Madras High Court
P.Periyasamy vs Ponnammal on 16 November, 2021
C.R.P.(NPD) (MD) No.1191 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.1191 of 2021
and
C.M.P.(MD) No.6908 of 2021
1.P.Periyasamy
2.P.Radha
3.P.Ramesh .. Petitioners
-vs-
1.Ponnammal
2.P.Senthamilselvan .. Respondents
Prayer :- Petition filed under Section 115 of Civil Procedure Code
against the fair and decreetal order dated 02.09.2020 passed in I.A.No.
278 of 2019 in A.S.S.R.No.5610 of 2013 on the file of the District Judge,
Karur.
For Petitioners : Mr.A.Mohamed Haneef
For R1 : Mr.Mr.V.Balaji
For R2 : No appearance
******
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C.R.P.(NPD) (MD) No.1191 of 2021
ORDER
The revision petitioners, who were defendants 1 to 3 in the suit in
O.S.No.13 of 2007 on the file of the Subordinate Judge, Karur, are before
this Court challenging the order dated 02.09.2020, passed in I.A.No.278
of 2019 in A.S.SR.No.5610 of 2013 on the file of the District Judge,
Karur.
2.The suit in O.S.No.13 of 2007, preferred by the 1st respondent
herein, was dismissed by judgment dated 31.01.2011, by the learned
Principal Subordinate Judge, Karur as against which the 1st respondent
had preferred first appeal in A.S.SR.No.5610 of 2013 before the District
Judge, Karur with a delay of 214 days. In order to condone the same, the
1st respondent has filed an application in I.A.No.278 of 2019. This
application came to be allowed on costs of Rs.1,500/- and challenging
the same, the petitioners/defendants 1 to 3 are before this Court.
3.The 1st respondent/plaintiff had filed the above referred suit for a
partition and separate possession of her ½ share in the suit scheduled
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C.R.P.(NPD) (MD) No.1191 of 2021
properties and for awarding mesne profits. She had claimed her right to
the suit properties as the legal heir of her father Ramawamy, who was the
owner of the property. The 1st defendant is her brother and defendants 2
and 3 are the sons of the 1st defendant. She had submitted that her father
died intestate and therefore, she was also entitled to a share in the same.
The claim was refuted by the 1st defendant contending that the properties
were ancestral joint family properties of his father Ramasamy and on
27.08.1981, his father Ramasamy and Ramasamy's brother had
partitioned these properties and the suit properties were allotted to the
share of his father Ramasamy. The 1st defendant would contend that he
therefore, became entitled to a share in the property and on 30.04.1999,
there was a partition between Ramasamy and the 1st defendant in which
Item Nos. 1 and 2 of the suit properties alone were allotted to the share of
Ramasamy and the remaining properties were allotted to the share of the
1st defendant. It was also his case that it was he, who was taking care of
his father and he taken it upon himself to discharge the borrowings of his
father, which were taken for his medical necessity. The 1st defendant
would submit that most of the properties, which had been allotted to the
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C.R.P.(NPD) (MD) No.1191 of 2021
share of Ramasamy, had to be alienated in order to meet his medical
expenses. Ultimately, the 1st defendant had contended that if the plaintiff
was found to be entitled to a share in Item Nos.1 and 2 of the suit
scheduled properties, she could claim a share only after paying her
proportionate share of the debts. The learned Principal Subordinate
Judge, Karur by judgment dated 31.01.2011, was pleased to dismiss the
suit and challenging the same, the plaintiff/1st respondent had filed the
first appeal with the delay.
4.In the affidavit filed in support of the condone delay petition, the
plaintiff would contend that after she had received the judgment copy on
04.07.2011, she had misplaced the copy of the same in her house and was
unable to trace it out immediately. She had also thereafter suffered from
Jaundice and was unable to contact her counsel to give necessary
instructions. In the process, the delay had occurred.
5.Defendants 1 to 3 had filed their counter and additional counter
stating that the reason given in the affidavit filed in support of the
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C.R.P.(NPD) (MD) No.1191 of 2021
application was a concocted one and there was no illness as stated
therein. That apart, the plaintiff had filed a petition for cancelling the
Settlement Deed executed by the 1st defendant in favour of his son
Ramesh and on the basis of the same, the District Registrar, Karur had
initiated an enquiry. Ultimately, the complaint was dismissed on
20.08.2018. Thereafter, a criminal complaint was made to the Land
Grabbing Cell, Karur. All of these factors have been suppressed in the
affidavit filed in support of the said application. Therefore, it is the case
of the petitioners that the delay should not be condoned.
6.The learned District Judge, Karur after hearing the parties, held
that adequate reasons had been given and interest of justice demands that
the Court should not shut off a litigant on the basis of a delay which has
been explained. It is this order that has been taken up on challenge by
the petitioners. The ground on which the same is challenged is that no
documentary evidence has been filed in support of the contention that the
plaintiff was suffering from Jaundice and that there is a total non-
application of mind on the part of the learned District Judge, Karur.
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C.R.P.(NPD) (MD) No.1191 of 2021
7.The learned counsel appearing for the petitioners has reiterated
the contentions raised by him in the counter to the condone delay petition
as well as the grounds raised.
8.It is seen that the plaintiff has been diligently contesting the suit
and the judgment of the Trial Court is a contested judgment. The
plaintiff has given adequate reasons for condoning the delay. It has been
time and again reiterated by the Apex Court as well as by this Court that
while considering a petition for condoning the delay, a liberal approach
has to be taken and the Court has to sift through the contentions of the
affidavit to find out if the party has made out a bona fide reason. In the
instant case, as rightly held by the learned District Judge, Karur, the
plaintiff has given sufficient reason for the delay and I do not find any
reason to disagree with the finding and order of the court below. Hence,
the Civil Revision Petition stands dismissed. No Costs. Consequently,
connected miscellaneous petition is closed.
16.11.2021
abr
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C.R.P.(NPD) (MD) No.1191 of 2021
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
1.The District Judge, Karur.
2.The Principal Subordinate Judge,
Karur.
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C.R.P.(NPD) (MD) No.1191 of 2021
P.T.ASHA, J.
abr
C.R.P.(PD) (MD) No.1191 of 2021
Dated: 16.11.2021
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