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Judgment
Honourable Mr. Justice R.S. Ramanathan
The 1st defendant in O.S.No.5 of 2005 on the file of the Additional District and Sessions Court cum Fast Track Court, Tirupattur is the revision
petitioner.
The respondent herein filed the suit in O.S.No.149 of 1997 against the revision petitioner and six others for partition and the revision petitioner
contested the suit by filing statement raising various issues. The case was posted for trial on 13.2.2008 and on that date the counsel appearing for
the revision petitioner reported no instructions and the revision petitioner was set exparte and exparte preliminary decree was passed on
13.2.2008. Thereafter, the final decree application was filed by the respondent and notice was issued to the revision petitioner returnable by
11.10.2010 and on receipt of the same, the revision petitioner filed an application to set aside the exparte preliminary decree and also filed an
application in I.A.No.37 of 2010 to condone the delay in filing the application to set aside the exparte decree. That application was dismissed by
the Court below and aggrieved by the same this revision is filed.
It is submitted by the learned counsel for the revision petitioner that the parties are brothers and settlement talks were going on between the
parties prior to the passing of the decree and even thereafter the revision petitioner was bona fidely expecting the respondent to settle the matter
amicably and therefore he did not take any steps to file an application to set aside the exparte decree and further submitted that the revision
petitioner was also not aware of the passing of exparte preliminary decree and only on receipt of summons in the final decree application he came
to know about the final decree and immediately filed an application to condone the delay in filing the application to set aside the exparte preliminary
decree. He therefore submitted that the delay is not willful or wanton and as the parties were talking for settlement, there was a delay. Mr.
V.Raghavachari, the learned counsel for the revision petitioner further submitted that once the counsel appearing for the parties reported no
instructions, the Court should not have proceeded with the trial and ought to have issued notice to the parties and thereafter only proceeded with
the trial and in this case admittedly no notice was issued to the parties after the counsel appearing for the revision petitioner reported no instructions
and on the same date the revision petitioner was set exparte. Therefore, the delay has to be condoned.
On the other hand, it is submitted by the learned counsel for the respondent that the revision petitioner was aware of the passing of final decree
and at no point of time there was talk of compromise between the parties and the case was never adjourned for settlement and the revision
petitioner has filed an affidavit by swearing false allegations and in such circumstances as held by the Hon''ble Supreme Court in the Judgement
reported in 2009 (2) MLJ 104 equivalent to Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, when the party
has given incorrect statement in the application to condone the delay that itself is a ground for dismissing the application. He also relied upon the
Judgement reported in Balwant Singh (Dead) Vs. Jagdish Singh and Others, in support of his contention. He further submitted that the revision
petitioner is a practising lawyer and therefore he was aware of the exparte decree passed in the suit and deliberately he has not taken any steps to
set aside the exparte decree and it is not true to state that only after the receipt of the notice in the final decree application he came to know about
the passing of the preliminary decree.
Mr. V.Raghavachari, the learned counsel for the revision petitioner relied upon the Judgement of the Hon''ble Supreme Court reported in 1998
(1) MLJ 76 ( Malkiat Singh and other Vs. Joginder Singh and others) in support of his contention that when exparte decree was passed on the
basis of the reporting no instructions without issuing notice to the parties the same is liable to be set aside.
Heard both side counsel.
It is seen from the affidavit filed in support of the petition to condone the delay that the revision petitioner has alleged that the suit was posted for
settlement for number of times and the suit was posted for settlement on 13.2.2008 and even thereafter the settlement talks were going on between
the parties and taking advantage of the preliminary decree passed the final decree application was filed by the respondent. In the affidavit filed in
support of the petition the revision petitioner has not stated that he was not aware of the preliminary decree on 13.2.2008 and he came to know
about the same only on receipt of the summons in the final decree application. The only reason stated in the affidavit filed in support of the
application to condone the delay was that the settlement talks were going on between the parties even after passing of the preliminary decree. That
statement was denied by the respondent in his counter and the Court below has also observed in the order that the case was never adjourned for
settlement. Therefore, having regard to the specific finding of the Court below that the case was not adjourned for settlement at any point of time,
the statement made in the affidavit that the settlement talks were going on between the parties and the case was also adjourned for settlement
several times it is only a incorrect statement. Therefore, as per the Judgement of the Hon''ble Supreme Court reported in 2009 (2) MLJ 104
equivalent to Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, wherein incorrect statement made in the
application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in
the application reveal sufficient cause to condone the delay. Therefore, having regard to the Judgement of the Hon''ble Supreme Court as stated
above, the petition is liable to be rejected on the ground of incorrect statement given in the affidavit.
Further in the Judgement reported in Balwant Singh (Dead) Vs. Jagdish Singh and Others, the Hon''ble Supreme Court has stated as follows:
The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be
adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one
party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take
away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party.
Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in
implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of
his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide.
The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is
worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements,
then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well
as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour
of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.
As regards the contention of the learned counsel for the revision petitioner that when the Court has passed an exparte order after the counsel
appearing for the party reporting no instructions without issuing any notice to the parties such exparte decree was liable to be set aside as held by
the Hon''ble Supreme Court reported in 1998 (1) MLJ 76 ( Malkiat Singh and other Vs. Joginder Singh and others), in my opinion, the Judgement
cannot be applied to the facts of this case. It is true that the revision petitioner was set exparte after the counsel reported no instructions and no
notice was issued to the revision petitioner. As stated supra, in the affidavit filed in support of the petition, he has not stated that he was not aware
of the exparte decree passed on 13.2.2008 and he came to know about the same only on receipt of the summons in the final decree application.
On the other hand, he has stated that even after March 2008 the settlement talks were going on between the parties and that statement was not
substantiated by him. Further, it is admitted that the revision petitioner is a practising lawyer and therefore it cannot be accepted that he was not
aware of the preliminary decree passed on 13.2.2008 and he came to know about the same only on receipt of the summons.
Therefore, having regard to the law laid down by the Hon''ble Supreme Court Judgement reported in Balwant Singh (Dead) Vs. Jagdish Singh
and Others, ) as stated supra and having regard to the incorrect statement given by the revision petitioner in the affidavit filed in support of the
petition, the Court below has rightly rejected the application and I do not find any reason to interfere with the order of the Court below.
Hence, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.