Madras High Court
N. Chinappa vs Narayana Chetty on 2 December, 2021
C.R.P.(PD).No.2626 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.2626 of 2021
and
C.M.P.No.19483 of 2021
N. Chinappa .. Petitioner
Vs.
Narayana Chetty .. Respondent
PRAYER: Civil Revision Petition filed under Section 115 of CPC, praying
to set aside the fair and decretal order dated 12.08.2021 passed in I.A.No.4
of 2021 in O.S.No.8 of 2015 on the file of Additional District Judge, Hosur.
For Petitioner : Mr.Mohammed Irfan Ali
for Mr.T.S.Baskaran
******
ORDER
Challenge in this Revision is to the order of the trial Court condoning
the delay of 544 days in seeking to set aside the ex parte decree in O.S.No.8
of 2015.
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C.R.P.(PD).No.2626 of 2021
2. The respondent was the 14th defendant in the suit in O.S.No.8 of
2015. He was arrayed as a defendant on the ground that he has purchased
the property, subject matter of the partition suit, from some of the sharers.
As 14th defendant, he had filed written statement claiming that the suit itself
is collusive one and he has purchased the property on 12.04.2011, even
prior to the filing of the suit.
3. According to the respondent, who was the 14th defendant, the suit
is collusive one to defeat his rights. Many of the defendants in the suit
remained ex parte and the suit was contested by defendants 1, 6 to 8 and 14
only. At the time of trial, PW1 was examined and he was cross examined
by defendants 1, 6 to 8 and the suit was posted for cross examination by the
14th defendant on 12.03.2018. Since the 14th defendant did not avail of the
opportunity, he was set ex parte and the evidence was closed. The 8th
defendant was examined as DW1 and judgment came to be pronounced on
28.04.2018. Terming the judgment as ex parte judgment as against him, the
14th defendant came up with this application seeking condonation of delay
of 544 days in seeking to set aside the exparte decree.
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C.R.P.(PD).No.2626 of 2021
4. According to the 14th defendant, he came to know about the
preliminary decree only upon service of notice in final decree application.
According to him, he had suffered dengue fever and confined to his house
for more than 6 months and after that he had forgotten about the case and he
did not consult his counsel.
5. This application was opposed contending that the reason assigned
would not constitute sufficient cause within the meaning of Section 5 of the
Limitation Act. It was the further contention that the decree is on merits
and therefore the same cannot be set aside. The learned trial Judge who
heard the application accepted the reasons assigned as sufficient cause for
delay.
6. I have heard Mr.Mohammed Irfan Ali, learnted counsel appearing
for the petitioner.
7. Mr.Mohammed Irfan Ali would vehemently contend that the trial
Court was not right in accepting the reasons assigned by the 1st respondent
for the delay. According to him, the delay is nearly 544 days and the fact
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C.R.P.(PD).No.2626 of 2021
that the 1st respondent was suffering from dengue and he was confined to his
house for 6 months is hardly a reason for condoning such a long delay.
8. Condonation of delay is the discretion of the Court. Such exercise
of discretion cannot be interfered with in the Revisional jurisdiction, unless
there are very strong reasons for interfering. A perusal of the order of the
learned District Judge shows that the she had bestowed her attention to the
claim and the rival claim and had concluded that 14th defendant should be
given an opportunity to contest the case on merits. She had also found the
attempt of the 14th defendant as bona fide since he filed the application
within 15 days from the date of service of notice in I.A.No.1 of 2019, an
application for passing of final decree. The learned District Judge has also
imposed costs of Rs.15,000/- payable to the plaintiff. I therefore do not see
any reason to interfere with the order of the trial Court. The Revision
therefore fails and it is accordingly dismissed.
02.12.2021
dsa
Index : Yes/ No
Speaking order / Non-Speaking order
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C.R.P.(PD).No.2626 of 2021
To
The Additional District Judge, Hosur.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2626 of 2021
R.SUBRAMANIAN, J.
dsa
C.R.P.(PD).No.2626 of 2021
02.12.2021
https://www.mhc.tn.gov.in/judis
