1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.07.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A.(MD)No.362 of 2011 and M.P.(MD).No.2 of 2011 Raja Hussain S/o.Ibrahim Shah ... Appellant/Petitioner/defendant Vs. T.Ramalingam S/o.Thanushkodi Asari represented by his Power Agent T.Umayan S/o.Thangam Asari. ... Respondent/ Respondent/Plaintiff PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1(c) of C.P.C., to set aside the order dated 11.11.2008 made in I.A.No.256 of 2008 in I.A.No.493 of 2007 in O.S.No.55 of 2007 on the file of the 1st Additional District Judge, Madurai. For appellant : Mr.V.S.V.Venkateshvaran For respondent : Mr.T.R.Jeyapalam JUDGMENT The defendant in the suit is the appellant herein. The suit arising out of which O.S.No.55 of 2007 is filed by the respondent/plaintiff for recovery of possession and future damages for use and occupation. The defendant, entered appearance through his pleader, but failed to file his written statement and he was hence set ex-parte on 15.11.2007. The suit stood thereafter adjourned to 30.11.2007 and 04.12.2007 for further proceedings, but the defendant did not till then take any steps to have the ex-parte order set aside and to file his written statement. The suit was then decreed ex- parte on 04.12.2007. The defendant has on 06.12.2007 filed I.A.No.493 of 2007 under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree and the same was taken up on file and notice was ordered for the hearing on 08.01.2008 and the petition was dismissed on 08.01.2008 on the failure of the petitioner/defendant to serve any notice to the respondent/plaintiff. 2.The defendant has again on 07.02.2008 filed I.A.No.84 of 2008 to restore I.A.No.493 of 2007 and I.A.No.84 of 2008 was ordered and I.A.No.493 of 2007 was restored to file. Again the same was dismissed for default on 11.04.2008 for failure to effect notice to other side. The petitioner/defendant again filed I.A.No.256 of 2008 on 30.06.2008 to set aside order of dismissal of I.A.No.493 of 2007 for default on 11.04.2008 and to restore the same. The same is seriously contested by the respondent/plaintiff on more than one https://hcservices.ecourts.gov.in/hcservices/ 2 ground by denying the service of notice upon the respondent/plaintiff and by denying the locus standi of one Mohaideen Pitchai to swear the affidavit filed in support of I.A.No.256 of 2008 and also on facts. The petition is, after serious contest, dismissed on merits on 11.11.2008 on the following three ground; (i)The failure of the petitioner on earlier occasions in not complying with the direction of the Court at every stage of the proceeding amounts to misuse of process of law and to delay and deprive the respondent/plaintiff from enjoying the fruits of the decree; (ii)The affidavit filed in support of the petition is sworn in by neither the petitioner nor his counsel on record, but by one Mohaideen Pitchai, who is a third party; and (iii)There is serious objection raised about the status of the author of the affidavit as the clerk of the petitioner's counsel on record. Though the trial Court dismissed the petition on merits, the operative portion of the order dated 11.11.2008 proceeded as if the petition is dismissed for default with costs. 3.Taking advantage of such error crept in the operative portion of the order, the petitioner/defendant has again on 05.12.2008 filed I.A.No.462 of 2008 to restore I.A.No.256 of 2008 which was dismissed on 11.11.2008 and the same was also seriously disputed by the respondent/plaintiff by narrating in detail about what transpired till date with dates and events wise. However, the trial Court has by order dated 30.11.2009 allowed the petition on payment of cost of Rs.1,000/- on or before 24.12.2009. The correctness of such order is challenged by the respondent/plaintiff in C.R.P.No.2210/2009 and the civil revision petition is, after hearing both sides, allowed on 24.11.2010 by our High Court. Our High Court has, while doing so, taken note of (i) the past history, (ii) nature of the contested order passed dated 11.11.2008 made in I.A.No.256 of 2008, (iii) nature of the error committed in the operative portion of the order dated 11.11.2008 and (iv) the knowledge of petitioner/defendant about the nature of the order dated 11.11.2008. The High Court has, after duly considering all the relevant factors mentioned above, held that I.A.No.462 of 2008 is filed by taking advantage of the clerical mistake committed in the operative portion of the order. One more ground on which our High Court allowed the C.R.P. is that the order made in I.A.No.462 of 2008 restoring I.A.No.256 of 2008 on cost is totally illegal for its failure to duly consider and appreciate the past conduct of the petitioner/defendant. Despite of such adverse order by the High Court, the petitioner has again come forward with this appeal by questioning the correctness of the order dated 11.11.2008. https://hcservices.ecourts.gov.in/hcservices/ 3 4.Heard both sides. 5.This Court is even at the outset inclined to say that the past conduct of the appellant/petitioner/defendant deserves no more indulgence of this Court. As rightly pointed out by the trial Court in the order dated 11.11.2008 made in in I.A.No.256 of 2008, the conduct of the petitioner at the every stage of the proceedings is an abuse of process of law and is with an intention to drag on the proceedings and to deprive the plaintiff to enjoy the fruits of the decree. Though C.R.P.No.2210/2009 is filed against the order made in I.A.No.462 of 2008 in I.A.No.256 of 2008, the High Court is also pleased to consider the order dated 11.11.2008 made in I.A.No.256 of 2008 and the circumstances under which it is made. Even otherwise, the learned counsel for the appellant has not made out any ground much less valid ground to find any infirmity or irregularity in the order under challenge herein. 6.The perusal of the records would also reveal that when I.A.No.493 of 2007 is dismissed for default on 11.04.2008, I.A.No.256 of 2008 to restore the same is filed only on 30.06.2008. When I.A.No.493 of 2007 is dismissed for default on 11.04.2008, the petition to restore the same ought to have been filed within 30 days from the date of the order and as the last day fell during summer vacation, I.A.No.256 of 2008 ought to have been filed on the reopening day after vacation, but the petition is filed on 30.06.2008 which is admittedly beyond the period of limitation, that too without filing any petition to condone the delay with reasons for such delay. Further the affidavit filed in support of petition is sworn in neither by the party nor by the counsel on record, but by one Mohaideen Pitchai claiming himself to be the advocate clerk. As rightly found by the trial Court in the order under challenge, the advocate clerk has no locus standi to file any affidavit for non appearance of either the petitioner or his counsel on record for the hearing on 11.04.2008. Further, when admittedly the author of the affidavit is third party, para 1 of the affidavit proceeds as if the same is sworn in by the defendant. It is further stated that he is the petitioner advocate clerk. But para 3 of the affidavit again proceeds as if his non appearance is neither willful nor wanton. Even assuming it to be true that he has some locus standi to file the affidavit, the same ought to have been filed along with supportive affidavit of either the petitioner or the learned counsel on record. The failure to do so and the nature of the recitals in the affidavit reflects the totally indifferent and callous attitude of the party litigant. 7.Thus the past conduct of the petitioner in committing default at every stage and in misusing the process of law by repeatedly filing application and filing I.A.No.462 of 2008 by taking advantage of the bona fide mistake crept in the order dated https://hcservices.ecourts.gov.in/hcservices/ 4 11.11.2008 and in filing I.A.No.256 of 2008 with the delay, without explaining the delay and without filing any application to condone the delay and without filing supporting affidavit of the competent person, would compel this Court to confirm the order made in I.A.No.256 of 2008. When I.A.No.256 of 2008 itself is not maintainable and is hit by delay, the rejection of the same on facts cannot be either legally or factually assailed in the appeal. The order under challenge in the appeal is in my considered view deserves no interference at all and the appeal is hence liable to be dismissed. 8.In the result, the appeal stands dismissed and the order dated 11.11.2008 made in I.A.No.256 of 2008 in I.A.No.493 of 2007 in O.S.No.55 of 2007 on the file of the First Additional District Court, Madurai is confirmed. Consequently, connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar(Records ) /True Copy/ Sub Assistant Registrar To 1.The First Additional District Judge, Madurai. +1cc to Mr.V.S.V.Venkateshwaran, Advocate, Sr.No. Copy to: The Section Officer, V.R.section, Madurai Bench of Madras High Court, Madurai C.M.A(MD)No.362 of 2011 01.07.2011 gcg SMA/21.10.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/