- (1.) THE above revision is directed against the order of the I Additional Subordinate Judge, Coimbatore, in C.M.A.No.96 of 1991 confirming the order of the I Additional District Munsif, Coimbatore, in I.A.No.517 of 1900 in O.S.No.1450 of 1973.
(2.) I.A.No.517 of 1980 was filed underO.9, Rule 13, C.P.C. read with Sec.151, C.P.C. and Sec.17 of the Limitation Act, by the judgment debtor. He contended that he received a notice on 17.1.1979 in E.P.No.9 of 1979 in O.S.No.1450 of 1973 from the Court and only on that day and subsequent to the verification of the records he came to know that the respondents had obtained an ex parte decree on 8.1.1974. Though the decree had been passed on 8.1.1974, he had no knowledge of the decree till now and there was no negligence on his part in not taking any steps to set aside ex parte decree. Immediately after service of notice in E.P.No.9 of 1979 and verification of the records he has filed the present application to set aside the ex parte decree. He was in possession and enjoyment of the property for over 35 years having taken a vacant site measuring about 62 feet east-west on either side and 65 feet south to north from one Kondaswamy, father of the respondent. He was regularly paying rents and also spent more than Rs.10,000 for putting up the superstructure. The description of property given in the plaint was incorrect. There was a fire accident in the year 1968 and several houses were destroyed and when the affected victims were rebuilding their houses, the respondents filed O.S.No.953 of 1968 alleging falsely that they are trespassers and sought for an injunction to restrain them from rebuilding their houses. He has also filed a detailed written statement and asserted his right under the city Tenants Protection Act. Ultimately, the suit was dismissed. After some years, the respondents kept quiet and were collecting only ground rents from all the tenants. The respondents were not in the habit of issuing any receipt. On 7.12.1971, the respondents issued a notice stating that he was in arrears of rent for 41 months at the rate of Rs.12 per month. a suitable reply was given on 23.12.1971. In the middle of 1973, there were talks of settlement amount the different land owners with their respective tenants and since all the tenants were entitled to the benefits of the City Tenants Protection Act, the negotiations prolonged indefinitely. He had also contacted his lawyer and in the meanwhile the respondents agreed to sell the site in his possession for Rs.1,950 per cent and paid an advance of Rs.1,500 by cheque. At the same time, one Devaraj, son of Venkidusway Naidu being the adjacent land owner, also sold some plots to some of his tenants for the same price. He is also aware of the sale agreement in favour of the respondents. He had also obtained an affidavit from him and filed along with the application for setting aside ex parte decree. He has paid a sum of Rs.2,900 and Rs.2,500 on different date and altogether he has paid Rs.6,900 towards sale consideration. The respondents promised to execute the sale deed after settling with other tenants also. As soon as the payment was completed, it was informed that they will ask their lawyer and his lawyer to withdraw the quit as settled out of Court. Believing the words of respondents, he did not meet his advocate thereafter. Subsequently, respondents told him that they had withdrawn the suit and therefore, he had not knowledge about the ex parte decree. Therefore, according to the petitioner, the decree under execution has been obtained by fraud and the respondents were trying to take steps to evict him from the premises. He has not committed any default in payment of the rents. The notice of termination of tenancy was illegal. He would further state that he had no knowledge of E.P.No.140 of 1976 and that once the respondents took his signature in a filled paper saying that it was a notice for the survey department for sub-dividing the property and that he now suspects that the respondent had cheated him by obtaining his signature with ulterior motives. With the result, revision petitioner herein, prayed for setting aside the ex parte decree passed against him on 8.1.1974. Along with the said affidavit, he had also fled a supporting affidavit from one V.Devaraj claiming to be an adjacent land owner. According to him all the landlords agreed to sell their sites to the tenant for Rs.1,950 per cent and had received an advance of Rs.1,500. He would further state that the defendants also told him that the suit against him was withdrawn. In the counter statement by the respondents, while denying the allegations, the respondents, contended that in E.P.No.140 of 1975, the petitioner had in fact received the notice. Even assuming that he came to know about the decree only later, the petition should have been filed within 30 days for setting aside the ex parte decree. The contention that he was in possession for over 35 years was also denied. The father of the plaintiff had obtained possession of the suit site only in the year 1954 after final decree in O.S.No.257 of 1946. The suit referred to in paragraph No.4 of the affidavit was only an injunction suit and had nothing to do with the present application. Ever since the suit notice had been served on the petitioner on 7.12.1971, he had not paid even a single paise to the plaintiff. No payment was at all made to the plaintiff. The cheque referred to in paragraph No.6 of the affidavit was issued under totally different circumstances. The defendants son needed money and he approached one Purushothaman for money. Since he did not have ready cash, he approached the plaintiff for money and he gave the money to the said Purushothaman, who appears to have handed it over to Chandran. When the amount was returned by the said Chandran, since it was due to the plaintiff, Purushothaman directed Chandran to issue a cheque for Rs.1,500 in the name of the plaintiff. The plaintiff had in turn collected the amount. The said amount was not given as an advance or any such thing towards the sale of the site. The allegation that he had paid sum of Rs.2,900 and Rs.2,500 respectively was absolutely false. The petitioner had full knowledge of E.P.No.140 of 1976 and the notice had been served on him through Court. It was rather peculiar that the petitioner had not mentioned about this and should have stated the same for the first time now. Therefore, the excuse given by the petitioner was totally false. The trial Court on consideration of the mutual submissions held that there was absolutely no justification for the petitioner which had been filed with an unexplained delay of five years and hence, dismissed the application. On appeal also, the Appellate Court confirmed the order of the trial Court and dismissed the appeal. Hence, this revision petition by the judgment-debtor.
(3.) MR.T.R.Mani, learned senior counsel for the petitioner took me through the affidavit of the petitioner and the supporting affidavit and contended that the factum of negotiations between the landlord and tenants had been clearly established. The third party had also in his supporting affidavit mentioned that he was informed by the petitioner that the suit against him had been withdrawn. But he was also examined in the evidence as P.W.2. In fact, P.W.2 was related to the respondents. There was no evidence at all on the side of the respondents in this context and hence the Courts below ought to have accepted the case of the petitioner. The findings otherwise by the Courts below are totally unsustainable and without any evidence. The only document filed on the side of the respondents, the service of notice on the petitioner in E.P.No.140 of 1996 was not properly proved in accordance with law by examining any witness. The payment of Rs.1,500 towards sale consideration by the petitioner has not been disputed and there was also no explanation by the respondents for having received the said amount. The execution of the agreement had also not been denied. Therefore, the petitioner had established fraud and also the respondents had not adduced any rebuttal evidence. In this background the evidence clearly established fraud as alleged by the petitioner. On 7.12.1971, the suit notice which had been issued for which a reply was also sent on 23.12.1971. It is pertinent to note that thereafter nothing happened and the suit was filed only on 28.7.1973 and the petitioner had filed appearance on 12.10.1973. In the meantime it was only due to negotiations, and payment of Rs.1,500 which was received by the respondents, the petitioner did not attend the further proceedings in the suit. In support of his contention that there was no need to file a petition under Sec.5 of the Limitation Act, learned senior counsel relied on Sec.17 of the Limitation Act and Sec.17 of the Contract Act. While Sec.17 of the Contract Act defines the expression "fraud." Sec.17 of the Limitation Act restricts the period of limitation and the limitation would begin to run only after the applicant had discovered the fraud. He also relies on the following ruling in support of his various contentions. In J.P.Mohan Rao v. A.J.Panchalaliah J.P.Mohan Rao v. A.J.Panchalaliah J.P.Mohan Rao v. A.J.Panchalaliah A.I.R. 1978 A.P. 345 Jeevan Reddy, J. as he then was, held that the failure on the part of the decree-holder to perform an undertaking amounted to fraud and the application by the judgment-debtor based on the allegation of fraud would be protected under Sec.17(1)(a) of the Limitation Act. ;