Madras High Court
Elangovan vs Dhasaradhan on 31 January, 2022
C.R.P(NPD.)No.977 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.01.2022
CORAM:
THE HONOURABLE Mr. JUSTICE R.SUBRAMANIAN
C.R.P.(NPD)No.977 of 2021 and
C.M.P.No.7834 of 2021
P.S.Gnanadoss @ Pappaiyan (died)
1.Elangovan
2.Udhasuriyan
3.Malar @ Malarkodi
4.Johnsirani
5.Tamilarasi
6.Chandra ... Petitioners
Vs.
Dhasaradhan ... Respondent
Prayer: Petition filed under Section 115 of the Civil Procedure Code praying
to set aside the fair and decretal order dated 25.02.2021 passed in I.A.No.1
of 2020 in O.S.No.297 of 2004 on the file of the Principal District Munsif,
Ambur, Vellore District.
For Petitioners : Mr.S.Sriram
For Respondent : Mr.P.A.Sudesh Kumar
ORDER
This revision is directed against the order dismissing the condone
delay of 147 days in filing the petition to set aside the exparte decree that
was passed in I.A.No.1 of 2020 in O.S.No.297 of 2004 dated 25.02.2021.
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C.R.P(NPD.)No.977 of 2021
2. The father of the petitioners viz., Gnanadoss was arrayed as a
defendant in the said suit for declaration, recovery of possession of the
second item and for injunctive reliefs. The said Gnanadoss had filed a suit in
O.S.No.112 of 2003 for a permanent injunction which was pending on the
file of the Additional District Munsif, Ambur. The suit in O.S.No.297 of
2004 which is subject matter of this revision was pending before the
Principal District Munsif, Ambur. Gnanadoss, the original defendant in the
suit filed transfer petition in Tr.O.P.No.7 of 2005 seeking transfer of this
suit to the Additional District Munsif, Ambur to be tried along with
O.S.No.112 of 2003. The said transfer petition was allowed and the suit was
directed to be disposed of along with O.S.No.112 of 2003. Thereafter, the
Additional District Munsif dismissed the suit in O.S.No.112 of 2003 for
default and granted an exparte decree in O.S.No.297 of 2004. Applications
for restoration of suit O.S.No.112 of 2003 as well as to set aside the exparte
decree in O.S.No.297 of 2004 were filed by the deceased Gnanadoss and
both the applications were dismissed. Though he did not file any appeal or
revision as against the order dismissing the application to restore the suit in
O.S.No: 112 of 2003, the deceased Gnanadoss filed C.M.A.No.1 of 2009 on
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C.R.P(NPD.)No.977 of 2021
the file of the Sub Court, Gudiyattam as against the order refusing to set
aside the exparte decree. The said appeal came to be allowed and the exparte
decree was set aside. Thereafter, Gnanadoss died and the defendants 3 to 7
were added as his legal representatives. Since they did not file a written
statement, they were set exparte and the trial was proceeded with. When
exparte decree came to be passed in O.S.No.297 of 2004 on 12.02.2019, the
petitioners herein filed an application seeking to condone the delay of 147
days in filing the application to set aside the exparte decree. In the
interregnum, the Additional District Munsif's Court, Ambur was abolished
and all the cases pending before the said Court were transferred to the
Principal District Munsif, Ambur. Hence, the application seeking
condonation of delay was filed before the Principal District Munsif, Ambur.
Since the exparte decree was granted by the Additional District Munsif,
Ambur, the learned Principal District Munsif rejected the application on the
ground that since the Court had been abolished, he had no jurisdiction to
entertain the application. This order was challenged by the petitioners before
this Court in C.R.P.(NPD).No.3440 of 2019. The said CRP came to be
allowed on 27.11.2019 and the Principal District Munsif, Ambur was
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C.R.P(NPD.)No.977 of 2021
directed to dispose of the application on merits. Pursuant to the said order,
the learned Principal District Munsif has now dismissed the application
seeking condonation of delay of 147 days.
3. Mr.S.Sriram, learned counsel appearing for the petitioners would
vehemently contend that the trial Court was not right in dismissing the
application for condonation of delay of 147 days. Referring to the affidavit
filed in support of the application, the learned counsel would contend that
the petitioners have been diligently prosecuting the case and the delay is
bona fide. He would submit that in view of the nature of the suit and the
prayer sought for therein, the Court must have adopted pragmatic approach
and should have condoned the delay.
4. Contending contra, Mr.P.A.Sudeshkumar, learned counsel
appearing for the respondent would submit that the conduct of the
petitioners would show that they did not deserve any indulgence from this
Court. He would point out that there was already an exparte decree which
was set aside in appeal. However, even thereafter the petitioners were not
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C.R.P(NPD.)No.977 of 2021
diligent in prosecution of the case. He would also point out that the suit for
possession of the year 2004 is dragged on for almost 17 years now.
5. I have considered the submissions of the learned counsel appearing
for the parties.
6. No doubt, as rightly pointed out by Mr.P.A.Sudesh Kumar, learned
counsel for the respondent, the suit was filed in the year 2004 and it is now
17 years old. At the same time, the reason assigned for the delay should also
be looked into. It is stated that the 7 th petitioner, wife of the deceased
Gnanadoss is aged about 70 years in 2019 and the reason assigned is that
she has suffered a fracture. It is also stated that the other petitioners who are
the sons of Gnanadoss are working elsewhere and the daughters are married
and living their respective husbands. It is also stated that the 7th petitioner
Mrs.Chandra has fallen down in the bathroom at K.G.F. while she was
staying in her daughter's house and had suffered a fracture. The trial Court
has however disbelieved the said reason on the ground that no medical
records have been produced.
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C.R.P(NPD.)No.977 of 2021
7. The Hon'ble Supreme Court and this Court have been consistently
holding that the Court must adopt liberal approach in matters of
condonation of delay. Unless it is shown that there was some bad faith or
lack of bona fides on the part of the litigants, the Court must not refuse to
condone delay. In University of Delhi Vs. Union of India and others
(CIVIL APPEAL NOS. 9488-9489 OF 2019 dated 17.12.2019), the
Hon'ble Supreme Court has held that the Court must adopt a liberal
approach in matters of condonation of delay. The Hon'ble Supreme Court
has cited with approval the earlier judgment in Collector, Land Acquisition,
Anantnag v. Katiji, reported in AIR 1987 SC 1353.
8. In view of the above settled position of law, I do not think that the
learned District Munsif was right in conducting a microscopic examination
on the explanation offered for the delay, that too when the delay was about
147 days and therefore, I am unable to sustain the order of the learned
District Munsif and consequently, the revision succeeds. The order of the
learned District Munsif, Ambur is set aside.
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C.R.P(NPD.)No.977 of 2021
9. At this juncture, the learned counsel appearing for the respondent
would submit that, the exparte decree itself could be set aside and the suit
can be directed to be disposed of within a time frame.
10. In view of the statement made by the learned counsel for the
respondent and in order to avoid further delay, exercising the power under
Article 227 of the Constitution of India, the exparte decree granted in
O.S.No.297 of 2004 will stand set aside. The suit is restored to file. The
learned District Munsif, Ambur is directed to dispose of the suit in
O.S.No.297 of 2004 within a period of six months from the date of receipt of
a copy of this order and report copy of such disposal to this Court.
11.Accordingly, this Civil Revision Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
31.01.2022
Index : Yes/No
Speaking Order : Yes/No
Sgl
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C.R.P(NPD.)No.977 of 2021
R.SUBRAMANIAN, J.
Sgl
To
The Principal District Munsif,
Ambur, Vellore District.
C.R.P.(NPD).No.977 of 2021
31.01.2022
https://www.mhc.tn.gov.in/judis
