N. Pappayee Ammal and Others Vs. P. Ramasamy - Court Judgment

SooperKanoon Citationsooperkanoon.com/1191873
CourtChennai Madurai High Court
Decided OnMar-23-2016
Case NumberCRP (NPD) (MD).Nos. 493 of 2006, 1063 of 2005 & M.P(MD).No. 2 of 2006 in CRP(MD).No.493 of 2006
JudgeThe Honourable Ms. Justice V.M. Velumani
AppellantN. Pappayee Ammal and Others
RespondentP. Ramasamy
Excerpt:
(prayer in crp.(md).no.1063 of 2005: the civil revision petition is filed under section 115 of cpc against the fair and decreetal order made in i.a.no. 385 of 2004 in assr.no.770 of 2004 dated 04.03.2005 on the file of the the district court, karur. prayer in crp.(md).no.493 of 2006: the civil revision petition is filed under section 115 of cpc against the ex parte docket order passed in e.a.no.123 of 2006 in e.p.no.52 of 2004 in o.s.no.804 of 2002 on the file of the principal district munsif, karur.) 1. the civil revision petition in crp.(md).no.1063 of 2005 is filed against the fair and decreetal order made in i.a.no. 385 of 2004 in assr.no.770 of 2004, dated 04.03.2005, on the file of the the district court, karur. 2. the civil revision petition in crp.(md).no.493 of 2006 is filed against the ex parte docket order passed in e.a.no.123 of 2006 in e.p.no.521 of 2004 in o.s.no.804 of 2002, on the file of the principal district munsif, karur. 3. both the civil revision petitions are disposed by this common order. 4. the respondent is the plaintiff. the revision petitioners are the defendants in the suit in o.s.no.804 of 2002. 5. the respondent / plaintiff filed a suit for permanent injunction. after contest, suit was decreed. the petitioners tried to interfere with the possession of the respondent. the respondent gave a complaint to the inspector of police, vangal police station. after that, the petitioners filed a.s.sr.no.770 of 2004 along with application in i.a.no.385 of 2004 to condone the delay of 213 days in filing first appeal. according to the petitioners, the first petitioner was conducting the case on behalf of the other petitioners also. the first petitioner suffered from jaundice, therefore, she could not meet her counsel and instruct to file an appeal in time. the respondent filed counter affidavit and opposed the same. the first petitioner did not give any particulars about her illness. they filed an application only after complaint to the police. the other petitioners are son, daughter and son in law of the first petitioner and they were also conducting the case. the learned judge considering the material facts dismissed the application filed for condoning the delay. against that order, the petitioners filed c.r.p.no.1063 of 2005. 6. as far as crp.no.493 of 2006 is concerned the respondent filed e.p.no.521 of 2004 for detaining the petitioners in the civil prison as they violated the decree of injunction. he also filed e.a.no.123 of 1006 for police protection to him, whenever, the petitioners tried to interfere with the possession of the respondent. in the execution petition, the petitioners filed counter and denied that they interfered with possession of the respondent. in the application in e.a.no.123 of 2006, the petitioners have stated that execution application for police protection is not maintainable and the respondent has to file separate execution petition for police protection. the learned judge allowed the execution application and closed the execution petition. against that order, the crp.no.493 of 2006 is filed. 7. the learned counsel for the petitioners in both the civil revision petitions contended that the petitioners have given valid reason for delay in filing the first appeal. the learned judge ought to have considered the reason given by the petitioners liberally. the learned judge ought to have accepted the fact that the first petitioner was suffering from jaundice. the petitioners did not give any undertaking, on the other hand, they have denied that the respondent is in possession of the suit property. he further contended that execution application for police protection is not maintainable and the learned judge is erred in allowing the application for police protection and prayed for allowing the application for condoning the delay. he has also submitted that while considering the delay in application, the court must exercise discretionary power and prayed for allowing the civil revision petition. he has also relied on the judgment reported in 2013 (2-3) clt 281 (mayee @ maya thevar vs. solai sethuramalingam) relevant para 9, wherein it has been held as follows:- 9. a mere running of the eye over the aforesaid precedent of the honourable apex court would unambiguously and unequivocally highlight and spotlight the fact that huge delay cannot be condoned for the sake of asking for it. however, in this case there is a delay of 262 days for which the petitioner would submit that the delay was not wilful and wanton, but due to his ill-health and that no medical certificate in a clinching manner could be produced and only country treatment was taken by him. 8. the learned counsel for the respondent submitted that the petitioners never disputed the possession of the respondent. the trial court after full pledged trial, decreed the suit and the petitioners are well aware of the suit and decree passed and therefore, contention that due to jaundice the first petitioner could not file appeal in time is not correct. the petitioners with an intention to prolong the issue did not file appeal and they filed appeal only after complaint to the inspector of police, vangal police station and the petitioners have not given any valid and sufficient reason for condonation of delay and prayed for dismissal of this civil revision petition. 9. i have heard the learned counsels appearing on either side and perused the materials available on record. 10. from the affidavit it is seen that the reason given by the first petitioner for condoning the delay is due to illness of first petitioner, she could not file appeal in time. as rightly pointed out by the learned counsel for the respondent, the petitioners have not given any particulars with regard to the illness of the first petitioner. further the first petitioner has filed appeal only after giving complaint to the police by the respondent. therefore, the learned judge rightly dismissed the application in i.a.no. 385 of 2014 for condonation of delay. it is well settled that the length of delay is not criteria to condone the delay and the intention of the party must be bonafide should not be malafide. the reason given by the petitioners is not sufficient and the judgment relied on by them is not applicable to the facts of the present case. 11. as far as execution application in e.a.no.123 of 2006 is concerned, the respondent is in possession, the petitioners have only denied the averments of the respondent that the petitioners tried to interfere with the possession on 15.02.2016. 12. the learned judge considered all these materials in proper perspective and has given valid and cogent reason for dismissing both the interlocutory application. further, the learned judge has exercised his power conferred on him properly and there is no irregularity or illegality warranting interference by this court. 13. in the result, both the civil revision petitions are dismissed confirming the order passed by the learned district judge, karur in i.a.no. 385 of 2004 in assr.no.770 of 2004, dated 04.03.2005, as well as the ex parte docket order passed in e.a.no.123 of 2006 in e.p.no.52 of 2004 in o.s.no.804 of 2002, on the file of the principal district munsif, karur. no costs. consequently, connected miscellaneous petition is closed.
Judgment:

(Prayer in CRP.(MD).No.1063 of 2005: The Civil Revision Petition is filed under Section 115 of CPC against the fair and decreetal order made in I.A.No. 385 of 2004 in ASSR.No.770 of 2004 dated 04.03.2005 on the file of the the District Court, Karur. Prayer in CRP.(MD).No.493 of 2006: The Civil Revision Petition is filed under Section 115 of CPC against the ex parte docket order passed in E.A.No.123 of 2006 in E.P.No.52 of 2004 in O.S.No.804 of 2002 on the file of the Principal District Munsif, Karur.)

1. The Civil Revision Petition in CRP.(MD).No.1063 of 2005 is filed against the fair and decreetal order made in I.A.No. 385 of 2004 in ASSR.No.770 of 2004, dated 04.03.2005, on the file of the the District Court, Karur.

2. The Civil Revision Petition in CRP.(MD).No.493 of 2006 is filed against the ex parte docket order passed in E.A.No.123 of 2006 in E.P.No.521 of 2004 in O.S.No.804 of 2002, on the file of the Principal District Munsif, Karur.

3. Both the Civil Revision Petitions are disposed by this Common order.

4. The respondent is the plaintiff. The revision petitioners are the defendants in the suit in O.S.No.804 of 2002.

5. The respondent / plaintiff filed a suit for permanent injunction. After contest, suit was decreed. The petitioners tried to interfere with the possession of the respondent. The respondent gave a complaint to the Inspector of Police, Vangal Police Station. After that, the petitioners filed A.S.SR.No.770 of 2004 along with application in I.A.No.385 of 2004 to condone the delay of 213 days in filing first appeal. According to the petitioners, the first petitioner was conducting the case on behalf of the other petitioners also. The first petitioner suffered from Jaundice, therefore, she could not meet her counsel and instruct to file an appeal in time. The respondent filed counter affidavit and opposed the same. The first petitioner did not give any particulars about her illness. They filed an application only after complaint to the police. The other petitioners are son, daughter and son in law of the first petitioner and they were also conducting the case. The learned Judge considering the material facts dismissed the application filed for condoning the delay. Against that order, the petitioners filed C.R.P.No.1063 of 2005.

6. As far as CRP.No.493 of 2006 is concerned the respondent filed E.P.No.521 of 2004 for detaining the petitioners in the Civil Prison as they violated the decree of injunction. He also filed E.A.No.123 of 1006 for police protection to him, whenever, the petitioners tried to interfere with the possession of the respondent. In the Execution Petition, the petitioners filed counter and denied that they interfered with possession of the respondent. In the application in E.A.No.123 of 2006, the petitioners have stated that Execution Application for Police protection is not maintainable and the respondent has to file separate Execution Petition for police protection. The learned Judge allowed the Execution Application and closed the Execution Petition. Against that order, the CRP.No.493 of 2006 is filed.

7. The learned counsel for the petitioners in both the Civil Revision Petitions contended that the petitioners have given valid reason for delay in filing the first appeal. The learned Judge ought to have considered the reason given by the petitioners liberally. The learned Judge ought to have accepted the fact that the first petitioner was suffering from Jaundice. The petitioners did not give any undertaking, on the other hand, they have denied that the respondent is in possession of the suit property. He further contended that Execution Application for Police Protection is not maintainable and the learned Judge is erred in allowing the application for Police Protection and prayed for allowing the application for condoning the delay. He has also submitted that while considering the delay in application, the Court must exercise discretionary power and prayed for allowing the Civil Revision Petition. He has also relied on the Judgment reported in 2013 (2-3) CLT 281 (Mayee @ Maya Thevar Vs. Solai Sethuramalingam) relevant Para 9, wherein it has been held as follows:-

9. A mere running of the eye over the aforesaid precedent of the Honourable Apex Court would unambiguously and unequivocally highlight and spotlight the fact that huge delay cannot be condoned for the sake of asking for it. However, in this case there is a delay of 262 days for which the petitioner would submit that the delay was not wilful and wanton, but due to his ill-health and that no medical certificate in a clinching manner could be produced and only country treatment was taken by him.

8. The learned counsel for the respondent submitted that the petitioners never disputed the possession of the respondent. The trial Court after full pledged trial, decreed the suit and the petitioners are well aware of the suit and decree passed and therefore, contention that due to Jaundice the first petitioner could not file appeal in time is not correct. The petitioners with an intention to prolong the issue did not file appeal and they filed appeal only after complaint to the Inspector of Police, Vangal Police Station and the petitioners have not given any valid and sufficient reason for condonation of delay and prayed for dismissal of this Civil Revision Petition.

9. I have heard the learned counsels appearing on either side and perused the materials available on record.

10. From the affidavit it is seen that the reason given by the first petitioner for condoning the delay is due to illness of first petitioner, she could not file appeal in time. As rightly pointed out by the learned counsel for the respondent, the petitioners have not given any particulars with regard to the illness of the first petitioner. Further the first petitioner has filed appeal only after giving complaint to the Police by the respondent. Therefore, the learned Judge rightly dismissed the application in I.A.No. 385 of 2014 for condonation of delay. It is well settled that the length of delay is not criteria to condone the delay and the intention of the party must be bonafide should not be malafide. The reason given by the petitioners is not sufficient and the Judgment relied on by them is not applicable to the facts of the present case.

11. As far as Execution Application in E.A.No.123 of 2006 is concerned, the respondent is in possession, the petitioners have only denied the averments of the respondent that the petitioners tried to interfere with the possession on 15.02.2016.

12. The learned Judge considered all these materials in proper perspective and has given valid and cogent reason for dismissing both the Interlocutory Application. Further, the learned Judge has exercised his power conferred on him properly and there is no irregularity or illegality warranting interference by this Court.

13. In the result, both the Civil Revision Petitions are dismissed confirming the order passed by the learned District Judge, Karur in I.A.No. 385 of 2004 in ASSR.No.770 of 2004, dated 04.03.2005, as well as the ex parte docket order passed in E.A.No.123 of 2006 in E.P.No.52 of 2004 in O.S.No.804 of 2002, on the file of the Principal District Munsif, Karur. No costs. Consequently, connected Miscellaneous Petition is closed.