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Swaminatha Odayar and ors. Vs. Raja Muhammad Rowther - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1958)1MLJ402
AppellantSwaminatha Odayar and ors.
RespondentRaja Muhammad Rowther
Excerpt:
- .....did not admit of any doubt. from what i have referred to already, it should be clear that at that time proceedings under section 145, criminal procedure code, were pending before the magistrate, and on the respondent's own showing he waited for the termination of these proceedings before deciding to pursue all the remedies he thought were open to him in e.a. no. 19 of 1957. there was certainly enough to show that the respondent elected not to re-present e.a. no. 19 of 1957, and the ground on which he made that election was that proceedings were pending under section 145, criminal procedure code. it should be remembered that the basis of the application no. 19 of 1957 was that he was not in possession while the basis of his claim in proceedings under section 145, criminal procedure code.....
Judgment:

Rajagopalan, J.

1. In proceedings in execution of the decree, O.S. No. 3 of 1919, to which the respondent was not a party, there was an order for delivery of possession of the properties, and possession was delivered to the petitioners on 12th June, 1955. The respondent preferred an application on 11th July, 1955 to the District Court, W. Tanjore, under the provision of Order 21, Rule 100, Civil Procedure Code, for re-delivery of the properties. This application was eventually numbered as E.A. No. 19 of 1957, and it will be more convenient to refer to that application by that number E.A. No. 19 of 1957.

2. When E.A. No. 19 of 1957 was presented to the District Court on nth July, 1955, it was ordered on 19th July, 1955 to be returned for the rectification of certain defects. The defects pointed out were:

(1) cause-title is incorrect ; and (a) since E.A. No. 42 of 1955, put in by the petitioner has been dismissed on 13th July, 1955, it should be stated how this application is maintainable. Authority, if any, to be stated.

The respondent was allowed ten days within which to remedy these defects. On 29th July, 1955, E.A. No. 19 of 1957 was re-presented withoutrectifying these defects, and the respondent asked for time within which to comply with the requisition of the District Court. Further time was granted on 1st August, 1955. But again, on nth August, 1955, the respondent filed an application asking for more time. Three weeks further time was granted on 12th August, 1955. On 2nd September, 1955, the respondent applied for yet more time which was granted by the order dated 3rd September, 1955. The respondent wanted more time and finally on 26th September, 1955, the District Judge ordered three weeks' further time granted as a last chance.

3. To comply with the order of the District Court, E.A. No. 19 of 1957 should have been re-presented within three weeks of 26th September, 1955, after rectifying the defects that had been pointed out on 19th July, 1955. The respondent did not re-present the petition till 16th February, 1956, when he applied in E.A. No. 23 of 1956 to condone the delay in the re-presentation of E.A. No. 19 of 1957.

4. The petitioners lodged their objection in a counter-affidavit filed in E.A. No. 23 of 1956. But the learned Judge passed an order dated 24th December, 1956 that the delay be condoned. It is the correctness of that order that the petitioners challenge by this application to revise the order of the learned District Judge.

5. Learned Counsel for the petitioners did not deny that the learned District Judge had jurisdiction to excuse the delay. The contention was that the discretion vested in the learned District Judge had been exercised on such erroneous grounds that it justified interference in revision by this Court.

6. The contention of the respondent was that the delivery effected on 12th June, 1955 was a symbolical delivery and that he continued all along in possession. He filed E.A. No. 42 of 1955 requesting the Court not to record delivery, but that application was dismissed. That was referred to in that endorsement of the District Judge on E.A. No. 19 of 1957, on 19th July, 1955. What the respondent wanted in E.A. No. 19 of 1957 was re-delivery of possession, which would only be on the footing that he was out of possession from 12 th June, 1955.

7. Independently of the proceedings in the civil Court in E.A. No. 42 of 1955 and E.A. No. 19 of 1957, proceedings went on in criminal Courts, first under Section 144 and later under Section 145, Criminal Procedure Code. The position taken by the respondent in the proceedings under Section 145, Criminal Procedure Code was that the respondent continued in uninterrupted possession of the land, and he prayed that that possession should be maintained. The proceedings under Section 145, Criminal Procedure Code were disposed of by the Magistrate on 28th October, 1955. The respondent's claim to remain in possession was upheld by the learned Magistrate. The petitioners moved the High Court to revise the orders of the Magistrate, and by its order dated 9th February, 1956, this Court set aside the order of the Magistrate dated 28th October, 1955, passed in M.C. No. 2 of 1955. It was after the examination of the proceedings under Section 145, Criminal Procedure Code, with the order of this Court dated 9th February, 1956 that the respondent re-presented E.A. No. 19 of 1957 to the District Court on 16th February, 1956, with, as I said, E.A. No. 23 of 1956 to excuse the delay.

8. The learned District Judge upheld the contention of the respondent:

It is clear from the above proceedings that the applicant (i.e., the respondent) would have bona fide believed that there was no need to re-present the execution application till the order passed in M.C. No. 2 of 1955 was reversed by the High Court on 9th February, 1956. The circumstances of the case do not show that the delay in re-presenting the execution application was either deliberate or wanton. It, therefore, seems to me that there was sufficient cause for delay in re-presenting the execution application and that this is a fit case in which the delay should be condoned.

It is rather difficult to accept the findings that failure to re-present E.A. No. 19 o f 1957 within three weeks of 26th September, 1955 was not deliberate, and that the respondent acted in good faith. That the respondent did not re-present E.A. No. 19 of 1957 within the time allowed by the Court did not admit of any doubt. From what I have referred to already, it should be clear that at that time proceedings under Section 145, Criminal Procedure Code, were pending before the Magistrate, and on the respondent's own showing he waited for the termination of these proceedings before deciding to pursue all the remedies he thought were open to him in E.A. No. 19 of 1957. There was certainly enough to show that the respondent elected not to re-present E.A. No. 19 of 1957, and the ground on which he made that election was that proceedings were pending under Section 145, Criminal Procedure Code. It should be remembered that the basis of the application No. 19 of 1957 was that he was not in possession while the basis of his claim in proceedings under Section 145, Criminal Procedure Code was quite the reverse, that he was in possession. Learned Counsel for the petitioners was right when he pointed out that, if E.A. No. 19 of 1957 had been presented in time and numbered, and notice thereof had been given to the petitioners, they would have been in a position to put the respondent's own averments as evidence in proceedings under Section 145, Criminal Procedure Code that the respondent was not in possession, and urge that the representations to the Magistrate to the contrary should not be accepted.

9. The defects in E.A. No. 19 of 1957 which the respondent had to remedy were only two, and they were fairly simple in scope. In the applications the respondent made from time to time for extension of time within which to remedy the defects no reference was made to the pendency of the proceedings under Section 145, Criminal Procedure Code. The plea put forward at that stage was that the relevant papers were not available, to the respondent and that they were with counsel at Madras. It was only in the affidavit filed in E.A. No. 23 of 1956 that the respondent put forward the specific plea, that it was because of the pendency of the proceedings under Section 145, Criminal Procedure Code, culminating with the order of the High Court on 9th February, 1956, that the respondent re-presented E.A. No. 19 of 1957 and he pleaded that he refrained from re-presenting the papers in good faith because he was pursuing diligently remedies open to him under Section 145, Criminal Procedure Code.

10. It is rather difficult to agree with the learned District Judge that the respondent established good faith right through. What had to be examined was whether the respondent was actuated by good faith at the time he had to re-present E.A. No. 19 of 1957, which was within three weeks of 26th September, 1955. At that time the proceedings under Section 145, Criminal Procedure Code, had not been disposed of. The fact that those proceedings were pending and the further fact that in these proceedings the respondent was taking up the position, that he was in actual physical possession of the lands, were not brought to the notice of the learned District Judge. They were brought to the notice of the learned District Judge only in the affidavit when E.A. No. 19 of 1957 was re-presented on 16th February, 1956.

11. I have already referred to the possibility of the effect of the affidavit in E.A. No. 19 of 1957 with the basis that the respondent required re-delivery of the land, if that affidavit had been made available to the petitioners for the proceedings under Section 145, Criminal Procedure Code. Per contra if the proceedings under Section 145, Criminal Procedure Code and the basis of the respondent's claim thereunder had been brought to the notice of the District Court in E.A. No. 19 of 1957, that the respondent continued to be in possession, the petitioners as respondents, would have been in a position to point out to the District Court that no question of re-delivery as such under Order 21, Rule 100, Civil Procedure Code, could apply to a person who claimed that he was still in physical possession of the lands, despite delivery under orders of Court on 12th June, 1955.

12. If the learned District Judge had considered how mutually inconsistent were the stands taken by the respondent in the proceedings in E.A. No. 19 of 1957 and in the proceedings under Section 145, Criminal Procedure Code, whether the learned District Judge would have come to the conclusion, that the respondent acted right through in good faith is extremely doubtful. Learned Counsel for the respondent urged that the unfortunate position of the respondent was that he had to take inconsistent positions; one that he was out of possession with reference to the proceedings in the civil Court, because he wanted to avail himself of the opportunity of filing an application under Order 21, Rule 100, and the other that he was in possession, which was the basis he put forward in proceedings under Section 145, Criminal Procedure Code. I am not for a moment saying anything whether the respondent was entitled to take up such inconsistent pleas or whether he was bound to do so by circumstances beyond his control. All I am now concerned with is whether the plea of good faith put forward by the respondent and accepted by the learned District Judge had any real basis at all. That basis was lacking because at no time prior to 16th February, 1956, did the respondent come forward with the truth in asking the District Court virtually for permission not o proceed with the proceedings in E.A No. 19 of 1957. That the respondent sought to achieve by the simple expedient of not re-presenting the papers, because if the papers had been presented in time after rectifying the two defects pointed out by the Court, the petition would have been numbered and the petitioners would have had notice of those proceedings.

13. Learned Counsel for the respondent contended that even if it was a case of erroneous exercise of discretion by the learned District Judge, this Court could not interfere at this stage, because the enquiry into E.A. No. 19 of 1957 is almost completed and orders are awaited. The question is, was the learned District Judge justified in coming to the conclusion that the respondent acted in good faith. If that basis for the plea of good faith failed, there was no basis for excusing the delay in the re presentation of the papers. What I have said above is sufficient to show that there was really no material on record on which the learned District Judge could have come to the conclusion that the respondent acted in good faith. Reluctant though this Court should be to interfere in revision where the decision of this question at issue really depended upon the exercise of the discretion vested in the lower Court, this would appear to be a case where that discretion was exercised on an erroneous assumption, for which there was no real basis at all, that the respondent acted in good faith. The petition is allowed with costs. The order of the learned District Judge in E.A. No. 23 of 1956 is set aside.


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