Madras High Court
Tiruchendur Arulmigu ... vs R.Ramakrishnan on 6 December, 2021
C.R.P.(MD) No.1740 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.1740 of 2014
and
M.P(MD) No.2 of 2014
Tiruchendur Arulmigu Subramanian Swami Idol,
through its the Executive Officer,
Joint Commissioner
... Petitioner
Vs.
1.R.Ramakrishnan
2.Tamil Nadu Government
Through its District Collector,
Thoothukudi. ... Respondents
PRAYER:- Civil Revision Petition filed under Section 115 of Code of
Civil Procedure, to set aside the fair and decreetal order passed in
I.A.No.671 of 2013 in O.S.No.147 of 2010 on the file of the District
Munsif Court, Tiruchendur, dated 05.03.2014.
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C.R.P.(MD) No.1740 of 2014
For Petitioner : Mr.M.Muthugeethayan
For R-1 : Mr.R.Subramanian
Senior Counsel
for Mr.N.C.Asok Kumar
For R-2 : Mr.N.GA.Natraj
Government Advocate
ORDER
The plaintiff temple, aggrieved by the order of the learned
District Munsif, Tiruchendur, in condoning the delay of 62 days in filing
the application to set aside the ex parte decree dated 23.04.2013 in
O.S.No.147 of 2010, is the revision petitioner, before this Court.
2.The brief facts, which have culminated in the filing of the civil
revision petition are as follows:-
(i)The temple had filed a suit for declaring of their title to the suit
schedule properties and to recover possession of the same from the first
defendant. The case of the plaintiff temple is that the suit properties
belong to the temple and it is described as a garden land. The first
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C.R.P.(MD) No.1740 of 2014
defendant had trespassed into the suit property in the year 2002 and since
the suit property also includes a poromboke, the second respondent,
namely the State of Tamil Nadu through its District Collector, has been
impleaded as a formal party.
(ii) The first defendant, though served with the summons, had
failed to appear before the Court and the second defendant had filed a
written statement, in which, they had admitted that the suit property was
a garden land belonging to the plaintiff and also included the
Government waste land. They had conceded to a decree being passed in
favour of the plaintiff.
(iii)The learned District Munsif, Tiruchendur, by his judgement
and decree dated 23.04.2013, had decreed the suit as prayed for.
Thereafter, the first respondent herein had filed an application for
condoning the delay of 62 days in filing the application to set aside the
ex parte decree in I.A.No.671 of 2013.
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C.R.P.(MD) No.1740 of 2014
(iv)In the affidavit filed in support of the said petition, the first
respondent would contend that they had not been served with summons
in the suit and in June, 2013, when he met his counsel for filing the writ
petition, he came to know about the ex parte decree. Thereafter, he was
ill and could not immediately meet his Advocate at Tiruchendur to take
steps to set aside the ex parte decree. In the process, there occurred a
delay of 62 days. This delay is neither wilful nor wanton, but for the
reason stated above.
(v) The petitioner temple had filed a very detailed counter in which
they had denied the statement made by the first respondent and had
contended that the first respondent was in the habit of frequently
changing his address and that for each proceeding, a different address
was given as the address for service. He would submit that the first
respondent was very much aware about the proceedings and the passing
of the ex parte decree, but deliberately allowed an ex parte decree to be
passed with an intent to protract the proceedings. The petitioner would
further submit that the first respondent was already contesting the writ
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C.R.P.(MD) No.1740 of 2014
petition, the review petition, etc., and therefore, the allegation that they
were unaware about the proceedings, is totally erroneous. Along with the
counter, the petitioner has filed around seven documents and all are
pertaining to the various litigations pending between the petitioner
temple and the first respondent herein.
(vi)It appears that the learned District Munsif, Tiruchendur had
condoned the delay stating that the summon has been sent to the wrong
address and that service had been completed on the basis of the
substituted service, without issuing notice to the correct address.
Therefore, the learned District Munsif was of the opinion that sufficient
cause has been shown and consequently, allowed the application.
Aggrieved by the same, the petitioner temple is before this court.
3.The main grievance of the revision petitioner is that the learned
District Munsif has not referred to any of the documents that had been
filed on their side which according to the counsel would go to show that
the first respondent has been aware about the proceedings in the suit and
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C.R.P.(MD) No.1740 of 2014
the passing of the ex parte decree, that apart, he is in the habit of giving
different addresses for different proceedings. The learned counsel
appearing for the temple would submit that if these documents had been
considered by the learned District Munsif, he would have come to learn
that the first respondent had approached the Court with unclean hand.
He therefore sought to have the order passed in I.A.No.671 of 2013 set
aside. It is also informed by the learned counsel for the petitioner temple
that the possession of the building has also been taken over by the temple
in execution proceedings and the building standing on the suit property
has been razed to the ground.
4.Per contra Mr.R.Subramanian, learned counsel appearing on
behalf of the first respondent would contend that a mere perusal of the
judgment would go to show the total application of mind on the side of
the learned District Munsif, Thiruchendur. He would submit that
admittedly summons had not been served on the first respondent.
Without service of summon, he could not have been set ex parte.
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C.R.P.(MD) No.1740 of 2014
5.Heard the learned counsel appearing on either side and perused
the records.
6.On hearing the arguments of both counsel, it is clearly evident
that the only grievance of the revision petitioner is that their documents
have not been considered by the Court below. A perusal of the order
passed by the learned District Munsif would reflect the above fact.
Therefore, without going into the merits of the petition, it would suffice
to remit the interlocutory application back to the learned District Munsif,
Tiruchendur, for fresh consideration. The learned District Munsif,
Tiruchendur, shall take into consideration the documents that have been
filed by the petitioner/ plaintiff and after affording an opportunity to both
parties pass a speaking order.
7.In the result, this Civil Revision Petition is allowed and the order
passed in I.A.No.671 of 2013 in O.S.No.147 of 2010 by the learned
District Munsif, Tiruchendur, is set aside and I.A.No.671 of 2013 is
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C.R.P.(MD) No.1740 of 2014
remitted back to the learned District Munsif, Tiruchendur, to consider
same afresh after hearing both parties and considering the documents
filed by both sides. The learned District Munsif, Tiruchendur, shall
conclude the exercise within a period of one month from the date of
receipt of a copy of this order.
06.12.2021
Index:Yes/No
Internet:Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:-
The District Munsif,
Tiruchendur.
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C.R.P.(MD) No.1740 of 2014
P.T.ASHA, J.
cp
C.R.P(MD)No.1740 of 2014
and
M.P(MD) No.2 of 2014
06.12.2021
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