A.Swathi vs P.K.Jayagopal
2021 Latest Caselaw 427 Mad

                                                                        C.R.P.NPD No.189 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 06.01.2021

                                                     CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                             C.R.P.NPD No.189 of 2017

                     1.A.Swathi
                     2.A.Deekshikka                                          ..Appellants
                                                       Vs.

                     1.P.K.Jayagopal

                     2.J.Shanthi

                     3.J.Lakshmidharan

                     4.J.Thiruvadhanan

                     5.C.Sumathi

                     6.K.Ashok kumar

                     7.A.Kalaiselvi

                     8.N.Nirmala

                     9.N.Prabhuram

                     10.N.Ramesh
                     11.A.Sairam

                     12.P.Loganathan



                     1/5
https://www.mhc.tn.gov.in/judis/
                                                                             C.R.P.NPD No.189 of 2017

                     13.A.S.Karthikeyan

                     14.L.Kiruthika Nandini

                     15.T.Subha
                                                                             ..Respondents
                     Prayer : Civil Revision Petition filed under Section 115 of CPC, against
                     the fair and decreetal order dated 21.11.2016 made in I.A.No.84 of 2015
                     in O.S.No.192 of 2012 on the file of the first Additional District Court,
                     Namakkal.


                                   For Appellants     : N.Manokaran

                                   For Respondents    : Mr.S.Mayilnathan for RR1 to 4, 14 & 15
                                                      : No appearance for RR5 to 11
                                                      : Batta due for RR12 & 13


                                                     JUDGMENT

The civil revision petition is filed to set aside the fair and

decreetal order dated 21.11.2016 made in I.A.No.84 of 2015 in

O.S.No.192 of 2012.

2. The suit was instituted for partition and the same was dismissed

by the Trial Court for default on 03.02.2015. An interlocutory

application in I.A.No.84 of 2015 was filed by the appellants to condone

the delay of 89 days in filing the petition to set aside the exparte order.

https://www.mhc.tn.gov.in/judis/ C.R.P.NPD No.189 of 2017

3. The contention of the learned counsel for the appellants is that

the interlocutory application filed to set aside the exparte order was

numbered as I.A.No.85 of 2015 and both the applications to condone the

delay and to set aside the exparte order were dismissed. Against

I.A.No.84 of 2015, C.R.P.No.189 of 2017 is filed and against I.A.No.85

of 2015, C.M.A.No.108 of 2017 is filed.

4. The suit was instituted for partition. Thus, the rights of the

parties are to be crystalised. On mere technical grounds, the rights of

the parties cannot be declined. This Court is of the considered opinion

that the delay of 89 days in filing the petition to set aside the exparte

order ought have been condoned by the Trial Court and the suit is to be

decided on merits and by affording opportunity to the parties concerned.

the suit sought to be tried and disposed of on merits except on

exceptional circumstances where the parties have intentionally

prolonged and protracted the litigation.

5. In the present case, immediately after the exparte order, the

appellants filed an interlocutory application to condone the delay of 89

https://www.mhc.tn.gov.in/judis/ C.R.P.NPD No.189 of 2017

days and filed another application to set aside the exparte order. This

being the factum, the fair and decreetal order passed on 21.11.2006 in

I.A.No..84 of 2015, is set aside and subsequently, C.R.P.NPD.No.189 of

2017 stands allowed. No costs.

06.01.2021

Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order gsk

To The first Additional District Court, Namakkal.

https://www.mhc.tn.gov.in/judis/ C.R.P.NPD No.189 of 2017

S.M.SUBRAMANIAM, J.

gsk

C.R.P.NPD No.189 of 2017

06.01.2021

https://www.mhc.tn.gov.in/judis/