Madras High Court
A.Esakki Konar (Died) vs A.Chokayee on 7 January, 2022
C.R.P.(MD) No.2125 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2022
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.2125 of 2012
and
M.P(MD) No.1 of 2012
1.A.Esakki Konar (died)
2.E.Sivan
3.E.Sankaran
4.Lakshmi
5.Rajkumari
6.E.Krishnan
7.E.Annamalai
8.E.Madasamy
9.E.Marimuthu
10.Parvathi ... Petitioners
(Petitioners 2 to 10 are brought on record as Lrs of the deceased sole
petitioner vide Court order dated 21.09.2021 made in CMP(MD) No.
7744 of 2021)
Vs.
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C.R.P.(MD) No.2125 of 2012
A.Chokayee ... Respondent
PRAYER:- Civil Revision Petition filed under Article 227 of
Constitution of India, to set aside the fair order passed in I.A.No.490 of
2011 in O.S.No.85 of 2004 dated 09.02.2012 on the file of the Principal
District Munsif Court, Nanguneri, by allowing this civil revision petition.
For Petitioners : Mr.H.Arumugam
For Respondent : No appearance
ORDER
The above petition is filed by the 12th defendant challenging the
dismissal of his application for condoning the delay of 2526 days in
filing the application to set aside the ex parte decree dated 28.09.2004
made in O.S.No.85 of 2004.
2.The brief facts are as follows:-
(i) The suit in O.S.No.85 of 2004 was filed by the respondent
herein against the revision petitioner and others for partition of the
plaintiff and the third defendant's 1/3rd share in the suit schedule
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C.R.P.(MD) No.2125 of 2012
properties. The plaintiff's case is that the suit schedule property belongs
to one Annamalai Konar who had four sons Subbiah Konar, Sollamuthu
Konar, Velu konar and Esakkikonar. On his death, the four sons had
inherited the properties and were enjoying the possession of the same.
One of the sons Velu konar had released his share in the property in
favour of his brothers. Therefore, Subbiah Konar, Sollamuthu Konar
and Esakki konar each became entitled to 1/3 share. The plaintiff and the
third defendant are the daughters of the Subbiah Konar. The first
defendant is the son of Sollamuthu Konar and the second defendant is
the son of Esakki konar. Subbiah Konar died in the year 1984 and his
widow Pappathi died in the year 1994. Therefore, the plaintiff and the
third defendant became entitled to their father's 1/3rd share in the suit
schedule property. The plaintiff would submit that she is in joint
possession of the property along with the defendants 1 and 2 and has
been paying kist in respect of the lands. She is also residing in the house
put up by her in item Nos.1 and 2 of the suit schedule properties. After
the demise of the plaintiff's husband in the year 1994, the defendants 1
and 2 had started disturbing her possession of the suit property by setting
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C.R.P.(MD) No.2125 of 2012
up a illegitimate claim to the properties. After the plaintiff had
demanded partition of the properties on 07.10.1994, they have started
disturbing her possession and enjoyment of the property. Therefore, the
plaintiff had come forward with the suit. Pending the suit, the defendants
4 to 11 were impleaded as party defendants.
(ii) The written statement had been filed on behalf of the
defendants 1 and 2 contending that the plaintiff was not entitled to 1/3 rd
share and that Annamalaikonar had five sons and not four sons as
contended. Muthumalaikonar was one of the sons of velu konar. They
would further submit that the plaintiff's father Subbiah konar had sold his
share to Velukonar. His brother Muthumalaikonar had also sold the
property to Velukonar and Velukonar in turn sold the property to
defendants 1 and 2. Therefore, the entire suit schedule property belonged
to them. The 12th defendant, who was impleaded, by orders, dated
04.02.2003, is the son of Annamalaikonar. The 12th defendant / revision
petitioner had taken out the impugned application.
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C.R.P.(MD) No.2125 of 2012
(iii) It is his case in the affidavit filed in support of the petition that
he had received summon in the suit and since he was unwell, he had not
appeared before the Court. Thereafter, considering his age and his
forgetfulness, he had not taken steps to appear in the suit. Thereafter, on
23.09.2011 when the plaintiff had come for a function, he had informed
him about the suit and the same being decreed in his favour and that
steps were taken to partition the properties by appointing a
commissioner. Immediately, the petitioner had called his advocate and
after perusing the Court records came to learn that an ex parte order had
been passed against him on 13.11.2001 and thereafter on 28.09.2004 the
judgment came to be pronounced against himself and the other
defendants. The failure to appear before the Court on 13.11.2001 was
not deliberate and therefore, he had sought to have set aside the ex parte
decree dated 28.09.2004.
(iv) The plaintiff had filed a counter inter alia contending that the
affidavit filed in support of the petition is bereft of any reasons and the
revision petitioner does not explain as to why from the year 2001 when
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C.R.P.(MD) No.2125 of 2012
he had been set ex parte, he had not taken any steps though he has
admitted that he had received the summons in the above suit. The
plaintiff would further submit that the decree is not an ex parte decree,
but is the contested one and considering the fact that no reasons have
been given for condoning the delay, the petition deserves to be
dismissed.
(v) The learned Principal District Munsif, Nanguneri, by his order,
dated 09.02.2012, had dismissed the said application. Challenging the
same, the revision petitioner is before this Court.
3.The learned counsel appearing on behalf of the revision
petitioners would contend that the plaintiff has come to the Court with an
absolutely false case. Annamalaikonar the original owner of the property
had nine children namely Avudaiammal, Subbiah, (plaintiff and third
defendant's father), Suddalaimuthu, Velu, Ananjiammal, Muthumalai,
Parvathi, Esakki and Gomathi. The plaintiff has impleaded none of the
above parties except for impleading the second defendant, the son of the
Esakki, the legal representative of the Muthumalai.
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C.R.P.(MD) No.2125 of 2012
4.The respondent/plaintiff though served, has not entered
appearance. Heard the learned counsel for the petitioner and perused the
records.
5. A reading of the ex parte judgment would show that the same is
not the contested one, but an ex parte judgment. The judgment is also
flawed, considering the fact that even according to the amended plaint,
the legal heir of Muthumalai had also been impleaded and even assuming
that the claim as portrayed in the amended plaint is correct, then the
plaintiff and the third defendant would only be entitled to ¼th share as
rightly pointed out by the learned counsel for the petitioner. The plaintiff
has deliberately suppressed the fact that there are five other claimants to
the suit property, who have not been impleaded. It is also informed that
the final decree proceedings have not been initiated. Therefore, in the
light of the above, not only should the delay be condoned, but the
ex parte decree should also be set aside.
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C.R.P.(MD) No.2125 of 2012
6.In the result, this civil revision petition is allowed and the order
dated 09.02.2012 passed in IA No. 490 of 2011 is set aside and the
learned Principal District Munsif, Nanguneri is directed to number and
allow the petition for restoration and thereafter take up the suit, frame
additional issues and proceed to dispose of the suit on or before
31.08.2022.
07.01.2022
Index:Yes/No
Internet:Yes/No
cp
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 Principal District Munsif,
Nanguneri,
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C.R.P.(MD) No.2125 of 2012
P.T.ASHA, J.
cp
C.R.P(MD)No.2125 of 2012
and
M.P(MD) No.1 of 2012
07.01.2022
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https://www.mhc.tn.gov.in/judis
