Madras High Court
Mr.M.Rajesh Khana vs Mr.M.Jaffir on 22 June, 2022
C.R.P(PD) No.1903 of 2022 and
C.M.P.No.9702 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
C.R.P(PD).No.1903 of 2022 and
C.M.P.No.9702 of 2022
Mr.M.Rajesh Khana ... Petitioner
Vs.
A.Gopal (deceased)
Mrs.M.Jayalakshmi (deceased)
1.Mr.M.Jaffir
2.Mr.M.Sithik
3.M.Banu
4.Mr.Gopalakrishnan
5.G.Parvathavarthini
6.G.Lakshmi
7.G.Sureshkumar
8.Mrs.Vijayakumar
... Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the order dated 10.12.2021, passed by the Hon'ble XVI
Assistant City Civil Court, Chennai in I.A.No.3211 of 2016 in O.S.No.4759 of
2008.
1/4
https://www.mhc.tn.gov.in/judis
C.R.P(PD) No.1903 of 2022 and
C.M.P.No.9702 of 2022
For Petitioner : Mr.P.V.Balasubramaniam
For Respondents : Mr.A.D.Janarthanan for R5 to R8
ORDER
This revision petition has been filed to set aside the order dated
10.12.2021, passed by the Hon'ble XVI Assistant City Civil Court, Chennai in
I.A.No.3211 of 2016 in O.S.No.4759 of 2008.
2. Heard the learned counsel for the petitioner and the learned
counsel for the respondents 5 to 8.
3. The revision petitioner is the second defendant in the suit. The
plaintiff has filed a suit for recovery of money against the second defendant
along with the other defendants, in which, the second defendant remained
exparte. However, the trial was conducted and thereafter, a decree was passed
on 04.02.2015. Subsequently, the petitioner / second defendant has filed a
petition to condone the delay of 347 days in filing the petition to set aside the
exparte decree and filed a petition to set aside the exparte decree as against him.
4. The learned counsel for the petitioner submitted that despite trial
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C.R.P(PD) No.1903 of 2022 and
C.M.P.No.9702 of 2022
was conducted and decree was passed, as against the second defendant the
decree is still an exparte decree and the petitioner should be given with an
opportunity to file a petition for setting aside the exparte decree.
5. The learned counsel for the respondents 5 to 8 submitted that the
decree has been passed against the other defendants who had actively
participated in the trial and hence, the decree cannot be called as an exparte
decree and it cannot be set aside against the single defendant alone.
6. On perusal of the records, it is seen that the learned Trial Judge has
passed a decree after examining the witnesses from both sides, even though the
second defendant remained exparte. In such a context, the second defendant
cannot seek to set aside the exparte decree as against him. The only remedy
open to him against a speaking judgment is to challenge by preferring an
appeal. However, it is upto him to prefer an appeal along with a petition to
condone the delay in filing the appeal. Further, the defence or grounds of the
revision petitioner cannot be made in a petition filed to condone the delay for
filing a petition to set aside the exparte decree. The learned Trial Judge has
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C.R.P(PD) No.1903 of 2022 and
C.M.P.No.9702 of 2022
rightly disallowed the petition. Therefore, I do not find any reasons for
interfering in the order passed by the learned Trial Judge.
7. Accordingly, this civil revision petition stands dismissed and the
order passed by the learned XVI Assistant Judge, City Civil Court, Chennai in
I.A.No.3211 of 2016 in O.S.No.4759 of 2008 dated 10.12.2021, is confirmed.
No costs. Consequently, connected miscellaneous petition is closed.
22.06.2022
Index : Yes/No
Speaking or Non-speaking order
gsk
To
The XVI Assistant City Civil Court,
Chennai.
C.R.P(PD) No.1903 of 2022 and
C.M.P.No.9702 of 2022
https://www.mhc.tn.gov.in/judis
