Madras High Court
M.Parasuram vs Mohamed Jaleel on 8 February, 2022
C.R.P.(NPD).No.284 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.R.P.(NPD).No.284 of 2022
and
C.M.P.No.1362 of 2022
M.Parasuram ...Petitioner/Defendant/Revision Petitioner
-Vs-
Mohamed Jaleel ...Respondent/Plaintiff/Respondent
Prayer: Petition filed under Section 115 of the Code of Civil
Procedure against the order dated 02.12.2021 passed in I.A.N.3 of
2020 in O.S.No.34 of 2015 on the file of the learned Subordinate
Judge, Uthangarai.
For Petitioner : Ms.AL.Ganthimathi
1/8
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.284 of 2022
ORDER
The defendant is the revision petitioner. Aggrieved by the
dismissal of his application to condone the delay of 1929 days in
setting aside the ex parte decree he is before this Court.
2.The brief facts which are necessary to dispose of this Civil
Revision Petition are as follows:
The plaintiff/respondent has filed the suit O.S.No.34 of 2015 on
the file of the learned Subordinate Judge, Uthangarai, seeking a
decree for Specific Performance. It is the case of the plaintiff that on
28.03.2013, an Agreement was entered into between the defendant
and the plaintiff in and by which the defendant/revision petitioner
herein had undertaken to sell the suit schedule property for a total sale
consideration of Rs.3,10,000/-. On the date of Agreement of Sale, the
plaintiff had paid a sum of Rs.3,00,000/- as advance and the balance
of Rs.10,000/- was payable within two years from the date of
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C.R.P.(NPD).No.284 of 2022
Agreement. The plaintiff would state that he is always ready and
willing to perform his part of contract. However, the defendant did
not come forward to execute the Sale Deed, constraining the plaintiff
to issue a Legal Notice dated 01.02.2015 calling upon the defendants
to execute the Sale Deed.
3.Though, summons were served on the defendants, the
defendants did not enter appearance. Consequently, by Judgment and
Decree dated 10.07.2015, the suit was decreed as ex parte.
4.Thereafter, the plaintiff had filed REP No.17 of 2016 on the
file of the learned Subordinate Judge, Uthangarai, for executing the
Decree by issuing directions to the defendants to execute and to
register a Sale Deed, failing which, the respondent/plaintiff had
sought for a direction that the Court should execute the Sale Deed in
his favour.
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C.R.P.(NPD).No.284 of 2022
5.Thereafter, the petitioner had filed the impugned petition for
condoning the delay of 1929 days in filing of the petition for setting
aside the ex parte decree. In the affidavit filed in support of the
petition to condone the delay, the revision petitioner would contend
that he has received summons, however, since he is a Driver by
profession he was frequently away from his place. In these
circumstances, he was not able to engage a Counsel. However, the
plaintiff had assured him that he would not execute the Decree. This
commitment was given in a Panchayat organised for resolving the
dispute between him and the respondent/plaintiff. Thereafter, on
02.04.2016, he has received summons from the execution Court even
at that time negotiations for settling the matter was undertaken. The
respondent had assured that he would withdraw the suit. Believing
the words, the revision petitioner had not prosecuted the execution
petition also. Therefore, in these given circumstances, the delay had
occurred.
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C.R.P.(NPD).No.284 of 2022
6.The plaintiff had filed a detailed counter inter alia contending
that it is nothing but an attempt to protract the proceedings. The
respondent had denied the allegations of settlement/withdrawing the
case. The learned Subordinate Judge, Uthangarai, by his order dated
02.12.2021, was pleased to dismiss the said application. The learned
Judge had observed that the reasons set out by the petitioner in his
affidavit filed in support of the petition has not been proved by him in
the manner known to Law and considering the fact that the delay is
for over five years and nine months, the petition is liable to be
dismissed. Challenging this application, the defendant is before this
Court.
7.Heard the learned counsel for the petitioner and perused the
papers.
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C.R.P.(NPD).No.284 of 2022
8.The only two reasons given for not participating in the suit is
that :
(a)The petitioner is a Driver by profession and therefore, he is
traveling outside regularly and
(b)After receipt of the notice, the plaintiff had assured that he
would settle the matter and that he had no intention of proceedings
with the suit. The same reason is given for not participating in the
execution petition.
9.It is seen that the petitioner had received summons in the suit
on 06.07.2015. He has not bothered to follow up the case thereafter,
till he received the summons in the execution petition on 02.04.2016.
Even after that, the petitioner has not immediately taken steps to file
the application to set aside the ex parte order. The impugned petition
has been filed only on 18.11.2020, nearly four years after the receipt
of the notice in the execution proceedings and five years and nine
months after the ex parte decree. The reason given is that the plaintiff
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C.R.P.(NPD).No.284 of 2022
had assured the revision petitioner that they would settle the issue.
These talks are claimed to have been held in the presence of
mediators, however, the petitioner has not thought it fit to examine
any one of these mediators to prove his case. Therefore, the reason
given are not only insufficient but are also not corroborated with
evidence. I do not find any reason as to why the order of the learned
Subordinate Judge, Uthangarai, has to be set aside and accordingly,
the Civil Revision Petition stands dismissed. No Costs.
Consequently, connected Civil Miscellaneous Petition is closed.
08.02.2022
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
mps
To
The Subordinate Judge,
Uthangarai.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.284 of 2022
P.T. ASHA, J,
mps
C.R.P.(NPD).No.284 of 2022
and
C.M.P.No.1362 of 2022
08.02.2022
https://www.mhc.tn.gov.in/judis
