Madras High Court
Arumugam vs Senthilkumar on 20 July, 2021
CRP.PD.No.1425 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
CRP(NPD).1425 of 2017
CMP.No.6610 of 2017
Arumugam ... Petitioner
Vs.
1. Senthilkumar
2. Rengaraj. ... Respondents
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the fair and decreetal order dated
10.01.2017 made in IA.No.165 of 2014 in OS.No.120 of 2010 on the file
of the Assistant Sessions Court/Sub Court, Ariyalur.
For Petitioner : Mr.N.Ponraj.
For Respondents : Mr.Valliappan for R1 and R2.
ORDER
(This case has been heard through video conference)
This civil revision petition has been filed seeking to set aside
the fair and decreetal order dated 10.01.2017 made in IA.No.165 of 2014
in OS.No.120 of 2010 on the file of the Assistant Sessions Court/Sub
Court, Ariyalur.
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CRP.PD.No.1425 of 2017
2. The revision petitioner is the 3rd defendant in OS.No.120 of
2010 filed by the respondents/plaintiff seeking for partition and separate
possession of 3/4th share of the 2nd defendant/Palaniandi to be allotted to
them.
3 .The revision petitioner after filing vakalat in the suit
remained exparte, which resulted in exparte decree dated 29.03.2012
being passed against him. The revision petitioner filed IA.No.165 of
2014 in OS.No.120 of 2010 seeking to condone the delay of 726days to
set aside the exparte decree dated 29.03.2012, the same was dismissed by
the trial Court by an order dated 10.01.2017, against which the present
revision has been filed.
4. Mr.N.Ponraj, the learned counsel for the revision petitioner
would submit that the suit was filed by the respondents seeking for a
partition and separate possession of 3/4th share of Palaniandi/2nd
defendant to be allotted to them. The revision petitioner/defendant was
served with the summons and he entered appearance through the counsel,
thereafter, unfortunately, the revision petitioner was affected with
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CRP.PD.No.1425 of 2017
Jaundice and he was referred to Kerala for native treatment and he stayed
at Kerala for taking treatment. In the meanwhile, the trial Court
completed the trial and passed the exparte decree. The learned counsel
would further submit that coming to know of the exparte decree, the
petitioner had filed a petition to set aside the exparte decree along with
IA.No.165 of 2014 to condone the delay of 726 days, in filing the petition
to set aside the exparte decree. The learned counsel would further submit
that the suit is for partition. The trial Court without adjudicating upon
the issues had allowed the suit by a cryptic order which does not satisfy
the provisions under Section 2(9) and Order XX Rule 4 and 5 of CPC.
The learned counsel would further submit that the petitioner attacks the
order of Court below on two grounds (i) that despite showing sufficient
cause the lower Court refused to condone the delay and (ii) that the order
itself being erroneous being not in accordance with relevant provisions of
the Civil Procedure Code, this Court has sufficient power to set aside the
order.
5. In support of his contention, the learned counsel would rely
on the judgment of this Court in M/s.Meenakshisundaram Textiles v.
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CRP.PD.No.1425 of 2017
M/s.Valliammal Textiles Ltd reported in 2011 (3) CTC 168. He would
reiterate that the judgment passed by the trial Court is not in conformity
with the provisions of CPC and thereby the decree has to be set aside.
6. He would further submit that apart from decree and
judgment being erroneous, the petitioner has also shown sufficient cause
for not filing the petition to set aside the exparte decree within reasonable
time. The petitioner was affected with Jaundice and he took native
treatment at Kerala and thereby the petitioner was unable to produce any
document to prove the same. He had filed a sworn affidavit regarding the
same and shown sufficient cause and it was an acceptable one. Whereas
the trial Court finding that the petitioner has not filed any documents to
prove the same has dismissed the petition. He would furthe submit that
the Hon'ble Apex Court in University of Delhi v. Union of India and
others reported in (2020) 13 SCC 745 has held that it is not necessary
that each and every day delay has to be explained in detail. The Court
has to see whether the explanation given by the petitioner is reasonable
and acceptable. He would further submit that in this case, the substantive
interest of the petitioner is involved and if the delay is not condoned, the
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CRP.PD.No.1425 of 2017
petitioner would be put to serious prejudice and hardship and he prayed
that the revision may be allowed on terms and payment of costs.
7. Mr.Valliappan, the learned counsel for the respondents
would contend that in this case summons were duly served on the
petitioner and he having engaged an Advocate failed to appear before the
Court, and thereby he was set exparte as early as on 23.02.2012 and the
petitioner ought to have calculated from the date of setting exparte till the
date of filing petition under order IX Rule 13. If the petitioner is
aggrieved by the judgment and decree, he ought to have filed the appeal
under Section 96 CPC. The Courts cannot aid the litigant who had
purposely intended drag on the case to the prejudice of the plaintiff. He
would further submit that after preliminary decree was passed, the Court
has also passed final decree and at this stage if the order is set aside it
will cause prejudice to the petitioner.
8. Heard the counsel and perused the materials available on
record.
9. In this case the suit in OS.No.120 of 2014 has been filed for
partition, the petitioner having engaged an Advocate had not appeared
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CRP.PD.No.1425 of 2017
before the Court, thereby the Court had set him exparte and ultimately
the exparte decree came to be passed on 29.03.2012. However, it was
not in conformity with the provisions of CPC. The petition to set aside
the exparte decree for condonation of delay had been filed on 25.03.2014
with a delay of 726 days. The reason stated by the petitioner that he had
gone to Kerala for taking native treatment for Jaundice and thereby no
documentary evidence had been filed by the petitioner to prove the same.
10. In M/s.Meenakshisundaram Textiles v. M/s.Valliammal
Textiles Ltd reported in 2001 (3) CTC 168 the Division Bench of this
Court has held that judgment should contain the reasons and should be in
conformity with provisions of Section 2(9) r/w. Order 20 Rule 4 of CPC.
11. In University of Delhi v. Union of India and others
reported in (2020) 13 SCC 745 had held that though every day delay
need not be explained but reasonable and acceptable explanation is very
much necessary.
12. In the opinion of this Court, the routine explanation is
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CRP.PD.No.1425 of 2017
insufficient, the petitioner has not shown any sufficient cause, the finding
of the trial Court that no documentary evidence has been produced is not
erroneous. However, since, the judgment and decree is not in conformity
with the provisions of Section 2(9) and Order 20 Rule 4 and 5 of CPC, it
deserves to be set aside. This Court is of further opinion that on this
score, the revision can be allowed and the order passed in IA.No.165 of
2014 in OS.No.120 of 2010 be set aside on imposition of costs and terms.
13. Accordingly, the Civil revision petition is allowed and the
order passed in IA.No.165 of 2014 in OS.No.120 of 2010 dated
10.01.2017 is set aside and the delay is condoned. The exparte decree
and judgment dated 29.03.2012 made in OS.No.120 of 2010 is set aside
on the following conditions :-
(i) The revision petitioner/defendant is directed to pay a sum of
Rs.20,000/- towards cost directly to the respondents within a period of
three weeks from the date of receipt of a copy of this order.
(ii)The trial Court shall take every endeavour to dispose of the
suit within a period of eight months from the date of receipt of a copy of
this order.
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CRP.PD.No.1425 of 2017
(iii)The petitioner shall cooperate with the trial Court for the
progress of trial. No costs. Consequently, connected miscellaneous
petition is closed.
20.07.2021.
tsh
To
The Assistant Sessions Court/Sub Court, Ariyalur.
A.D. JAGADISH CHANDIRA, J.,
tsh
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CRP.PD.No.1425 of 2017
CRP(NPD)No.1425 of 2017
20.07.2021.
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