S. Sahul Hameed & Others vs A. Faisalkhan & Others

J. Nisha banu, J

These revision petitions have been filed against the fair and decreetal order dated 04.11.2009 passed in I.A.Nos.398, 354 and 399 of 2009 in O.S.No.144 of 2006 on the file of Additional District Munsif Court, Padmanabhapuram.

The revision petitioners in all the revisions are defendants and respondents are plaintiffs in the above suit which was filed for the relief of declaration and permanent injunction. In the suit, all the revision petitioners remained exparte and exparte decree was passed in the suit on 28.08.2007. The defendant Nos.1, 2 and 3 to 5 filed three petitions to set aside the exparte decree passed against them along with the delay condonation petition to condone the delay of 255, 529 and 91 days in filing the petitions to set aside the exparte decree. The Court below declined to condone the delay, against which, these revision petitions have been filed.

Learned counsel for the petitioners in all the cases/defendants would contend that the revision petitioner in CRP.481/10 who is the eldest male member of the family is residing at Saudi Arabia for employment and he entrusted the case to one Kallil Rahaman who is none other than the 2nd defendant's husband's brother, who in turn, has entrusted the case with one Mr.C.Vijayakumar, advocate at Thuckalay and the said Vijayakumar did not follow up the case properly and did not give proper instructions to the parties and allowed the suit be decreed exparte and thereafter, the decree holders filed E.P and also filed E.A for appointment of advocate commissioner which was ordered. Only when the advocate commissioner came to the suit property on 31.01.2009, the petitioners came to know about the exparte decree passed against them and thereafter contacted their advocate and filed petitions to set aside the exparte decree with the above delay. Since the delay has occurred due to the fault on the part of the advocate, the same ought to have been condoned. Therefore, the learned counsel prays to set aside the impugned orders and to condone the above delay. In support of his contentions, learned counsel for the petitioners relied on the following decisions:-

(i) Meenakshisundaram Textiles vs. Valliammal Textiles Ltd., reported in 2011 (3) CTC 168.

(ii) Shantilal Gulabchand Mutha vs. Tata Engg & Locomotive Co.Ltd., reported in (2013) 4 SCC

(iii) S.Arul Dhas vs. F.Hubert & another reported in 2015-3-L.W 241.

Learned counsel for the respondents/plaintiffs would contend that the advocate Mr.C.Vijayakumar did not file vakalt for the defendants in the suit and he filed vakalat only in E.P. The defendants were well aware of the proceedings and they refused to receive notice and to participate in the proceedings and therefore, they were set exparte and exparte decree was passed and the Court below has rightly declined to condone the delay which does not require interference by this Court. In support of his contentions, learned counsel for the respondents relied on the following decisions:-

(i) Balwant Singh vs. jagdish Singh and others (Civil Appeal No.1166 of 2006, dated 08.07.2010).

(ii) Hemamalini vs. T.Sakunthala reported in 2016 (1) MWN (Civil) 721.

(iii) N.Prabhu vs. C.John Kennady reported in 2014 (3) CTC 715.

(iv) Esha Bhatttacharjee vs. Managing Committee of Raghunathpur Nafar Academy reported in 2013 (5) CTC 547.

(v) Leela vs. V.R.Asha reported in 2019 (1) CTC 649.

Heard both sides and perused the records.

Perusal of record shows that the respondents/plaintiffs filed the above suit for declaration and consequential relief of permanent injunction restraining the revision petitioners/defendants from interfering with their possession and enjoyment of the suit property and also the consequential relief of putting up the boundary in the suit property at the cost of the plaintiffs. Summons were issued to the defendants and they refused to receive the summons and only on that basis, they were set exparte and exparte decree was passed against them and in E.P proceedings, the petitioners had entered appearance through one Mr.C.Vijayakumar, advocate and only to evade the proceedings, the revision petitioners filed petitions to set aside the exparte decree with the above delay. Though all the three I.As had been filed through the same advocate, it has been filed on three different dates and admittedly, the 1st defendant is the elder member of the family and all are relatives. Even in the affidavit filed by the petitioners before the Court below, they have purposely suppressed the fact that they refused to receive the summons from the court below and they have put the blame on the advocate and therefore, in my considered opinion, the law is well settled that if a person approaches the court with unclean hands, he is not entitled to any remedy from the court. The refusal of the summons by the defendants is not disputed even before this Court.

In Balwant Singh vs. Jagdish Singh and others (Civil Appeal No.1166 of 2006, dated 08.07.2010), relied on by the respondents' counsel, the Hon'ble Supreme Court has laid down the principles which should control the exercise of judicial discretion vested in the Court and held as follows:-

''.... The explained delay should be clearly understood in contradistinction to inordinate explained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for con donation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for con donation of delay. The larger benches as well as equal benches of this Court has consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the court would be inclined to condone the delay in filing of such applications.''

Perusal of record further shows that after the exparte decree in the suit, the decree holders filed E.P. and also E.A for appointing advocate commissioner, in which the advocate Mr.C.Vijayakumar filed vakalat for the petitioners/defendants, but the fact remains that even after entering appearance in E.P., the defendants stood exparte and commissioner was appointed in E.A ex parte and only after the advocate commissioner visited the suit property, the petitioners filed the above three condone delay petitions, in which, purposely, they have not stated anything about the refusal of the summons by them which shows the attitude of the petitioners. Thus, there is suppression of material facts and the petitioners approached the court with unclean hands. It is well settled that a person who suppresses material facts, is not entitled to any equity from the court and therefore, I am not inclined to interfere with the orders passed by the learned Judge. The judgments relied on by the counsel for the petitioners are not applicable to the present facts and circumstances of the case.

Accordingly, these Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.