than 90 days from the date of service of summons on the defendant. There is no time limit for receiving a counter to be filed by a party to the case and that too when the final decision is pending in the I.A.No.133 of 2008.
13.In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Justice is the goal of jurisprudence and not a resistant in the administration of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
14.Admittedly, the revision petitioner/defendant has not taken any steps to set aside the order passed by the trial Court in I.A.No.133 of 2008 on 07.08.2008 wherein the revision petitioner has been asked to furnish a security. Equally, the revision petitioner/ defendant has not complied with the order passed by the trial Court in I.A.No.133 of 2008 in regard to the furnishing of registered security. In the instant case, the trial Court has not proceeded further in the manner known to law when the revision petitioner/defendant has not furnished the registered security. From the notes paper to I.A.No.133 of 2008 recorded by the learned Principal District Judge, Vellore, it is quite evident that the matter has been adjourned to several dates indefinitely without there being any progress much less a substantial progress in the matter in issue. Taking note of the fact that there is no bar either in Civil Procedure Code or under any other provision of law to receive the counter to be filed by the revision petitioner/defendant at a belated stage and that too when the I.A.No.133 of 2008 is pending full-fledged decision before the trial Court, this Court is of the considered view that if the counter is not received by the trial Court then it will result in miscarriage of justice and in this view of the matter, this Court allows the civil revision petition, without going into the merits of the matter in depth, leaving all the contentions/objections open to promote substantial cause of justice.
15.In fine, the Civil Revision Petition is allowed. The revision petitioner/defendant is directed to file his counter to I.A.No.133 of 2008 within four days from the date of receipt of copy of this order. It is made clear that the learned Principal District Judge, Vellore is directed to dispose of the I.A.No.133 of 2008 after hearing both the parties conclusively and completely so that all the controversies/ issues involved in the application can be thrashed out fully, uninfluenced by any of the observations made by this Court in this revision, in the interest of justice and the trial Court is further directed to dispose of the application within two weeks from the date of receipt of copy of this order. There shall be no order as to costs.
sgl
To
The Principal District Court,
Vellore
[ PRV / 16167 ]