Madras High Court
A.Sekar vs R.Kasthuri on 1 October, 2021
C.R.C.No.2004 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :01.10.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P.(PD).No.2004 of 2016
and
C.M.P.No.10458 of 2016
A.Sekar .. Petitioner
Vs.
R.Kasthuri .. Respondent
PRAYER : Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the fair and decretal order passed in I.A.No.711 of
2010 in O.S.No.325 of 2000 dated 01.07.2013 passed by the Additional
District Munsif Court, Vandavasi, Thiruvannamalai District.
For Petitioner : Mr.N.A.Malai Saravanan
For Respondent : Mr.P.Mani
JUDGMENT
The unsuccessful petitioner herein is the 5th defendant in his
original suit in O.S.No.325 of 2000 filed by the respondent on the file of Sub-
Court Arani, in which, the respondent/plaintiff claimed relief of partition by
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C.R.C.No.2004 of 2016
allotting 2/3rd share in the suit property. The revision petitioner / 5 th defendant,
on the other hand, contended that he is a purchaser of the entire suit property.
Therefore, the revision petitioner has preferred this revision against the order
passed by the learned trial Judge / the Additional District Munsif, Vandavasi,
Thiruvannamalai District in I.A.No.711 of 2010, which was filed by him
under Sections 148 and 151 of CPC praying for extension of time to pay the
costs, which was ordered by the trial Court / the learned Subordinate Judge,
Cheiyar, Thiruvannamalai District in I.A.Nos.61 of 2001 and 62 of 2001 in
which, he prayed to condone the delay in filing a petition to set aside the ex-
parte decree. As he was unwell, he was not unable to pay the costs in time. On
hearing the objection on the side of the respondent, the Additional District
Munsif, Vandavasi, Thiruvannamalai District, dismissed I.A.No.711 of 2010
in O.S.No.325 of 2000. Aggrieved by the said order, he has preferred this
revision petition.
2. Points for consideration is as to “whether the trial Judge was
right in holding that the revision petitioner is not entitled for extension of time
to pay the costs which was ordered in I.A.Nos.61 and 62 of 2001?”
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C.R.C.No.2004 of 2016
3.At the time of the arguments, the learned counsel for the
petitioner submitted that, as a purchaser, he has a right over the property and
after filing of the suit, the plaintiff entered into an agreement with him and
agreed to withdraw the suit. Hence, he was under the bona-fide impression
that the suit was withdrawn and he has not violated the proceedings in
O.S.No.325 of 2000, pending before the Sub-Court, Arani.
4.But, this fact was totally denied by the respondent / plaintiff
submitting that there was no such compromise between the parties. On the
other hand, based upon the preliminary decree, plaintiff filed an application in
I.A.No.205 of 2004 and the same is also still pending without any progress.
5.On a perusal of the records, it reveals that in the year 2000, the
plaintiff filed a suit for partition as a purchaser of 2/3 rd share in the suit
property against the defendants. The 5th defendant / revision petitioner also
claimed the right over the property that he purchased property. But, the
records reveal that this revision petitioner was set ex-parte and ex-parte
preliminary decree was passed in favour of the plaintiff in the year 2001.
Immediately in the year 2002, he filed an application to set aside the ex-parte
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C.R.C.No.2004 of 2016
decree with condone delay petition, which was allowed with costs to be paid
on or before 30.10.2013. Now, the petitioner contended that due to alleged
compromise, he has not followed the suit proceedings.
6.But as rightly pointed out by the respondent's counsel, he
appeared before the trial Court in the final decree proceeding through his
counsel in the year 2006 in I.A.No.205 of 2004. Thereafter, he filed an
application to condone the delay, and that is why, the trial Judge has not
accepted the application for the reason that he knew about the final decree
proceedings, but, immediately he has not taken any steps to set aside the
ex-parte decree by paying the costs. The objection raised by the respondent is
a tenable one, but on seeing the nature of the suit, the claim of partition
requires that in respect of rights of all the parties concerned in the suit
property, is to be adjudicated. Otherwise, multiplicity of proceedings would
arise between the parties, which would not lead to fair adjudication between
the parties.
7.Admittedly, from the year 2000 onwards, the suit for partition
is pending without reaching finality between the parties. At the time of
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C.R.C.No.2004 of 2016
arguments, the learned counsel for the respondent submitted that the plaintiff
is now aged about more than 60 years and he is not able to enjoy the property
during her life time. So, in order to adjudicate the right of the parties, ex-parte
decree would not be a fair adjudication and the right should be decided on
merits by hearing both parties after adducing their evidence.
8.Even the 5th defendant / revision petitioner immediately filed a
petition to set aside the ex-parte decree in the year 2000 itself, which clearly
proves that he wants to contest the case. It is also known fact that the cases
were transferred to another Court and hence there was a delay caused on
account of jurisdiction of Court and the parties should not put to hardships
without no reason.
9.Hence, in the interest of justice, to adjudicate the issue between the
parties fairly, the impugned order passed by the Additional District Munsif
Court, Vandavasi, Thiruvannamalai District in I.A.No.711 of 2010 in
O.S.No.325 of 2000 dated 01.07.2013 is set aside.
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C.R.C.No.2004 of 2016
10.Accordingly, the Civil Revision Petition is allowed and the petitioner
is directed to pay the costs as imposed by the Court below within a period of
four weeks from the date of receipt of a copy of this order. Thereafter, within a
period of three months, the learned trial Judge is directed to dispose the
Original Suit in O.S.No.326 of 2000 itself without any delay. No Costs.
Consequently, connected miscellaneous petition is closed.
01.10.2021
rri
Index : Yes/No
Speaking Order: Yes/No
https://www.mhc.tn.gov.in/judis
C.R.C.No.2004 of 2016
T.V.THAMILSELVI,J.
rri
C.R.P.(PD)No.2004 of 2016
and
C.M.P.No.10458 of 2016
01.10.2021
https://www.mhc.tn.gov.in/judis
