P.Manoharan vs Sathyanarayanan
2021 Latest Caselaw 13429 Mad

                                                                               C.R.P.PD.No.3071 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 07.07.2021

                                                        CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                              C.R.P (PD).No.3071 of 2018
                                                         and
                                               C.M.P.No.17774 of 2018

                    P.Manoharan                                                  ... Petitioner
                                                      Vs.

                    1. Sathyanarayanan
                    2. Baskaran
                    3. Lalitha
                    4. Selvakumar
                    5. Anbazhagan
                    6. Karunanidhi
                    7. Vijayalakshmi
                    8. Premkumar @ Srinivasan                                    ... Respondents

                    PRAYER: Civil Revision Petition filed under Section 115 of the Civil
                    Procedure Code, to revise the order and decretal order passed in I.A.No.248
                    of 2017 in O.S.No.117 of 2006 dated 02.07.2018 pending on the file of the
                    Principal District Munsif, Kancheepuram.


                                           For Petitioner   : Mr.S.Venkatesh

                                           For Respondents : Mr.S.D.S.Philip (for R-1)
                                                           : Ex-parte (for R-2 to R-8)

                    1/10


https://www.mhc.tn.gov.in/judis/
                                                                                  C.R.P.PD.No.3071 of 2018




                                                        ORDER

This Civil Revision Petition is directed as against the fair and decretal

order passed in I.A.No.248 of 2017 in O.S.No.117 of 2006 dated

02.07.2018 on the file of the Principal District Munsif, Kancheepuram,

thereby dismissing the petition to condone the delay of 3751 days in filing

the petition to set aside the ex-parte decree.

2. The petitioner is the third defendant and the first respondent is the

plaintiff. The first respondent filed the suit for partition in O.S.No.117 of

2006 as against the petitioner and other respondents herein. On receipt of

summons, the petitioner and other respondents failed to appear before the

Trial Court and as such, they were set ex-parte and the ex-parte decree was

passed on 26.06.2006. Therefore, the petitioner filed a petition to set aside

the ex-parte decree with a delay of 3751 days in filing the application to set

aside the ex-parte decree, which was dismissed. Aggrieved by the same, the

present Civil Revision Petition is filed.

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

3. The learned counsel for the petitioner submitted that the suit was

filed by the first respondent for partition. The Court below issued summons

and the Bailiff reported to the Trial Court that on 15.06.2006 he went to the

petitioner and other defendants house and they have read the summons and

reported that they were no way connected to the present suit and refused to

receive the same. If the defendants refused to receive the same, the Bailiff

ought to have affix the suit summons in the Door steps, as contemplated

under Order V Rules 17 and 19 of the Civil Procedure Code. Therefore,

there is categorically error committed by the Court below with regard to

serving the summons. Without even proper service of summons, all the

defendants were set ex-parte and an ex-parte decree was passed by the

Lower Court. Insofar as the length of delay is concerned, when the Court

below erred in serving the summons, the length of delay does not matter to

consider the petition to condone the delay. He further submit that the Court

below failed to consider that this Court reported in 2016 (6) CTC 209

(Satbir Singh Bakshi -vs- Saroja) has held as follows:-

"That there is no limitation for filing set aside the ex-parte order even failure to adduce specific reason for

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

non appearance for non filing of written statement is not fatal - Court can condone absence of party to advance cause of justice – Application can be entertained before pronouncement of judgment – Participation of defendants in Trial proceedings cannot be denied even if he does not show any good cause.

4. The learned counsel for the petitioner also submitted that the Court

below failed to consider that reported in 2015 (1) CTC 811 (Ajay Kumar

Gulecha -vs- J.Vijaykumar) the Court while set aside the ex-parte decree

the delay of 1753 days has held as follows:-

“No doubt, delay is huge right over valuable property is involved the rights of the party should be decided on merits – Interest of Justice requires an opportunity be given to respondent”.

5. He further submitted that the Court below failed to consider that in

the case of (Sarasu -vs- Ravi) reported in 2016 (5) CTC 117, this Court

condone delay of 1317 days set aside the ex-parte decree and it has held as

follows -

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

"Applications for condoning delay filed under Section 5 to be dealt with liberally and leniently in order to do substantial justice to parties – Length of delay not a material factor for deciding Applications under Section 5 – Allowing an Application under Section 5 only to permit a party to participate in main proceedings whether issue between parties would be decided on merits – However, if meritorious matter is thrown out on account of technical issue, cause of justice would be defeated”.

6. Per contra, the learned counsel appearing for the first respondent

submitted that the first respondent filed the suit for partition in the year

2006. When the Bailiff went to the premises, all the defendants were alive,

but they wantonly refused to receive the same. Therefore, the Court below

rightly set them ex-parte and passed the ex-parte decree. In fact, after the

ex-parte decree, the first respondent filed a petition in I.A.No.613 of 2013

for passing final decree. In the said final decree application, the petitioner

was duly served notice on 29.01.2014. Even then, the petitioner herein did

not take any steps to set aside the ex-parte decree. He further submitted that

already the first defendant filed a petition to set aside the ex-parte decree

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

with a delay of 2626 days in I.A.No.119 of 2014 and the same was

dismissed and confirmed by this Court in C.R.P.No.43 of 2016 by an order

dated 08.01.2016. Therefore, the petitioner prayed for dismissal of this Civil

Revision Petition.

7. Heard the learned counsel for the petitioner as well as the learned

counsel appearing for the first respondent.

8. The petitioner is the third defendant and the first respondent is the

plaintiff. The first respondent filed the suit for partition and while serving

the summons, the petitioner and other defendants refused to receive the

summons after reading the summons. The only point raised by the petitioner

is that the Court below violated the procedures contemplated under Order V

Rules 17 and 19 of the Civil Procedure Code. The said provisions

contemplated that when the defendants refused to receive or refused to sign

the acknowledgement, the serving officer shall affix the copy of summons

on the outer door or some other conspicuous part of the house, in which the

defendants ordinarily resides. Whereas, in the case on hand, after reading

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

the summons, all the defendants refused to receive the summons. Therefore,

they know the content of the summons and also they stated that they were in

no way connected to the present suit. Therefore, there is no violation of the

procedure as contemplated under Order V Rules 17 and 19 of the Civil

Procedure Code.

9. That apart, the first respondent filed a petition for final decree

application in I.A.No.613 of 2013. In the said final decree application, the

petitioner was duly served notice on 29.01.2014 itself. Whereas, the

petitioner filed a petition to set aside the ex-parte decree only in the year

2017 and absolutely there is no explanation for the said delay and after

coming to know about the preliminary decree, the petitioner did not take

steps to set aside the final decree. In fact, the first defendant in the suit also

filed a petition to set aside the ex-parte decree in I.A.No.119 of 2014 with

the delay of 2626 days in filing the application to set aside the preliminary

decree and the Court below dismissed the same by an order dated

03.09.2015 and the same was also confirmed by this Court in C.R.P.No.43

of 2016 by the order dated 08.01.2016. Therefore, the above judgments

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

relied upon by the learned counsel for the petitioner are not helpful to the

case on hand. Hence, this Court finds no infirmity or illegality in the order

passed by the Court below.

10. Accordingly, this Civil Revision Petition is dismissed.

Consequently, the connected Miscellaneous Petition is closed. No costs.

07.07.2021 Speaking/Non-speaking order Index : Yes/No kv

To

1. The II Additional Principal Judge, Tirupur.

2. The Section Officer, V.R. Section, High Court of Madras.

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

G.K.ILANTHIRAIYAN,J.

Kv

C.R.P (PD).No.3071 of 2018

https://www.mhc.tn.gov.in/judis/ C.R.P.PD.No.3071 of 2018

07.07.2021

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