Madras High Court
Murugaveni vs Kuppammal on 30 November, 2021
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
CRP.NPD.No.1103/2019 & CRP.PD.No.1104/2019
and
CMP.No.7254/2019
[Video Conferencing]
1.Murugaveni
2.Prabu
3.Usha
4.Manigandan .. Petitioners
in both CRPs
Vs.
Kuppammal .. Respondent
in both CRPs
Common Prayer :- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the judgment and decree passed by
Additional District Court (Fast Track) Arani, dated 03.08.2018 made in
C.M.A.No.11/2017, dated 04.08.2018 made in C.M.A.No.4/2017
confirming the fair and final order passed by Sub Court, Cheyyar dated
28.01.2010 made in I.A.No.40/2009 and I.A.No.39/2009 in
O.S.No.26/2006.
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
Mr.B.Jawahar
For Petitioners : in both CRPs
Mr.K.G.SenthilKumar
For Respondent : in both CRPs
COMMON ORDER
(1) These two Civil Revision Petitions are filed by the defendants in
O.S.No.26/2006 on the file of Sub Court, Cheyyar.
(2) The Suit in O.S.No.26/2006 is for partition and separate possession
of plaintiff 's one half share in all the Suit properties and for future
mesne profits. It is admitted that the Suit was decreed ex parte. The
revision petitioners filed an application under Order IX Rule 13
CPC, to set aside the ex parte decree along with the petition to
condone the delay in filing the petitions to set aside the ex parte
decree. Based on the ex parte decree, the decree holder also has
filed an application for passing of final decree and the final decree
application in I.A.No.79/2007 was also allowed ex parte by an
order dated 28.01.2010. The revision petitioners filed application to
set aside the ex parte decree in Suit and to condone the delay in
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
filing the petition to set aside ex parte decree. Similarly they filed
petition to set aside the ex parte final decree and to condone the
delay. The two sets of applications were returned for some defects.
However, the papers in both sets of applications were represented
with a delay of 396 days. The revision petitioners filed an
application in I.A.No.39/2009 to condone the delay in representing
papers filed to set aside the ex parte decree.
(3) Similarly, the revision petitioners also filed an application in
I.A.No.40/2009 to condone the delay of 396 days in representing
the papers filed to set aside the ex parte final decree.
(4) Since, the delay in representation was beyond the permitted period,
the revision petitioners were required to file an application to
condone the delay in representing the applications. The delay was
396 days in representing both the applications. The Lower Court
dismissed the application to condone the delay of 396 days in
representing the papers on the ground that the delay was not
properly explained.
(5) It was further pointed out that one of the parties who was examined
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
as witness has deposed that the delay was on account of 1st
petitioner suffering from Jaundice for more than one year.
Disbelieving the statement of the party, the applications were
dismissed. Aggrieved by the same, the defendants/revision
petitioners preferred appeals in C.M.A.Nos.4 and 11/2017.
(6) The Appellate Court also confirmed the order of Lower Court in
dismissing the applications filed by the revision petitioners to
condone the delay in representing the applications. Aggrieved by
the same, the above Civil Revision Petitions are filed by the
defendants in the Suit.
(7) The petition filed by the revision petitioners is to condone the delay
in representation. Normally, the delay occurs in representation only
due to some mistake or negligence attributable to the counsels'
clerks and the party to the lis may not know the reason. Hence, this
Court always shows some leniency and indulgence whenever the
application is filed to condone the delay in representation.
(8) Secondly, the applications should be considered on the basis of the
statements that are found in the affidavit filed in support of the
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
application to condone the delay in representation. Merits of the
explanation offered by the party to condone the unexplained delay
in the main application cannot be considered as a reason to reject
the application to condone the delay in representation.
(9) It is of course, true that the revision petitioners in this case made a
false claim that one of the petitioners was suffering from Jaundice
for more than a year and that it was the reason why they could not
file the petition to set aside the ex parte decree earlier and could not
represent the papers on time. This Court, based on the nature of
case pleaded is of the view that an opportunity should be given to
the revision petitioners to contest the Suit on merits.
(10) In a Suit for partition, if an ex parte decree is granted, the
defendants may have genuine grievances as against the final decree
regarding allotment of shares in certain circumstances. This Court
intends to give a fair opportunity to the revision petitioners by
allowing this revision petition. However, the revision petitioners are
liable to pay cost to the respondent to mitigate the consequences of
delay and inconvenience caused to the other side on account of the
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
delay. Therefore, the revision petitions are allowed on condition
that the petitioners shall pay a sum of Rs.10,000 [Rupees Ten
Thousand only] to the respondent.
(11) Accordingly, the Civil Revision Petition is allowed on condition that
the petitioners shall pay a sum of Rs.10,000 [Rupees Ten Thousand
only] to the respondent or respondent counsel by way of Demand
Draft in favour of the respondent or by cash within the period of
two weeks from the date of receipt of a copy of the order. Upon
payment of cost, the order of Additional District Court (Fast Track)
Arani in C.M.A.Nos.4 and 11/2017 confirming the order of the
Sub Court, Cheyyar in I.A.Nos.39 and 40/2009 are set aside and
the applications filed by the revision petitioners for condoning the
delay in representation shall stand allowed.
(12) Learned counsel appearing for the petitioners submitted that the
Suit itself may be directed to be restored. The learned counsel
appearing on both sides submitted that the pendency of other
applications will also cause further delay to the prejudice of both
sides. Therefore, the counsels on either side submitted that the main
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
applications that are filed by the revision petitioners to set aside the
ex parte decree and final decree may also be allowed on payment of
a further sum of Rs.10,000 [Rupees Ten Thousand only] to the
respondent, within the period of three weeks from the date of
receipt a copy of this order. Therefore, the ex parte preliminary
decree as well as the final decree are set aside. The Trial Court is
directed to dispose of the Suit in O.S.No.26/2006 on merits as
expeditiously as possible preferably within the period of four
months from the date of the revision petitioners paying the cost as
directed by this Court in the Civil Revision Petition. Consequently,
connected Civil Miscellaneous Petition is closed.
30.11.2021
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Internet : Yes
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
To
1.The Additional District Court (Fast Track), Arani.
2.The Sub Court, Cheyyar.
Note to Office:
This Court is unable to get the particulars of the various applications
filed before the Lower Court. The copy of applications are not filed. The
numbers given in the certified copies of orders are confusing. In such cases,
the office may insist an affidavit from the counsel or the party explaining
the odds. The Registrar Judicial may also give proper instruction to the
Appeal Examiners as well as to the Subordinate Courts.
S.S.SUNDAR, J.,
CRP.NPD.No.1103/2019
and CRP.PD.No.1104/2019
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CRP.PD.No.1103/2019 and
CRP.PD.No.1104/2019
30.11.2021
https://www.mhc.tn.gov.in/judis 9
