Madras High Court
Dr.M.Selvabala vs G.Kumarasamy on 20 January, 2022
C.R.P.(PD) (MD) No.916 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.916 of 2020
and
C.M.P.(MD) No.5996 of 2020
Dr.M.Selvabala .. Petitioner/Petitioner/
10th Defendant
-vs-
G.Kumarasamy .. Respondent/Respondent/
Plaintiff
Prayer :- Petition filed under Article 227 of the Constitution of India to
set aside the fair and decreetal order dated 13.02.2020 passed in I.A.No.1
of 2019 in O.S.No.41 of 2015 on the file of the Principal Subordinate
Judge, Tirunelveli.
For Petitioner : Mr.S.Mani
For Respondent : Mr.D.Srinivasaraghavan
for Mr.S.P.Maharajan
******
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C.R.P.(PD) (MD) No.916 of 2020
ORDER
This Revision is filed by the 10th defendant in the suit in O.S.No.41
of 2015 challenging the order, dated 13.02.2020 passed by the learned
Principal Subordinate Judge, Tirunelveli, in and by which the learned
Judge dismissed the application in I.A.No.1 of 2019 filed by the
petitioner/10th defendant to set aside the exparte order passed against her
on 11.12.2015.
2.The only short point, which arises for consideration in this
Revision is whether the dismissal of the petitioner's application filed
under Order IX Rule 7 of the Code of Civil Procedure by the learned
Principal Subordinate Judge, Tirunelveli, on the ground that the
application has not been filed within a period of three years from the date
of the exparte order as provided under Section 137 of the Limitation Act
is correct.
3.The suit in question is one for a declaration and a consequential
injunction. In the affidavit filed in support of the application to set aside
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C.R.P.(PD) (MD) No.916 of 2020
the exparte order, the petitioner had stated that the suit was posted on
11.12.2015 for filing of her written statement and since her husband, who
was a Doctor working at the General Hospital, Tenkasi had been affected
with a breathing problem for a very long time and since she had to take
care of her husband, she was unable to contact her counsel to give
instructions to prepare the written statement. The petitioner would
submit that she is also a Doctor by profession and the failure to file the
written statement was only on account of this reason and was neither
willful nor wanton.
4.The only defence raised by the respondent/plaintiff was that the
application filed after a period of four year was not acceptable, since as
per Section 137 of the Limitation Act, a petition to set aside the exparte
order should be filed within three years from the date of the order and
therefore, the petitioner/10th defendant ought to have filed the application
on 10.02.2018. However, the application has been filed only on
09.08.2019.
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C.R.P.(PD) (MD) No.916 of 2020
5.The learned Principal Subordinate Judge, Tirunelveli, accepted
this argument made by the plaintiff and therefore, dismissed the said
application. Aggrieved by the same, the revision petitioner is before this
Court.
6.Learned counsel for the petitioner would submit that the
provisions of Section 137 of the Limitation Act would not apply to an
application filed under Order IX Rule 7. In support of the said argument,
the learned counsel for the petitioner relied on the judgment in
Rajasekar vs. Govindammal and Ors. [2020 (4) LW 481] wherein, a
learned Judge of this Court, after adverting to the various judgments on
the subject and following the judgment of the Hon'ble Supreme Court in
Sangram Singh vs. Election Tribunal, Kotah and Others [AIR 1955 SC
425], observed that there is no limitation for filing an application under
Order IX Rule 7 of the Code of Civil Procedure. The learned Judge had
observed that the essence of an application under Order IX Rule 7 is not
one for setting side an act of the Court, but one seeking permission of the
Court to reopen the proceedings and enable the defendant, who was
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C.R.P.(PD) (MD) No.916 of 2020
absent to participate in the proceedings. I am also in agreement with this
view of the learned Judge. Consequently, this Civil Revision Petition is
allowed and the order, dated 13.02.2020 passed by the learned Principal
Subordinate Judge, Tirunelveli in I.A.No.1 of 2019 in O.S.No.41 of 2015
is set aside. No costs. Connected miscellaneous petition is closed.
20.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
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 Sub Judge, Tirunelveli.
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C.R.P.(PD) (MD) No.916 of 2020
P.T.ASHA, J.
abr
C.R.P.(PD) (MD) No.916 of 2020
Dated: 20.01.2022
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