Madras High Court
Kaliaperumal vs Kalaiselvi on 28 June, 2021
CRP PD.No.1906 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.1906 of 2018
and
CMP.No.11041 of 2018
Kaliaperumal
S/o. Periyaswamy ..Petitioner
Vs.
Kalaiselvi
W/o. Subramanian ..Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of
Constitution of India praying to set aside the fair and decretal order dated
20.03.2018 made in I.A.No.425 of 2017 in O.S.No.583 of 2000 on the file
of the District Munsif cum Judicial Magistrate, Kattumannar Koil.
For Petitioner : Mr.G.Surya Narayanan
For Respondent : Mr.J.Ramakrishnan
ORDER
This Civil Revision Petition is filed to set aside the fair and
decretal order dated 20.03.2018 made in I.A.No.425 of 2017 in O.S.No.583
of 2000 on the file of the District Munsif cum Judicial Magistrate,
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CRP PD.No.1906 of 2018
Kattumannar Koil, thereby dismissing the petition to condone the delay in
filing the petition to set aside the ex-parte decree.
2. The petitioner is the plaintiff and the respondent is the defendant in
the suit. The petitioner herein filed a suit for declaration and injunction in
respect of the suit property. The respondent did not appear before the trial
Court as such he was set ex-parte by the judgment and decree dated
30.12.2002. Immediately, on coming to know about the ex-parte decree, the
respondent filed a petition for setting aside the ex-parte decree with the
delay of 4805 days and the same was allowed. Aggrieved by the same, the
present Civil Revision Petition is filed.
3. The learned counsel for the petitioner submitted that the
respondent did not state any sufficient reasons to condone the delay of huge
number of days i.e., 4805 days in filing the petition to set aside the ex-parte
decree. He further submitted that the respondent engaged a counsel in the
suit and also filed a written statement. Thereafter, he did not even enquire
his counsel about the pendency of the suit for the past 15 years. The
respondent failed to state any single reason for his absence before the trial
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CRP PD.No.1906 of 2018
Court and also failed to enquire his counsel on record about the pendency of
the suit. Without considering same, the Court below mechanically allowed
the petition for condoning the delay of 4805 days in setting aside the ex-
parte decree. In support of his contention, he relied on the Judgment
reported in 2007 2 CTC 643 in the case of G.Jayaraman Vs. Devarajan.
4. Per contra, learned counsel for the respondent submitted that the
original petitioner filed a suit for declaration and permanent injunction in
respect of the suit property before the District Munsif, Viruthachalam in
O.S.No.77 of 1996. After receipt of summons in the said suit, the
respondent appeared through his counsel and also filed his written
statement. Thereafter, due to the administrative reasons, the suit was
transferred to the file of the District Munsif, Kattumannarkoil on
11.07.2000. Thereafter, no notice was served to the respondent and only on
paper publication, he was set ex-parte and an ex-parte decree was passed
against him. That apart, though the respondent filed a written statement, the
trial Court without even framing any issues, mechanically allowed the
petition and passed the judgment not in consonance with Order 20 Rule 4 of
CPC. Therefore, the ex-parte judgment passed by the court below is not a
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CRP PD.No.1906 of 2018
judgment in the eye of law and explicitly illegal. Therefore, the Court
below rightly allowed the petition and had given one more opportunity to
the respondent to defend the suit.
5. Heard both sides.
6. The petitioner is the plaintiff and the respondent is the defendant in
the suit. The petitioner filed a suit for declaration and injunction in respect
of the suit property in O.S.No.77 of 1996 on the file of the District Munsif,
Viruthachalam. On receipt of summons in the said suit, the respondent filed
a written statement. Thereafter, due to the administrative reasons, the suit
was transferred to the file of the District Munsif, Kattumannarkoil on
11.07.2000. Though notice was sent to the respondent, it was not properly
served. As such the petition was ordered. Accordingly, after effecting
paper publication, the respondent was set ex-parte by the decree and
judgment dated 30.12.2002.
7. On a perusal of the ex-parte judgment reveals that it was not
satisfactory and unreasonable to the judgment. As a fact, it is illegal. When
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CRP PD.No.1906 of 2018
the respondent filed his written statement, the Court below ought to have
framed the issues and the points for determination to be determined by the
Court below while passing the judgment. The Order 20 Rule 4 of CPC
would clearly state that the judgments of the Courts shall contain a concise
statement of the case, the points for determination, the decision thereon, and
the reasons for such decision. The impugned judgment does not reflect the
issue involved in the present case. The suit is filed for declaration and
injunction. Therefore, the Court below has to definitely consider the fact as
to whether the petitioner is entitled for the relief of declaration and
injunction in respect of the suit property.
8. The learned counsel for the petitioner had relied on the following
judgment reported in 2007 2 CTC 643 in the case of G.Jayaraman Vs.
Devarajan, which reads as follows:
9. Of course, it is the consistent view taken by
the Supreme Court in various decisions that "sufficient
cause" appearing in Section 5 of the Limitation Act
should be liberally considered and the Court should be
slow in shutting the door of justice to a litigant on the
score of limitation. When the reason for the delay is
properly explained, the Court is to adopt a pragmatic
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CRP PD.No.1906 of 2018
approach to condone the delay when there is no
negligence, inaction or want of bonafide on the part of
the Applicant..............
13. Deprecating the practice of setting aside the
exparte decrees in casual manner, in the decision
reported in Srinivasalu ..Vs.. Krishnammal (100 L.W.
666), Chief Justice M.N.Chandurkar, J., has held as
under:-
"...The present order allowing the petition for
condonation of delay in filing the Petition for setting
aside the exparte decree appears to be obviously the
result of a very liberal attitude and casual manner in
which exparte decrees are being set aside. I had two
occasions earlier to refer to the casual manner in
which exparte decrees are passed and they are
subsequently set aside. The present case is a clear
illustration which justifies the above observations. It is
not possible to absolve the courts from the blame for
the tendency which is growing in the litigants to take
exparte decrees very casually and at leisure make
applications for setting aside them on bald and
general averments which are rarely scrutinised, with
care which such applications and affidavits deserve,
having regard to the stringent provisions of S.5 of the
Limitation Act. In my view, the learned Judge was
clearly in error in condoning the delay in filing the
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CRP PD.No.1906 of 2018
Petition for setting aside the exparte decree. The order
of the learned Judge, is, therefore, set aside. ...."
This Court held that it is not possible to absolve the Courts from the
blame for the tendency which is growing in the litigants to take ex-parte
decrees very casually and leisurely making applications for setting aside
them on bald and general averments which are rarely scrutinized, with care
which such Applications and affidavits deserve, having regard to the
stringent Provisions of Section 5 of the Limitation Act.
9. As stated supra, in any case, the Court below passed ex-parte
judgment without even framing any issues and without considering points
for determination and simply allowed the suit. Therefore, the judgment is
not helpful for the case on hand. Therefore, the Court below rightly allowed
the petition to condone the delay in filing the petition to set aside the ex-
parte decree. However the trial Court allowed the petition without imposing
any cost. Therefore the respondent is directed to pay a sum of Rs.5,000/-
(Rupees five thousand only) to the petitioner within a period of two weeks
from the date of receipt of a copy of this order.
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CRP PD.No.1906 of 2018
10. With the above direction, this civil revision petition is dismissed.
Consequently, connected miscellaneous petition is closed. There shall be no
order as to costs.
28.06.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
dh
To
The Principal District Judge,
Kanchipuram.
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CRP PD.No.1906 of 2018
G.K.ILANTHIRAIYAN,J.
dh
CRP.PD.No.1906 of 2018
28.06.2021
https://www.mhc.tn.gov.in/judis/
