Madras High Court

Lakshmanan vs Mathalai Muthu on 28 November, 2022

                                                                                   C.R.P.No.303 of 2021
                                                                              and C.M.P.No.2666 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 28.11.2022

                                                            CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                     C.R.P.No.303 of 2021
                                                              and
                                                 C.M.P.No.2666 of 2021


                     1.Lakshmanan
                     2.Perumal                                                 ... Petitioners


                                                              Vs.

                     1.Mathalai Muthu
                     2.Theresa Mary                                            ... Respondents

                     Prayer : Civil Revision Petition filed under Section 115 of CPC to set
                     aside the fair and decreetal orders dated 10.03.2020 passed in I.A.No.826
                     of 2018 in O.S. No.129 of 2017 on the file of the District Munsif,
                     Palakkodu.


                                   For Petitioners      : Mr.M.Muruganantham
                                   For Respondents      :   Mr.R.Selvakumar




                     Page 1 of 8

https://www.mhc.tn.gov.in/judis
                                                                                   C.R.P.No.303 of 2021
                                                                              and C.M.P.No.2666 of 2021




                                                         ORDER

The present petition is filed challenging the fair and decreetal

orders dated 10.03.2020 passed in I.A.No.826 of 2018 in O.S. No.129 of

2017 on the file of the District Munsif, Palakkodu.

2.The revision petitioners are the defendants 2 & 3 in O.S.

No.129 of 2017 on the file of the District Munsif, Palakkodu. The

respondents/plaintiffs filed the suit for a declaration that the sale deed

dated 29.09.1998 executed by the first defendant in favour of the second

defendant is null and void and also for a permanent injunction restraining

the defendants 2 & 3 from interfering with their peaceful possession and

enjoyment of the suit property and for costs.

3.In the suit, the defendants were served with summons and

they entered appearance through a counsel. The first defendant is the

father of the plaintiffs and he filed the written statement. However, the

defendants 2 & 3 did not file their written statement and they were set ex

https://www.mhc.tn.gov.in/judis C.R.P.No.303 of 2021 and C.M.P.No.2666 of 2021

parte on 05.03.2018. Since the first defendant sailed with the plaintiffs

the suit was decreed in favour of the plaintiffs. Thereafter, the revision

petitioners filed an application in I.A.No.826 of 2018 under Order IX

Rule 13 CPC along with a petition under Section 5 of the Limitation Act

praying to condone the delay of 150 days in filing the petition.

4.The respondents/plaintiffs filed their counter and after full

contest, the learned District Munsif, Palakkodu, dismissed the said

application vide his orders dated 10.03.2020 on the following grounds :

1. The contention of the revision petitioners that their counsel did not

inform them the hearing dates cannot be accepted.

2. In fact on 24.10.2017 the counsel for the defendants 2 & 3

appeared before the trial Court and the Advocate Commissioner

appointed by the Court filed his report and plan on 10.03.2018

which fact was known to the revision petitioners and their counsel.

Aggrieved over the orders passed by the trial Court, the present Civil

Revision Petition is filed by the defendants 2 & 3.

https://www.mhc.tn.gov.in/judis C.R.P.No.303 of 2021 and C.M.P.No.2666 of 2021

5.Heard Mr.M.Muruganantham, learned counsel for the

revision petitioners and Mr.R.Selvakumar, learned counsel for the

respondents.

6.At the outset it may be observed that the suit is filed by the

plaintiffs for a declaration that the sale deed dated 29.09.1998 executed

by the first defendant in favour of the second defendant is null and void.

Admittedly, the first defendant is the father of the plaintiffs. The suit was

filed by the plaintiffs on the ground that the suit properties are ancestral

properties and that the first defendant, their father, cannot execute the

sale deed in favour of the second defendant and the same would not bind

them. The first defendant in his written statement had contended that the

second defendant by playing fraud upon him had obtained the sale deed

dated 29.09.1998 in his favour. He had also contended that the said sale

deed is null and void.

7.A perusal of the records shows that the defendants 2 & 3 did

not file their written statement within the time prescribed by law and

https://www.mhc.tn.gov.in/judis C.R.P.No.303 of 2021 and C.M.P.No.2666 of 2021

therefore, they were set ex parte. Since the first defendant had sailed with

the plaintiffs the suit was decreed in favour of the plaintiffs. In the

petition filed under Section 5 of the Limitation Act the revision

petitioners / defendants 2 & 3 had contended that their counsel did not

inform the hearing dates to them and that they were asked to wait till the

filing of the report by the Advocate Commissioner. According to them,

they came to know about the ex parte decree only on 25.09.2018.

8. In Sundar Gnanaolivu rep. by his power of attorney agent

Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney

agent Veina Gnanavalivu) reported in 2003 1 LW 585, the Division

Bench of this Court held that

"15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for

https://www.mhc.tn.gov.in/judis C.R.P.No.303 of 2021 and C.M.P.No.2666 of 2021

condonation of delay, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered."

9.When the revision petitioners / defendants 2 & 3 had

contended that they were not informed about the ex parte decree passed

against them by their erstwhile counsel and that they came to know about

the ex parte only on 25.09.2018. They had filed an affidavit in this

regard. The suit is filed for a declaration that the sale deed executed by

the first defendant in favour of the second defendant is null and void. The

https://www.mhc.tn.gov.in/judis C.R.P.No.303 of 2021 and C.M.P.No.2666 of 2021

first defendant in fact in his written statement had admitted the execution

of the sale deed by him in favour of the second defendant. However, his

contention is that it was obtained by playing fraud upon him. By

dismissing the petition the trial Court had shut the doors of justice. It did

not take into account the nature of suit filed by the plaintiffs. In the facts