Madras High Court
Danalatchoumy vs Danadejane on 7 January, 2021
C.M.A.No.2436 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.2436 of 2016
and
C.M.P No.17131 of 2016
1.Danalatchoumy
2.Guitha
3.Rajakumari ..Appellants
Vs.
1.Danadejane
2.Elangovan
3.Ganesan
4.Krishnamurthy ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1 (D) of
CPC, to set aside the fair and decreetal order dated 10.10.2014 made in
I.A. No.31 of 2014 in O.S.No.7 of 2013 on the file of the III Additional
District Judge, Puducherry.
For Appellants : Mr. C.Prabakaran
For Respondents : Mr.R.Muralidharan for R1
R2 to R4 – Notice sent Not known
1/6
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2436 of 2016
JUDGMENT
The fair and decreetal order passed in I.A.No.31 of 2014 in
O.S.No.7 of 2013 dated 10.10.2014 is under challenge in the present
Civil Miscellaneous Appeal.
2. The defendants 1 to 3 are appellants in the present appeal. The
respondents filed a suit for declaration of title, permanent injunction
and for delivery of possession. An exparte decree was passed. The
defendants in the suit had not filed a written statement and before that,
exparte decree was passed by the trial Court. The appellants/defendants
filed an interlocutory application to condone the delay of 22 days in
filing the application to set aside the exparte order and filed a
consequential application to set aside the exparte order.
3. The learned counsel appearing for the appellant made a
submission that the delay in filing the application to set aside the
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C.M.A.No.2436 of 2016
exparte order was dismissed in I.A No.31 of 2014 as if no petition was
filed to condone the delay. This is a factual error committed by the trial
Court. The factum was established by the appellants by enclosing the
order dated 21.01.2014 passed in I.A No.22 of 2014 wherein the trial
Court allowed the petition filed under Section 5 of Limitation Act to
condone the delay in filing the application to set aside the exparte order.
However, the fact remains that the delay in filing the application to set
aside the exparte order was condoned by the trial Court and therefore,
there is no reason whatsoever to set aside the exparte decree enabling
the parties to contest the main suit.
4. This Court is of the considered opinion that all the suits are to
be decided on merits by affording opportunities to the parties concerned.
Certain technical grounds cannot be a ground to deny opportunity to the
parties to establish their case. In the present case, the delay in filing the
application to set aside the exparte petition itself is not enormous and
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C.M.A.No.2436 of 2016
the said application was allowed. This being the factum, the order
impugned is infirmed and accordingly, the fair and decreetal order
dated 10.10.2014 passed in I.A No.31 of 2014 in O.S No.7 of 2013 is set
aside and secondly, the present Civil Miscellaneous Appeal No.2436 of
2016 stands allowed. No costs. The trial Court is directed to dispose of
the suit as expeditiously as possible and preferably within a period of
eight months from the date of receipt of a copy of this judgment.
Consequently, the connected Miscellaneous Petition is closed.
7. The parties are restrained from seeking unnecessary
adjournments. Even in case, adjournments are to be granted on genuine
grounds and the Court should record the reasons. The adjournments on
flimsy grounds are liable to be rejected in limini.
07.01.2021
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2436 of 2016
To
The III Additional District Judge,
Puducherry.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2436 of 2016
S.M.SUBRAMANIAM, J.
uma
C.M.A.No.2436 of 2016
C.M.P.No.17131 of 2016
07.01.2021
https://www.mhc.tn.gov.in/judis/
