Madras High Court
Karuppayal vs Subbulakshmi on 19 January, 2021
C.R.P.No.34 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 19.01.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P. (NPD) No.34 of 2021
and
C.M.P.No.268 of 2021
1.Karuppayal
W/o.Late.Palaniappan
2.Rajamani
W/o.Muthusamy
3.ArunSakthi
S/o.Late Raju
4.Vignesh
S/o.Late Raju
5.Rajamani
W/o.Late Raju ...Petitioners
Vs
1.Subbulakshmi
W/o.Veerappan
2.Velliyangirisamy
S/o.Veerappan
3.Palaniammal
W/o.Kathiresan
1
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C.R.P.No.34 of 2021
4.Savithiri
D/o.Veerappan
5.Saravanakumar
S/o.Veerappan
6.Kunchammal
W/o.Krishnappan
7.Velliyangiri
M/o.Selvi
8.Chinnakanni
W/o.Late Mani
9.Kuppuraj
S/o.Sathumugi
10.Muthulakshmi
S/o.Subramaniyan
11.Angamuthu @ Raju
S/o.Subramaniyan ...Respondents
PRAYER: Civil Revision Petition filed under Section 115 of the Civil
Procedure Code, 1908 to set aside the Fair and Decreetal Order passed in
I.A.No.1 of 2019 in O.S.No.176 of 2014 dated 14.10.2019 on the file of
the Sub Court at Gobichettipalayam, Erode District.
For Petitioners : Mr.P.R.Balasubramanian
2
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C.R.P.No.34 of 2021
ORDER
The prayer sought for in this petition is to to set aside the Fair and
Decreetal Order passed in I.A.No.1 of 2019 in O.S.No.176 of 2014 dated
14.10.2019 on the file of the Sub Court at Gobichettipalayam, Erode
District.
2. The learned counsel for the petitioner would submit that the
order of the trial Court is manifestly erroneous, illegal, unjust and in any
event is liable to be set aside. The learned counsel further submitted that
the Court below had failed to note that genuine reason has been given for
the delay and when it is so, the Court below ought to have exercised its
discretion in favour of the petitioners. The trial Court ought to have
noted that the petitioners had elucidated the sufficient cause for the delay
of 1236 days caused in filing the petition for setting aside the ex-parte
decree passed in O.S.No.176 of 2014. Further, the learned counsel
contended that when the reason for the delay is duly explained, the Court
below ought to have condoned the delay and should have given an
opportunity to the petitioners to contest the matter on merits. Failing to
do so resulted in grave injustice to the petitioners herein. The order of
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C.R.P.No.34 of 2021
dismissal, in view of Section 5 of the Limitation Act even after stating
sufficient reason, is illegal. It is even settled by the Apex Court of this
Country that the petition under Section 5 of the Limitation Act, must be
construed liberally. But, the order of the trial Court is against the law laid
down by the Apex Court. The order of the trial Court is against the
settled principles of law and against the civil jurisprudence. Hence, the
learned counsel prays for setting aside the order.
3. Heard the learned counsel for the petitioner and perused the
materials available on record.
4. Originally the respondents/plaintiffs filed a suit for partition and
separate possession to divide the suit properties into three equal shares.
From the records, it is seen that the petitioners/defendants were set ex-
parte, as they have failed to contest the case and that the suit is decreed
with cost, against which, the petitioners/defendants filed interlocutory
application seeking to condone the delay and the same was dismissed
with costs. Thereafter, based on the Commissioner’s report, final decree
has been passed, which is under challenge in this revision.
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C.R.P.No.34 of 2021
5. It is the case of the petitioners that inspite of the sufficient
reason given for the cause of the delay, the Court below failed to consider
the same. But, according to the respondents/plaintiffs, the suit property
is the ancestral property and that the plaintiffs and defendants are jointly
enjoying the suit property. Since the defendants have refused to allot the
share of the suit property, they have approached the Court.
6. From the records, it is seen that the suit property is the ancestral
property. It is also seen that the legal heirs of the plaintiffs and the
defendants are in joint possession and enjoyment of the suit property.
Inspite of the sufficient opportunity given by the Courts below, the
petitioners have failed to contest the case. The Court below had rightly
taken note of the decision of this Court relied upon by the respondents in
the case of E.Ramar Vs. S.Pandi Nadar and another reported in (2009)
2 T.N.C.J. 158 (MAD.)(M.B.) and had held that the petitioners, inspite of
having knowledge about the suit proceedings, have come forward with
the Interlocutory Application only with an intention to drag on the
proceedings. The relevant portion of the order reads thus:
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C.R.P.No.34 of 2021
"7. As rightly put-forth by the
respondents/plaintiffs' Counsel, only with a view to
deprive the respondents/plaintiffs from enjoying the
decree obtained by them in the suit and to delay the
execution proceedings laid by them endlessly, the
petitioner/defendant has come forward with the
present case with a false cause and accordingly,
unable to establish the same by placing acceptable
and reliable materials. When it is found that the
petitioner/defendant has knowledge of the suit
proceedings from the inception and deliberately
avoided to contest the same as per law and when the
reaons given by him for his failure to contest the
same are found to be out substantiated with reliable
materials, despite the challenge put to the same by
the respondents/plaintiffs, the petitioner/defendant
should justify the delay with acceptable materials
and when no proper cause has been adduced by the
petitioner/defendant and also the same having not
been established by the petitioner/defendant with
acceptable and reliable materials and when on the
whole, it is noted that the petitioner/defendant has
failed to defend the suit with utmost diligence as per
law, no indulgence can be shown in favour of the
petitioner/defendant for the delay, which had
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C.R.P.No.34 of 2021
occurred in the matter and in such view of the
matter, the Court below is fould to be fully justified
in dismissing the application preferred by the
petitioner/defendant."
8. The petitioners/defendants have not raised any valid ground to
allow this revision. Since the respondents/ plaintiffs have clearly
established their case beyond reasonable doubt, the Court below has
rightly decreed the suit. Therefore, I do not find any illegality or
irregularity in the judgment of the Court below. Accordingly, the Civil
Revision petition fails and the same is dismissed. Consequently,
connected miscellaneous petition is closed. No costs.
19.01.2021
Index:Yes/No
Speaking order/Non-Speaking Order
sbn
https://www.mhc.tn.gov.in/judis/
C.R.P.No.34 of 2021
V.BHAVANI SUBBAROYAN, J.
sbn
C.R.P. (NPD) No.34 of 2021
and
C.M.P.No.268 of 2021
19.01.2021
https://www.mhc.tn.gov.in/judis/
