BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 24.03.2009
CORAM
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
C.R.P.(NPD).No.3550 of 2008
and
M.P.No. 1 of 2008
M/s.State Bank of Mysore,
Chennai Main Branch,
Chennai-600 001. .. Revision Petitioner/Petitioner/D2
Vs.
1.M/s.Syarikat Pengerak Penang
a Registered partnership Firm
by their Power of Attorney Agent
K.T.M.Mohamed Basheer,
Chennai-600 003. .. 1st respondent / 1st respondent / Plaintiff
2.United Trading Company,
Rep by its Partnes A.S.M.Junaid
No.7, Vengu Chetty Lane,
Chennai-600 003. .. 2nd Respondent / 2nd Respondent / D1
3.Madras International Shipping
and Clearing Agency,
No.81, Lingi Chetty Street,
Chennai-1. .. 3rd Respondent / 3rd Respondent / D3
4.Shipping Corporation of India Ltd.,
Rep by their agent
K.P.V.Sheik Mohamed Rowther & Co,
Pvt., Ltd.,
No.202, Lingi Chetty Street,
Chennai-600 001. .. 4th Respondent / 4th Respondent / D4
Prayer :- This Civil Revision Petition has been preferred under Section 115 of CPC against the order dated 23.09.2008 in I.A.No.6849 of 2008 in O.S.No.6980 of 1996 on the file of the XVII Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr.V.Bhiman, Advocate
for Mr.R.Ravichandran
For Respondents : Mr.K.V.G.Sampath, Advocate (For R1)
Mr.K.Bijai Sundar, Advocate (For R4)
No appearance for R2 & R3
ORDER
This Revision has been directed against the order passed in I.A.No.6849 of 2008 in O.S.No.6980 of 1996 on the file of the XVII Assistant Judge, City Civil Court, Chennai.
2. I.A.No.6849 of 2008 was filed under Section 5 of the Limitation Act to condone the delay of 1240 days in preferring a petition to set aside the exparte decree dated 19.10.2004 against D2/State Bank of Mysore in O.S.No.6980 of 1996. The 1st respondent herein /plaintiff viz. M/s.Syarikat Pengerak Penang is a registered partnership firm represented by their power of attorney. The plaintiff has filed the counter raising their objection for allowing the said application. Except Ex.R.1, notice dated 21.09.2005 issued by the plaintiff to D2 no oral evidence was let in by both parties. No documentary evidence was also let in on the side of the petitioner.
3.After going through the available evidence and after giving due deliberations to the submissions made by the learned counsel on both sides, the trial Judge finding no reason to condone the delay of 1240 days in preferring a petition to set aside the exparte decree against D2, has dismissed the said application, which necessitated D2 to prefer this revision before this Court.
4.The reasoning stated in the affidavit to the petition to condone the delay of 1240 days by the 2nd defendant / revision petitioner is that the suit was posted for trial and on behalf of D2 his counsel was appearing and defending the suit and P.W.1 was examined, but the suit was dismissed for default on 16.06.2000 for non-prosecution by the plaintiff and thereafter I.A.No.4904 of 2001 was filed by the plaintiff for restoration of the suit wherein notice was ordered by the Court and after due service of notice to the respondent, the said application in I.A.No.4904 of 2001 was allowed and the suit was ordered to be restored.
5.It is the contention of the revision petitioner / D2 that since the notice was served on the advocate the 2nd defendant is not aware about the restoration of the suit on 16.11.2001 and also the 2nd defendant is not aware about the further proceedings of the trial and that on 07.08.2002 since the 2nd defendant could not be present in the Court, he was set exparte. But the other contesting defendant ie., D4 had cross-examined P.W.1 and after hearing the learned counsel appearing for the plaintiff and D4, a Judgment was passed against D1 & D2 and the suit was dismissed against D3 and D4 on 19.10.2004. It is the further case of the revision petitioner / D2 that he came to know about the disposal of the suit only through the notice received in E.P.No.601 of 2008 on 13.03.2008. Thereafter he contacted his counsel and filed necessary application to set aside the exparte decree and by that time there was a delay of 1240 days in preferring the said application.
6.The learned counsel appearing for the revision petitioner submits that a liberal view is to be taken in a case like this case, wherein there was no proper service of notice on the counsel. In support of this contention, the learned counsel for the revision petitioner relied on AIR 2003 Supreme Court 3527 (B.Janakiramaiah Chetty Vs. A.K.Parthasarthi and others). The facts in brief in the above cited case are that :
the appellant, a leading businessman, was subjected to torture by police officials / respondents therein. A writ petition was filed before the Andhra pradesh High Court by appellant’s son who alleged that he had no knowledge about the whereabouts of his father, who was tortured by police officials. The writ petition was disposed of by the High Court granting liberty to the petitioner to take such legal steps against the respondents for his alleged wrongful confinement. In pursuance of the said order of the High court O.S.No.117 of 1992 was filed before the Subordinate Judge, Chittoor claiming damages on 15.04.1992. The defendant has also filed written statement. On 8.7.1997 the evidence was closed on the side of the petitioner. On 15.11.1998 the evidence on the side of the respondents was closed and the matter was posted for argument. In the meantime, applications were filed by the respondents for adducing additional evidence. The said applications were posted for filing counter affidavits and hearing. On 23.06.1999 as the respondents were not represented, a decree was passed. The applications were filed under Order IX Rule 13 of CPC by the respondents for setting aside the decree and order dated 23.6.1999. Their stand was that they were engaged in official duty and were unable to attend the Court. Petitioner took the stand about non-applicability of Order IX, Rule 13 of the Code to the facts of the case. On the ground that the matter was decided on merits and not exparte, the stand was rejected and the applications were allowed. Aggrieved by the order passed by the Senior Civil Judge, two revision petitions were filed before the Andhra Pradesh High Court. The said two revision petitions were dismissed by the High Court. Hence, the appeals were preferred before the Honourable Apex Court. While distinguishing Rule 2 & Rule 3 to Order 17 of CPC, the Honourable Apex Court held as follows:-
“……. Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permisive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.”
But the said dictum will not be applicable to the present facts of the case in hand. After receiving the notice in I.A.No.4904 of 2001, the 2nd defendant / State Bank of Mysore kept quite without informing its advocate to participate in the trial in O.S.No.6980 of 1996. After considering the evidence on the side of the plaintiff and also after hearing the contesting D4’s counsel the judgment was delivered on 19.10.2009 against D1 & D2, but dismissing the suit against D3 & D4. Thereafter only after receiving the notice in E.P.No.601 of 2008, the 2nd defendant had informed his counsel, who had filed a petition under Section 5 of the Limitation Act ie., I.A.No.6849 of 2008 in O.S.No.6980 of 1996 to condone the delay of 1240 days in preferring a petition to set aside the exparte decree in O.S.No.6980 of 1996. Absolutely there is no whisper in the affidavit filed by D2 in I.A.No.6849 of 2008 as to the effect under what circumstance the 2nd defendant has failed to inform his client after receiving the notice in I.A.No.4904 of 2001, the petition filed by the plaintiff to restore the suit.
7.Reliance was placed by the learned counsel for the revision petitioner on AIR 1987 Supreme Court 1353 (Collector, Land Acquisition, Anantnag Vs. Katiji), wherein the dictum reads that if sufficient cause is shown by the applicant, who had filed the petition under Section 5 of the Limitation Act then the delay can be condoned. There was sufficient material placed by the State Government of Jammu and Kashmir to show that the delay in preferring the appeal was due to inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the buck ethos. While setting aside the order of dismissal passed by the High Court, the Honourabled Apex Court has observed as follows:-
“Ordinarily a litigant does not stand to benefit by filing an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
“Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.”
It is to be noted in this case that the revision petitioner has not preferred any appeal against the decree and judgment in O.S.No.6980 of 1996. The learned counsel appearing for the revision petitioner would focus the attention of this Court that even though there are pleadings in the written statement filed by the 2nd defendant as to the fact that as admitted by the plaintiff there was a forgery and fabrication of documents where the rubber stamp purporting to be that of this defendant-Bank had been fabricated and the signature purporting to be that of the Manager had been forged, there was no relevant issue framed by the trial Court to give a finding on that aspect. Even if the 2nd defendant has got any genuine reasoning against the findings of the learned trial Judge, then the remedy open to him to prefer an appeal against the decree and Judgment in O.S.No.6980 of 1996. But without preferring any appeal against the decree and Judgment in O.S.No.6980 of 1996, the 2nd defendant has now comeforward with this revision contending that the order of dismissal of section 5 application filed by him is not sustainable. There is absolutely no acceptable reasoning given in the affidavit filed by D2 in I.A.No.6849 of 2008 in O.S.No.6980 of 1996 to condone the delay of 1240 days in preferring a petition under Order 9 Rule 13 of CPC to set aside the exparte order passed in O.S.No.6980 of 1996.
8.In 2003 (3) LW 494 (V.Guganeswari & another Vs. A.Shahul Hameed) this court held that if sufficient reasoning is shown in a petition filed under Order 9 Rule 13 of CPC, the exparte decree is liable to be set aside. In the said case, the trial Court and first appellate Court have refused to set aside the exparte decree dated 22.2.1996 on the ground that it was an appeallable decree and that the application under Order 9 Rule 13 of CPC was not maintainable. But the trial Court had examined only P.W.1 and Ex.A.1 to Ex.A.7 were marked and P.W.1 was not even cross-examined by the defendants, but had passed the decree in favour of the plaintiff in the absence of the defendant. So under such circumstance, it was held by this Court that the said decree is only to be construed as an exparte decree and a petition to set aside the same under Order 9 Rule 13 of CPC is maintainable. The facts of the said case has no bearing to the facts of the case in hand.
9.In the ratio decidendies relied on by the learned counsel for the revision petitioner in 1998(II) CTC 533 (N.Balakrishnan Vs. M.Krishnamurthy), 2000 (3) SCC 54 ( G.P.Srivastava Vs. R.K.Raizada and others), 2005(3) SCC 752 (State of Nagaland Vs. Lipok Ao and others), 2005(5) CTC 433 (Shankar, Vs. The Oriental Insurance Company Ltd), 2006(I) CTC 45 [Joint Commissioner (HR & CE) Vs. Ambasamudram Taluk] and 2007(1) MLJ 840 (K.Gopalakrishnan Vs. M.Ramdas), the principle laid down is that if sufficient cause is shown in the petition filed under Order 9 Rule 13 of CPC or under Section 5 of the Limitation Act, the Court is bound to allow the same or to condone the delay.
10.The learned counsel for the respondents relied on AIR 1995 Allahabad 26 ( Smt.Malti Devi Vs. Hon’ble Board of Revenue, U.P.), 2007(4) CTC 506 (Sivakumar and another Vs. R.Sengodan), 2001(3) CTC 321 (Reliance Industries Limited Vs. M.Rajkumari) and 1992(2) LW 252 (P.K.Ramakrishnan Vs. T.N.Electricity Board & others), and contended that where litigant himself is prima facie in default, negligence of counsel cannot come to his aid and delay cannot be condoned.
11.Now the only point for consideration is whether any sufficient reasoning has been given in the affidavit filed by the revision petitioner in the petition filed under Section 5 of the Limitation Act to condone the delay of 1240 days in preferring a petition under Order 9 Rule 13 of CPC. As I have already observed earlier there is absolutely no sufficient reasoning stated in the affidavit to the petition filed under Section 5 of the Limitation Act by the 2nd defendant to condone the delay of 1240 days in preferring a petition under Order 9 Rule 13 of CPC. The 2nd defendant / revision petitioner herein is not an ordinary person. D2 is State Bank of Mysore, Chennai, which admittedly after receiving the notice in the restoration petition had kept quiet for nearly 1240 days without informing its advocate to represent in the suit. For the lethargic attitude of the revision petitioner / D2, the advocate can not also be blamed. Absolutely there is no averment in the affidavit to the petition against the counsel Mr.R.Ravichandran for the 2nd defendant for his failure to represent D2 in the suit after restoration. Since there was no sufficient cause or reasoning stated in the affidavit to the petition, the Court has rightly dismissed I.A.No.6849 of 2008 filed under Section 5 of the Limitation Act to condone the delay of 1240 days in preferring a petition under Order 9 Rule 13 of CPC. Under such circumstances, I do not find any reason to interfere with the order passed by the trial Court.
12.In fine, there is no merit in this revision and the same is accordingly dismissed confirming order in I.A.No.6849 of 2008 in O.S.No.6980 of 1996 on the file of the XVII Assistant Judge, City Civil Court, Chennai. Connected Miscellaneous Petition is also dismissed. No costs.
ssv
To,
The XVII Assistant Judge, City Civil Court,
Chennai