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D.Kirubanayagam v. St.Joseph - CRP.NPD.Nos.2230 of 2007  RD-TN 2624 (8 August 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 8-8-2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.R.P.NPD Nos.2230 and 2231 of 2007
MP No.1 of 2007
8.Hemachona .. Petitioners in both revisions vs.
1.St.Joseph Charity Trust
rep. By its Secretary
2.St.Joseph Matriculation School
rep. By its Secretary
6, Abirami St.,
Teachers Guild Colony
Corporation of Chennai
4.The Junior Engineer
Corporation of Chennai
Subramaniapuram 2nd Street
Part Ii Division 62
Kolathur, Chennai 92. .. Respondents in both revisions Civil revision petitions preferred under Sec.115 of the Code of Civil Procedure against the orders passed in I.A.Nos.8209 and 8211 of 2007 in O.S.No.9977 on the file of XIII Assistant City Civil Court, Chennai, dated 19.6.2007. For Petitioners : Mr.Bhiman for Mr.A.Asokan
For Respondents : Mr.Parthasarathy Senior Counsel for Mr.E.Reegan Amarasekaran for RR1 and 2 COMMON ORDER
This order shall govern these two revisions in CRP Nos.2230 and 2231 of 2007. These revisions challenge the orders of the XIII Assistant City Civil Court, Madras, made in I.A.Nos.8209 and 8211 of 2007 in O.S.No.9977 of 1996.
2.The Court heard the learned Counsel for the petitioners and also the learned Senior Counsel for the respondents 1 and 2.
3.One Devasagayam filed O.S.No.9977 of 1996 seeking a direction to the defendants 1 and 2 namely the Commissioner of Corporation of Chennai and the Junior Engineer, Corporation of Chennai, respectively, not to sanction any planning permission favouring the defendants 3 and 4 to construct superstructure or to regularize the unauthorized construction made in S.No.181/4, 193/2-B, and 193/4 and also a further direction to the defendants 1 and 2 who are the authorities, to remove the unauthorized construction put up by the defendants 3 and 4 in the said property. The said suit was taken on file. The defendants entered appearance. The defendants 3 and 4 are the contesting parties. They filed the written statement, and necessary issues were framed. The matter was posted for trial on 28.1.2004. On that day, due to the non-appearance of the defendants 3 and 4, the suit came to be decreed ex-parte. After the ex-parte decree was passed, two applications were filed by the defendants 3 and 4, who are the respondents 1 and 2 herein, one in I.A.No.8209/2007 to condone the delay of 1167 days in making an application to set aside the ex-parte decree, and the other in I.A.No.8211/2007 for stay of the ex-parte decree. On contest, both the applications were ordered. Aggrieved, the legal representatives of the original plaintiff have brought forth these two revisions before this Court.
4.In support of the revision petitions, the learned Counsel for the petitioners would submit that in the instant case, it is an admitted position that the defendants 3 and 4 appeared before the lower Court in O.S.No.9977/96 and filed the written statement; that it was a matter posted in the list on 28.1.2004; but, they did not appear; that under the circumstances, an ex-parte decree came to be passed against them; that now, they came with an application to set aside that ex-parte decree; that in doing so, there was a delay of 1167 days; that the affidavit in support of that application does not speak about any reason whatsoever; and that under the circumstances, the lower Court should have dismissed the application. Added further the learned Counsel that the application for stay of the ex-parte decree should have also been dismissed; but, the same has also been ordered erroneously, and hence, both the orders of the lower Court have got to be set aside.
5.Contrary to the above contentions, the learned Senior Counsel for the respondents 1 and 2 would submit that in the instant case, it is true that the suit was filed by the original plaintiff, and the defendants 3 and 4 namely the respondents 1 and 2 herein, have appeared; that the matter was posted in the list; that they did not appear; that they were set ex-parte; that an ex-parte decree came to be passed; that while making an application to set aside the ex-parte decree, there was a delay of 1167 days; that the lower Court has allowed the application mainly considering the reason that it was a school premises, and thousands of children are being educated; that what was sought for was a direction by the ex-parte decree against the defendants 1 and 2 who are the authorities of the Corporation, to remove the construction, which, according to the plaintiff, was unauthorized; that considering the same, the lower Court has allowed the application; that considering the facts and circumstances only, the application for stay has also been allowed, and under the circumstances, the orders of the lower Court have got to be sustained.
6.The Court paid its anxious consideration on the rival submissions made.
7.It is not in controversy that the suit was filed by the original plaintiff. The first relief sought for was against the first and second defendants who are the Commissioner of Corporation of Chennai and the Junior Engineer, Corporation of Chennai, respectively not to sanction the plan and not to regularize the construction already made, and the second relief was asked for by way of a direction to those authorities to remove the unauthorized construction in the suit property. Due to the non-appearance of the defendants 3 and 4, the suit came to be decreed ex-parte on 28.1.2004. It is true that while making the application to set aside that ex-parte decree, there was a delay of 1167 days. Needless to say that it is well settled proposition of law that the amount of delay is not the matter; but, the sufficiency of the reason is the matter. In the instant case, once there was a delay of 1167 days, the Court would naturally expect sufficient cause to condone such a delay. After looking into the affidavit filed in support of that application, this Court is of the opinion that there was lack of sufficiency of reasons. But, in the case on hand, the Court has to take into consideration the attendant circumstances. From the materials available and in particular, the affidavit filed in support of the application, it could be seen that the defendants 3 and 4 filed a suit in O.S.No.11165 of 1992 on the file of the VI Assistant City Civil Court, Madras, against the plaintiff herein and others for a permanent injunction restraining them from interfering with their peaceful possession and enjoyment of the suit property. During the pendency of that suit, the defendants 3 and 4 filed a suit in C.S.No.1599/94 on the file of this Court for a specific performance decree. The suit filed before this Court for specific performance was transferred to be tried along with the suit pending on the file of the City Civil Court, and it was renumbered as O.S.No.11546/96. Thus, it would be quite clear that both the said suits were jointly tried by the V Assistant City Civil Court, and both were decreed. Now, the first defendant in the suit filed two appeals in A.S.Nos.242 and 243 of 2002 before the IV Fast Track Court, Chennai, and the appeals were allowed reversing the judgment and decree of the trial Court in the said suits. Aggrieved over the same, two second appeals have been brought forth and pending before this Court in S.A.Nos.609 and 630 of 2005.
8.It is not in controversy that the property in question is actually the subject matter covered under the above two suits, and same is now pending in the second appeals. It is pertinent to point out that when the subject matter is actually pending and covered in the second appeals, the instant suit in O.S.No.9977/96 has been brought forth before the Court below for the reliefs that there should not be any sanction to the defendants 3 and 4, and also there should not be any regularization of the constructions already made. They have further sought for a direction to the Corporation authorities to demolish the construction, which, according to the plaintiff, was unauthorized. Now, at this juncture, it is to be pointed out that whether the constructions are unauthorized or not is yet to be decided. Under the circumstances, if the prayer for removal of the construction which, according to the plaintiff, is unauthorized, is allowed to be executed, then not only it would be causing inconvenience, but also the rights of the parties would be jeopardized. That apart, thousands of students are being educated in a School being run in the instant building in respect of which they seek for a particular relief. The lower Court has adverted its attention over these reasons and has recorded the same before allowing the application, which, in the opinion of this Court, has been rightly done. It is true that there was a delay of 1167 days. If the ex-parte decree is allowed to be in force and further execution is also to be done even without being defended by the opposite party and even before being decided whether it is unauthorized or not, the first and second defendants have no option than to put the decree in execution and remove the construction, which, in the opinion of this Court, should not be done.
9.In the instant case, the lower Court while condoning the delay, has awarded a cost of Rs.1,000/-, which is also sustained. Once the application to condone the delay has been allowed, the other application to set aside the ex-parte decree has got to be decided on the merits of the matter. While that application is allowed, the operation of the ex-parte decree has got to be necessarily stayed. Consequently, the other application has also been ordered and rightly too. Under the circumstances, no question of any interference would arise. Accordingly, both the orders passed by the Court below, are sustained. Since the ex-parte decree was passed at the time when the matter was ripe for trial, the lower Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order.
10.In the result, both the revisions are dismissed. No costs. Consequently, connected MP is also dismissed. nsv/
The XIII Assistant Judge
City Civil Court
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