Madras High Court
M.P.Subramaniam vs P.Thirumalaisamy on 12 January, 2022
C.R.P.(MD)No.569 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.01.2022
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)No.569 of 2020
and C.M.P.(MD)No.3570 of 2020
M.P.Subramaniam ... Petitioner
Vs.
P.Thirumalaisamy ... Respondent
PRAYER:- Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, to set aside the fair and decreetal order 23.04.2019
passed in I.A.No.476 of 2009 in O.S.No.225 of 1999 on the file of the
learned Sub Court, Palani.
For Petitioner : Mr.M.P.Senthil
For Respondent : Mr.J.Bharathan,
for M/S.T.Lenin Kumar.
ORDER
The defendant, whose application for condoning the delay of 70
days in filing the application to set aside the ex-parte decree was
dismissed, has approached this Court.
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C.R.P.(MD)No.569 of 2020
2.Brief facts of the case are as follows:
2.1.The respondent/plaintiff had filed a suit in O.S.No.225 of 1999
for specific performance of an agreement of sale dated 22.04.1996. The
defendant had entered appearance through counsel but, however, had not
taken any steps to file the written statement or participate in the
proceedings. Therefore, an ex-parte decree came to be ordered on
02.07.2002. In the month of September 2009, the petitioner has come
forward with the impugned application for condoning the delay of 70 days
in filing the petition to set aside the ex-parte decree dated 02.07.2002. In
the affidavit filed in support of the said petition, he would submit that his
counsel, who had been engaged by him to defend him in the suit, had
informed him that he would send an intimation as and when he required
the defendant's presence. The petitioner would submit that he had
believed this statement of his counsel. On 3rd week of June 2009, when
the son-in-law of the defendant had come to Trichy on a vacation, in the
course of conversation, he had informed about the pendency of the suit.
He thereafter, made enquiries and on verifying of records, he came to
know that an ex-parte decree had been passed on 02.07.2002 and the
plaintiff had also initiated steps to execute the decree. He would
therefore come forward with the petition to condone the delay in filing
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C.R.P.(MD)No.569 of 2020
necessary application to set aside the ex-parte decree. He would
calculate the delay only from the date of knowledge, i.e., in the month of
July 2009 and he would submit that copies were provided to him on
19.08.2009.
2.2.The respondent filed a detailed counter inter alia contending
that the delay of 70 days is absurd, since the ex-parte decree had been
passed on 02.07.2002 and the application to set aside the same has been
filed only on 10.09.2009. Therefore, the delay is not 70 days and it is
2593 days. The respondent would submit that satisfactory reasons have
not been given as to why for over seven years the petitioner/defendant
had not contacted his counsel to verify about the status of the
proceedings. The execution petition was moved by the
respondent/plaintiff on 08.09.2010 and even in the execution
proceedings, the petitioner herein had remained absent and an ex-parte
order came to be passed. That order has been challenged in CRP.
(MD)No.2029 of 2017. The respondent/plaintiff would also submit that
even in the affidavit filed in support of the condone the delay petition to
set aside the ex-parte decree, it is not stated if a written statement had
been filed. The respondent would state that the written statement had
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C.R.P.(MD)No.569 of 2020
not been filed. The learned Sub-Judge, Palani by order dated 23.04.2019
was pleased to dismiss the application. Challenging the same, the
revision petitioner/defendant is before this Court.
3.The learned counsel appearing for the petitioner reiterated the
contents of this petition and also submitted that the judgment is not a
judgment as provided under Order XX Rule 4 & 5 CPC.
4.The learned counsel appearing for the respondent would submit
that at each stage, the defendant has been protracting the proceedings.
After entering appearance in the suit, he, thereafter failed to keep track
of the status of the suit and consequently, an ex-parte decree came to be
passed on 02.07.2002. Even, the application to set aside the ex-parte
decree has been filed with a delay of two years and nine months. In the
execution proceedings also, the petitioner has not chosen to appear and
was consequently set ex-parte. Thereafter, a sale deed has been executed
in favour of the respondent/plaintiff on 13.02.2012. The respondent after
execution of the sale deed in his favour, had filed E.A.No.178 of 2014 for
delivery of the property. In the said application also the defendant had
taken over one year and a month, to file his counter and ultimately,
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C.R.P.(MD)No.569 of 2020
counter was filed on 09.10.2015 and thereafter, the Court had ordered
delivery on 08.06.2017. The petitioner had filed CRP.(MD)No.2029 of
2017 before this Court challenging the order of delivery in E.A.No.178 of
2014 and the same was dismissed on 14.11.2018. The delivery of the
property could not take place in view of the pendency of CRP.(MD)No.
2029 of 2017. He would further submit that even the present revision
has been filed with a delay of 13 days. All of this would clearly show the
true intent of the defendant in protracting the case and therefore, he
would submit that the Court should not come to rescue of such litigant.
5.Heard the learned counsel on either side and perused the
materials available on record.
6.It is no doubt that there is an inordinate delay on the side of the
petitioner and he is not interested in genuinely prosecuting the case.
However, a mere perusal of the judgment dated 02.07.2002, forces this
Court to allow this petition as the said judgment is absolutely non-
speaking and the learned Judge has not framed any issues and has not
considered whether the plaintiff has proved his readiness and willingness,
because it is a suit for specific performance.
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C.R.P.(MD)No.569 of 2020
7.For this reason alone, this Court is inclined to allow this revision
and set aside the order passed in I.A.No.476 of 2009 in O.S.No.225 of
1999. However, this Court cannot close its eyes to the conduct of the
petitioner and therefore, imposes cost on the petitioner. The learned
counsel for the petitioner fairly conceded and stated that earlier a cost of
Rs.1,00,000/- would be imposed and the petitioner had agreed to pay this
cost. Taking note of the hardship that has been caused to the respondent,
who has not only got decree executed by having sale deed in his name
and also got an order of delivery, this civil revision petition is allowed on
condition that the petitioner shall pay a sum of Rs.1,00,000/- to the
respondent herein on or before 16.02.2022. On such payment, the
revision shall stand allowed. A direction is issued to the learned Judge to
number and allow the petition for setting aside the ex-parte decree and
thereafter, proceed to dispose of the suit on or before 30.06.2022, since
the suit is of the year 1999. No costs. Consequently, connected
miscellaneous petition is closed.
12.01.2022
Index:Yes/No
Internet:Yes/No
gns
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C.R.P.(MD)No.569 of 2020
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 Sub Court, Palani.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.569 of 2020
P.T.ASHA,J.
gns
C.R.P.(MD)No.569 of 2020
12.01.2022
https://www.mhc.tn.gov.in/judis
