Madras High Court
Sukumar vs Radha on 7 January, 2021
CRP(MD).No.271 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.01.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP(MD).No.271 of 2014 and
MP(MD).No.1 of 2014
Sukumar .. Petitioner
Vs.
1. Radha
2.Uma ... Respondents
Prayer: Civil Revision Petition filed under Section 115 CPC to set aside
the order passed in I.A.No.311 of 2013 in O.S.No.69 of 2011, on the file
of the II Additional Subordinate Judge, Nagercoil, dated 22.10.2013.
For petitioner : Mr.N. Dilipkumar
For respondents : Mr. M.P. Senthil
1/7
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CRP(MD).No.271 of 2014
ORDER
This revision is directed against the order of the learned II
Additional Subordinate Judge, Nagercoil made in I.A.No.311 of 2013 in
O.S.No.69 of 2011, dismissing the application for condonation of delay of
271 days in filing a petition to set aside the ex parte decree.
2. The suit in O.S.No. 69 of 2011 was launched by the
respondents / plaintiffs, who are the daughters of Chellapan Nadar,
seeking partition and separate possession of their 1/6th share in the suit
property. The revision petitioner / first defendant, who is the son of
Chellappan Nadar, is contesting the suit claiming that the father has left
behind a Will. The written statement was filed along with application for
condonation of delay. The reasons for the delay is that petitioner was
working as a Government School Teacher at Pudukkottai and that there
was a communication gape between him and his counsel. This reason was
not accepted by the trial Court and the trial Court dismissed the
application.
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CRP(MD).No.271 of 2014
3. I have heard Mr.N. Dilip Kumar, learned counsel
appearing for the petitioner and Mr.M.P.Senthil, learned counsel appearing
for the respondents.
4. Mr. N. Dilipkumar, learned counsel appearing for the
petitioner would vehemently contend that the trial Court even after
referring to the Judgment of the Hon'ble Supreme Court reported in
2013(12) SCC 649 (Esha Bhattacharjee Vs. Managing Committee of
Ragunathpura Nafar Academy and others) failed to grasp the basic intent
of the Hon'ble Supreme Court to the effect that the Courts should always
be liberal in condonation of delay. The suit being one for partition and the
delay is only about 271 days, the strict approach of the learned
Subordinate Judge is not justified.
5. Mr. M.P. Senthil, learned counsel appearing for the
respondents would submit that this application has been filed only with an
intention to delay further proceedings and to deny the daughters their just
share in the property. This apprehension of the respondents could be
removed by directing the trial Court to dispose of the suit at an early date.
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CRP(MD).No.271 of 2014
6. Considering the facts and circumstances, I am of the
considered opinion that the delay should be condoned and petitioner
should be given an opportunity to defend the suit on merits and therefore,
this Civil Revision Petition is allowed and the delay of 271 days in seeking
to set aside the ex parte decree is condoned subject to the condition that the
petitioner pays a sum of Rs.5,000/- (Rupees Five Thousand only) to the
counsel for the respondents in this Court on or before 04.02.2021.
7. At this juncture, the learned counsel appearing for both
sides make a joint request that the ex parte decree could be set aside and
the trial Court may be directed to dispose of the suit within the period to
be specified.
8. Considering the said representations of the counsel
appearing on either side, the ex parte decree in O.S.No.69 of 2011 on the
file of the II Additional Subordinate Judge, Nagercoil, will stand set aside.
On production of receipt for payment of cost of Rs.5,000/- as stated above,
the trial Court shall restore the suit to file and dispose of the same within a
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CRP(MD).No.271 of 2014
period of four months, from such restoration. No costs. Consequently, the
connected Miscellaneous Petition is closed.
07.01.2021
Index : yes/no
Internet : yes/no
trp
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.
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CRP(MD).No.271 of 2014
To
1. II Additional Subordinate Judge, Nagercoil,
http://www.judis.nic.in
CRP(MD).No.271 of 2014
R.SUBRAMANIAN,J.,
trp
CRP(MD).No.271 of 2014 and
MP(MD).No.1 of 2014
07.01.2021
http://www.judis.nic.in
