Madras High Court
Paulpandi vs Selvarathinam on 30 November, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.11.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) Nos.415 and 416 of 2018
and
C.M.P.(MD) Nos.1821 and 5781 of 2018
Paulpandi
... Petitioner in both C.R.Ps.,
vs.
Selvarathinam
... Respondent in both C.R.Ps.,
COMMON PRAYER:- This Petition is filed under Section 115 of Cr.P.C., to
set aside the order dated 11.10.2017 and 24.11.2017 made in I.A.No.96 of 2017
in O.S.No.152 of 2006 and in E.A.No.92 of 2016 in E.P.No.2 of 2016 in
O.S.No.152 of 2006 respectively on the file of the learned District Munsif,
Thirumangalam.
For Petitioner
in both C.R.Ps., : Mr.PT.S.Narendravasan
For Respondent
in both C.R.Ps., : Mrs.K.Hema Karthikeyan
COMMON ORDER
The 1st defendant, who is the revision petitioner before this Court, is
challenging the orders passed by the learned District Munsif, Thirumangalam in
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rejecting his applications filed for condoning the delay of 104 days in filing an
application to set aside the ex parte decree and to set aside the ex parte decree.
2.The brief facts, which are necessary for pronouncing the orders in these
revisions, are as follows:-
3.The respondent/plaintiff had filed a suit in O.S.No.152 of 2006 on the
file of the learned District Munsif, Thirumangalam, against the petitioner and
the 2nd defendant for declaration and recovery of possession. The plaintiff
claimed a right to the suit property by virtue of the registered sale deed dated
20.12.2005. It is the case of the plaintiff that the petitioner and the 2nd
defendant, the mother of the petitioner herein, namely, Vasantha were permitted
to reside in the suit property by the plaintiff's vendor, one, Sakthi, in order to
maintain and manage the suit property. The petitioner and the 2nd
defendant/Vasantha had manipulated the house tax assessment with an sole
intent of grabbing the suit property. The said Sakthi had proposed to sell the
property and therefore, the plaintiff had approached Sakthi with a request to sell
the same to him and they had together approached the petitioner and the 2nd
defendant in the 3rd week of December, 2015, asking them to vacate the suit
property and hand over the possession. However, they refused to do so. The
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plaintiff had issued a legal notice on 01.03.2006, calling upon the defendants to
vacate and hand over the possession of the suit property. The defendants
received the same and issued a reply dated 14.03.2006 containing false
allegations. The defendants had setup title to the suit property. Therefore, left
with no other alternative, the plaintiff had come forward with the above suit.
4.It appears that though the defendants had entered appearance and filed
their written statement on 20.11.2006, they did not come forward to cross-
examine the plaintiff and therefore, they had been set ex parte on 12.08.2014.
Thereafter, an ex parte judgment and decree came to be passed on 26.08.2015 in
favour of the plaintiff.
5.Thereafter, the defendants have come forward with the impugned
petitions. In the affidavit filed in support of the said petitions, the 1st
defendant/petitioner would submit that since he was away at Kerala on account
of his being engaged in doing agricultural coolie work, he was unable to contact
his advocate and consequently, the ex parte order came to be passed and
thereafter, the decree. They would submit that the delay is neither wilful nor
wanton, but for the reasons stated above.
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6.The defendants had filed a counter interalia contending that they were
only trying to stall the proceedings, since the plaintiff had already initiated
execution proceedings in E.P.No.2 of 2016. They denied the contention of the
petitioner herein that he was away at Kerala.
7.The learned District Munsif, Thirumangalam on a perusal of the records
and the arguments dismissed the above two applications on the ground that the
plaintiff was very much aware about the suit and its proceedings. The learned
Judge had further held that the suit is of the year 2006 and the E.P. is of the year
2016 and for 10 long years, they had remained ex parte. Therefore, the petitions
deserve to be dismissed. As regards the petition in E.A.No.92 of 2016, the
learned Judge has dismissed the same stating that without having the ex parte
decree set aside, the petition for setting aside the execution proceedings cannot
be maintained. Pending these petitions, the 2nd defendant had expired.
Aggrieved by these orders, the petitioner/1st defendant is before this Court.
8.The reason for dismissing the application to condone the delay of 104
days in setting aside the ex parte order is that for 10 long years, the defendants
have not participated in the proceedings and had remained ex parte. This reason
is incorrect, since the defendants had participated in the proceedings and it was
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only on 12.08.2014 that they had been set ex parte and thereafter, the ex parte
decree came to be passed on 26.08.2015.
9.Heard the learned counsels on either side.
10.Adequate and sufficient reasons have been given by the petitioner to
condone the delay of 104 days in filing the petition to set aside the ex parte
decree. The learned counsel appearing on behalf of the respondent/plaintiff
agreed that the petition for setting aside the ex parte decree may also be ordered
subject to the condition that a time frame be fixed for disposing of the suit.
11.In the result, the Civil Revision Petition in C.R.P.(MD) No.415 of
2018 stand allowed and the order in I.A.No.96 of 2017 in O.S.No.152 of 2006
is set aside. The ex parte decree dated 26.08.2015 is also set aside. Taking into
account the fact that the ex parte decree had come to be passed at the stage
when the chief examination of P.W1 had been concluded, the petitioner/2nd
defendant shall commence the cross-examination of P.W1 within a period of
one week from the date of receipt of a copy of this order. The learned District
Munsif, Thirumangalam shall endeavor to complete the trial within a period of
two months thereafter. Further, since the ex parte decree has been set aside,
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nothing survives for further consideration in the execution proceedings. The
Execution Petition stands dismissed. Therefore, C.R.P.(MD) No.416 of 2018
stands closed. No costs. Consequently, connected miscellaneous petitions are
closed.
Index : Yes / No 30.11.2021
Internet : Yes / No
mm
To
The District Munsif,
Thirumangalam.
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P.T.ASHA, J.
mm
C.R.P.(MD) Nos.415 and 416 of 2018
30.11.2021
https://www.mhc.tn.gov.in/judis
