Madras High Court
Nallasubramaniam vs Selvakumar on 30 July, 2021
CRP.PD.No.4175 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.07.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.4175 of 2018 and
CMP.No.23006 of 2018
1.Nallasubramaniam
2.Rathinasamy
3.Susila
4.Shanthakumari ..Petitioners
Vs.
1.Selvakumar
P.K.Natarajan(died)
2.P.Thangarai
3.R.Somasundaram ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair order and decretal order dated
21.08.2018 passed in IA.No.24 of 2017 in AS.CFR.No.353 of 2017 on
the file of the Principal District Judge, Tiruppur
For Petitioners : M/s.R.Sashe
for Mr.M.Guruprasad
For Respondents
For R1 : Mr.V.Srikanth
For R2 & 3 : Mr.N.Manokaran
1/6
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CRP.PD.No.4175 of 2018
ORDER
This Civil Revision Petition is filed against the fair order and
decretal order dated 21.08.2018 passed in IA.No.24 of 2017 in
AS.CFR.No.353 of 2017 on the file of the Principal District Judge,
Tiruppur, thereby allowing the petition to condone the delay in filing
the appeal suit.
2. The petitioners are the plaintiffs and the first respondent is
the second defendant. The petitioners filed suit for partition and it
was allowed. Aggrieved by the same, the respondents 2 and 3 alone
filed appeal suit in AS.No.34 of 2015, in which the first respondent
herein is arrayed as sixth respondent. He was absent before the
appellate court and the appeal filed by the respondents 2 and 3
herein was allowed. Aggrieved by the same, the petitioners preferred
second appeal before this Court and it is pending in SA.No.50 of
2020. In the meanwhile, the first respondent herein also filed appeal
suit as against the judgment and decree passed in the partition suit
filed by the petitioners in OS.No.103 of 2006 dated 02.09.2015 with
delay of 452 days in preferring the appeal suit. The same was
allowed and aggrieved by the same, the present civil revision petition
has been filed.
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CRP.PD.No.4175 of 2018
3. The learned counsel for the petitioners would submit that
there is lack of bonafide on the part of the first respondent since he
has been watching the entire proceedings from the suit to the second
appeal filed by the petitioners before this Court. In fact, the second
and third respondents herein filed appeal suit, in which the first
respondent wantonly failed to appear and he was set exparte. After
watching the entire proceedings, all of sudden, he come forward with
the appeal suit with delay of 452 days. He also stated very flimsy
reason to condone the delay of 452 days. Though the first respondent
failed to state sufficient cause, the court below erroneously allowed
the petition.
4. On perusal of the affidavit filed in support of the condone
delay petition revealed that his counsel informed that the copy
application was not ready and the petitioner had no other option than
to believe the same. Thereafter, he was informed that the previous
copy application was misplaced and could not be traced out.
Therefore, he filed another copy application with the certified copy of
the judgment and decree and immediately filed appeal suit.
5. The learned counsel for the first respondent also submitted
that the petitioners filed suit for partition as against their father, who
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CRP.PD.No.4175 of 2018
was arrayed as first defendant in the suit. The case of the first
respondent is that he purchased the property in the year 2001 and he
has got valid case to set aside the judgment and decree passed by
the court below in the appeal suit. Though the petitioners filed second
appeal as against the appeal suit in AS.No.34 of 2015 filed by the
respondents 2 and 3 herein, they cannot prevent the first respondent
to file appeal suit. Therefore, the court below rightly allowed the
petition and this Court finds no infirmity or illegality in the order
passed by the court below.
6. Accordingly, this civil revision petition is dismissed.
However, the first respondent shall pay a sum of Rs.5,000/- (Rupees
Five Thousand only) as costs directly to the petitioners within a
period of two weeks from the date of receipt of copy of this order.
Consequently, connected miscellaneous petition is closed. No order as
to costs.
30.07.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
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CRP.PD.No.4175 of 2018
To
The Principal District Judge,
Tiruppur
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CRP.PD.No.4175 of 2018
G.K.ILANTHIRAIYAN,J.
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CRP.PD.No.4175 of 2018
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CRP.PD.No.4175 of 2018
30.07.2021
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