Madras High Court
)Arunkumar vs )K.Kalaiyarasi on 24 February, 2021
CRP(MD)No.827 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.82 of 2020
and
CMP(MD)No.5615 of 2020
1)Arunkumar
2)K.Aravind Kumar ... Petitioners
vs.
1)K.Kalaiyarasi
2)S.Rani
3)J.Savithri
4)V.Malarkodi ... Respondents
Petition filed under Section 115 of the Civil Procedure Code, to
call for the records relating to fair and decreetal order passed by the
learned I Additional District Judge (PCR), Trichy, in I.A.No.2 of 2019 in
O.S.No.236 of 2017 dated 06.02.2020 and set aside the same.
For Petitioners : Mr.A.Balakrishnan
For R1, R3 & R4 : Mr.R.Subramanian
For R2 : No appearance
1/6
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CRP(MD)No.827 of 2020
ORDER
Aggrieved by the dismissal of the petition to condone the delay in
filing the petition to set aside the exparte preliminary decree, this
revision petition has been filed.
2.The respondents/plaintiffs filed a suit in O.S.No.236 of 2017 for
partition. On 08.01.2018, the petitioners/defendants 2 and 3 were called
absent and set exparte and exparte order was passed on the same day.
Thereafter, preliminary decree was passed in the suit on 19.04.2018 and
then final decree petition was filed and in that petition also, the
petitioners were called absent and set exparte on 06.12.2018. The
petitioners filed I.A.No.2/2019 to condone the delay of 448 days in filing
the petition to set aside the exparte preliminary decree, which was
dismissed, against which, this revision petition is filed.
3.The learned counsel for the petitioners would state that though
the petitioners were present on 08.01.2018 in the Principal District
Court, Trichy, the case was not called, but on verification, they came to
know that they were set exparte on the same day. He would further state
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CRP(MD)No.827 of 2020
that there is a will in favour of the petitioners and therefore, they ought
to have been given opportunity to establish the same and as per the said
will, the plaintiffs are not entitled to get 4/5th share of the plaint schedule
property. It is also stated that due to nature of occupation, the 2nd
petitioner moved out of station and stayed long time and only after
returning back, he came to know about the exparte decree from the
neighbors and contacted the counsel and filed the above set aside
petition and hence the above delay occurred which is neither wilful nor
wanton. Thus, he would pray to set aside the impugned order and to
condone the delay.
4.The learned counsel for the respondents/plaintiffs would state
that the petition filed by the petitioners to set aside that exparte order
dated 08.01.2018 was returned for certain compliance and the petitioners
did not take steps to represent the same and thereafter exparte
preliminary decree was passed in the suit on 19.04.2018. The
respondents filed final decree application and in that petition also, the
petitioners remained exparte and the Court below passed an exparte
order and appointed the advocate commissioner to visit the suit property.
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CRP(MD)No.827 of 2020
After service of summon, when the advocate commissioner visited the
suit property, the petitioners locked the suit property and thereafter filed
petition to set aside the exparte order passed in the final decree
application. After three months therefrom, they have filed the present
petition to set aside the exparte preliminary decree with the condone
delay petition. According to the respondents, the attitude of the
petitioners in not representing the earlier petition to set aside the exparte
order dated 08.01.2018 and filing the present petition to set aside the
exparte preliminary decree with the delay, does not reflect bonafide and
they have assigned reason in a very routine manner and the Court below
has rightly declined to condone the delay which does not require
interference by this Court.
5.Heard the learned counsel for the petitioners and the
respondents.
6.Perusal of record shows that the respondents/plaintiffs filed a
suit for partition. On 08.01.2018, the petitioners/defendants 2 and 3
were called absent and set exparte and exparte order was passed. The
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CRP(MD)No.827 of 2020
reason assigned by the petitioners is that the 2nd petitioner moved out of
station on account of his occupation. The learned Judge found from the
evidence of PW1/2nd petitioner herein that the petitioners have good
knowledge about the case. Though the petitioners did not represent the
earlier petition to set aside the exparte order dated 08.01.2018, even in
the final decree application also, despite service of notice, the petitioners
remained exparte and the Court has passed the exparte order and
appointed the advocate commissioner to visit the suit property. Though
the 2nd petitioner/2nd defendant had gone out of station for his
occupation, the defendants 1 and 3 were residing in the same locality and
they did not take any follow up action to contest the case and therefore,
the Court below declined to condone the delay. In my opinion, the
reasons stated by the petitioners are not acceptable reasons. Applying
the principles laid down in the judgment in Esha Bhatterjee vs.
Managing Committee of Raghunathpur reported in 2013 (5) CTC
547, I am not inclined to interfere with the order passed by the learned
Judge.
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CRP(MD)No.827 of 2020
J.NISHA BANU, J.
bala
7.Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No
Internet : Yes / No
bala 24.02.2021
To
The I Additional District Judge (PCR),
Trichy.
ORDER MADE IN
CRP(MD)No.827 of 2020
DATED : 24.02.2021
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