Madras High Court
C.Avaranjiyammal vs S.Selvaraj on 3 January, 2022
C.R.P.(MD) No.2030 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.2030 of 2019
and
C.M.P.(MD) No.10424 of 2019
1.C.Avaranjiyammal
2.P.Chinnasamy .. Petitioners/Petitioners/
Defendants
-vs-
S.Selvaraj .. Respondent/Respondent/
Plaintiff
Prayer :- Petition filed under Section 115 Civil Procedure Code to set
aside the order passed in I.A.No.230 of 2014 in O.S.No.71 of 2007 on
the file of the District Munsif cum Judicial Magistrate, Bodinayakanur
dated 10.03.2015.
For Petitioners : Mr.R.Rajamohan
For Respondent : Mr.R.Manickam
******
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C.R.P.(MD) No.2030 of 2019
ORDER
(Heard through Video Conferencing)
The defendants are the revision petitioners before this Court
challenging the order, dated 10.03.2015, passed by the learned District
Munsif cum Judicial Magistrate, Bodinayakanur, dismissing the
application filed by the defendants for condoning the delay of 1755 days
in filing the application to set aside the ex-parte decree.
2.The plaintiff/respondent herein had filed a suit in O.S.No.71 of
2007 to declare a Sale Deed dated 12.09.1996 as null and void and for an
injunction restraining the petitioners herein from interfering with his
possession and enjoyment of the suit property.
3.The 2nd petitioner had entered appearance and filed a written
statement refuting the claim of the respondent. However, though written
statement was filed, the petitioners had not participated in the trial of the
suit and therefore, an ex-parte decree came to be passed on 17.08.2009.
The petitioners have thereafter, filed an application for condoning the
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C.R.P.(MD) No.2030 of 2019
delay of 1755 days in filing the petition to set aside the ex-parte decree.
In the said application, the reasons given were that the 2nd petitioner was
suffering from Jaundice and his wife, the 1st petitioner was taking care of
him and thereafter, both of them had gone to Kerala to eke out their
livelihood and when they returned to their native village, they had
contacted their counsel, who had informed the ex-parte decree.
Therefore, they had come forward with the said application.
4.Counter affidavit was filed by the respondent contending that the
reasons given are absolutely false and bereft of details and therefore, the
application deserves to be dismissed.
5.The learned District Munsif cum Judicial Magistrate,
Bodinayakanur, by his order dated 10.03.2015, was pleased to dismiss
the said application on the ground that the delay had not been properly
explained and sufficient cause had not been shown. Challenging the said
order, the defendants are before this Court.
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C.R.P.(MD) No.2030 of 2019
6.Heard the learned counsel on both sides and perused the records.
7.It is no doubt true that the reason for the delay has not been
sufficiently explained. However, a mere reading of the judgment, which
is extracted hereinbelow, compels this Court not only to condone the
delay in filing the petition to set aside the ex-parte decree, but also to set
aside the ex-parte decree:-
“jhth tHf;fhdJ. tHf;Fiur; brhj;ijg;
bghWj;J 12/09/96k; njjpa fpiua Mtzk; null
and void vd mwptpf;ff;nfhhpa[k;. tHf;Fiur;
brhj;Jf;fspy; gpujpthjpfnsh. mtuJ tif
Ml;fnsh. Vb$z;Lfnsh. vt;tpj ,ila{Wk;
bra;af;TlhJ vd;W epue;ju cWj;Jf;fl;lisg;
gpwg;gpf;ff; nfhhpa[k;. ,t;tHf;fpd; bryt[j;
bjhiffis thjpf;F. gpujpthjpfis
brYj;jf;nfhhpa[k;. kw;Wk; ,t;tHf;fpd;
cz;ikf;Fk;. jd;ikf;Fk; Vw;g ePjpkd;wk;
fUJk; ,ju ghpfhu';fis thjpf;F tH';fp
jPh;g;g[k;. jPh;g;ghiza[k; bra;af;nfhhp
thjpahy; ,t;tHf;Fj; jhf;fy; bra;ag;gl;Ls;sJ/
,t;tHf;fpy; gpujpthjpfs; miHf;fg;gl;L
M$uhfhj fhuzj;jpdhYk;. gpujpthjpfis
xUjiyg;gl;rkhf;fg;gl;l epiyapy; thjp M$uhfp
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C.R.P.(MD) No.2030 of 2019
th/rh/M/1 Kjy; th/rh/M/5 tiuapyhd
Mtz';fs; jhf;fy; bra;J tHf;F bka;g;gpf;fg;gl;l
epiyapy; ,t;tHf;fpy; thjp nfhhpago. tHf;Fiur;
brhj;ijg; bghWj;J 12/09/96k; njjpa fpiua
Mtzk; null and void vd mwptpj;J
cj;jputplg;gl;Lk;. tHf;Fiur; brhj;jJf;fspy;
gpujpthjpfnsh. mtuJ tif Ml;fnsh.
Vb$z;Lfnsh. vt;tpj ,ila{Wk; bra;af;TlhJ
vd;W epue;ju cWj;Jf;fl;lis gpwg;gpj;J
cj;jputplg;gl;Lk; kw;Wk; ,t;tHf;fpd; bryt[j;
bjhifa[ld; thjpf;F jPh;g;gk
[ ;. jPh;g;ghiza[k; bra;J
cj;jputplg;gLfpwJ/”
8.A mere perusal of the above referred judgment, which is the
entire judgment, would clearly show the total non-application of mind on
the part of the learned Judge. Though written statement has been filed,
the judgment does not mention the issues that have been framed and also
the reasons as to how the learned Judge had come to the conclusion that
the Sale Deed dated 12.09.1996 is null and void. In the written
statement, that has been filed by the 2nd petitioner, a plea of limitation has
been taken. A Sale Deed of the year 1996 is sought to be declared as null
and void in a suit filed in the year 2007.
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C.R.P.(MD) No.2030 of 2019
9.In view of the fact that the judgment, that has been passed, does
not confirm to the provisions of Order XX Rule 1(2) of the Code of Civil
Procedure, and also the fact that the written statement is already filed, the
order dated 10.03.2015 is set aside, the delay of 1755 days in filing the
petition to set aside the ex-parte decree is condoned and the ex-parte
decree is also set aside. The learned District Munsif cum Judicial
Magistrate, Bodinayakanur, is directed to take the suit on file, frame
issues, if not framed already and dispose of the suit on or before
30.06.2022.
10.With the above observations and directions, this Civil Revision
Petition is allowed. No costs. Consequently, connected miscellaneous
petition is closed.
03.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
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C.R.P.(MD) No.2030 of 2019
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The District Munsif cum Judicial
Magistrate Court, Bodinayakanur.
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C.R.P.(MD) No.2030 of 2019
P.T.ASHA, J.
abr
C.R.P.(MD) No.2030 of 2019
Dated: 03.01.2022
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