Madras High Court
Saravanan vs Jayalakshmi on 31 October, 2022
CRP.No.3341 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.3341 of 2022
and
CMP.No.17722 of 2022
Saravanan ... Petitioner
Vs.
1.Jayalakshmi
2.Sundari
3.Selvakumar
4.Neelavathi
5.Kalyanasundaram
6.Sakthivel
7.S.Rajendran ... Respondents
Prayer: Civil Revision Petition is filed under Section 115 of CPC, to
set aside the fair and decreetal order passed in I.A.No.362 of 2019 in
O.S.No.118 of 2016 dated 24.06.2022 on the file of the Court of District
Munsif, Tiruvallur and allow the said IA by allowing this CRP.
1/10
https://www.mhc.tn.gov.in/judis
CRP.No.3341 of 2022
For Petitioner : Mr.A.Muthukumar
For Respondents : Mr.B.Ramamoorthy
ORDER
This Civil Revision Petition is filed by the second defendant
in the suit challenging the order dismissing the petition to condone the
delay of 424 days in seeking to set aside the exparte decree passed
against him.
2. The respondents 1 to 5 herein filed a suit for declaration
of title and for recovery of possession against the petitioner and other
respondents. They have also prayed for a declaration that the sale deed
dated 29.06.2015 executed by the sixth respondent herein in favour of
the revision petitioner is illegal and invalid.
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CRP.No.3341 of 2022
3. According to the revision petitioner, after receipt of
summons in the suit, he engaged an Advocate and had been conducting
the case. Owing to his failure to file written statement, he was set
exparte on 13.03.2017 and subsequently, an exparte decree was passed
against him on 06.06.2018. It was his case that he was affected by
jaundice during March 2017 and hence, could not contact his counsel
and file his written statement. It was further stated that after recovery,
he met the counsel on 15.08.2019 and then only he came to know that
he was set exparte as early as on 06.06.2018. Thereafter, the petition to
set aside the exparte decree was filed on 04.09.2019 with the delay of
424 days.
4. The contesting respondents 1 to 5 filed their counter and
resisted the petition for condonation of delay. They averred in the
counter that the revision petitioner entered appearance before the Lower
Court on 14.11.2016 and took time till 13.03.2017 for filing written
statement. Since he failed to file written statement, he was set exparte
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CRP.No.3341 of 2022
on 13.03.2017.
5. It was further stated in the counter that the seventh
respondent herein filed a written statement and therefore, the suit was
taken up for trial from 02.04.2018 onwards and finally judgment and
decree was passed on merits on 06.06.2018. Therefore, the judgment
and decree passed by the Court below cannot be termed as an exparte
decree as it was passed after hearing the plaintiff and contesting
defendants, who filed written statement. The respondents 1 to 5 in their
counter also denied the averments found in the petitioner's affidavit that
he was suffering from jaundice at the relevant point of time.
6. The petitioner was examined as PW1 and an independent
witness was examined as PW2. The judgment and decree passed in the
suit was marked as Ex.P1 and Ex.P2. After considering the rival
contentions, the Court below refused to condone the delay and
dismissed the petition. Aggrieved by the same, the revision petitioner is
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CRP.No.3341 of 2022
before this Court.
7. The learned counsel for the petitioner assailed the order
passed by this Court mainly on the ground that the impugned order was
passed by the Court below without properly considering the evidence of
the petitioner as PW1 and the evidence of the independent witness
examined on behalf of the petitioner to prove his illness as PW2. It was
vehemently contended by the revision petitioner that when the
petitioner entered box and deposed that he was suffering from jaundice,
the Court below ought to have condoned the delay by holding that the
petitioner had proved sufficient cause for his non appearance.
8. The learned counsel for the petitioner further submitted
that the reason given by the Court below for dismissing the petition as if
the decree dated 06.06.2018 is the one passed on merits and hence
petition to set aside the exparte decree is not maintainable is an
erroneous one. Hence, the impugned order is liable to be set aside.
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CRP.No.3341 of 2022
9. I have given my consideration to the submission made by
the learned counsel for the petitioner and that of the learned counsel for
the respondent/caveator. Perused the typed set of papers.
10. Admittedly in this case, the revision petitioner entered
appearance on 14.11.2016 by engaging an Advocate. When the
suit was posted for filing written statement on 13.03.2017, owing to
failure of the petitioner to file written statement, he was set exparte.
Subsequently, the exparte decree was passed on 06.06.2018. The
exparte decree was passed only after 15 months from the date on which
the petitioner was set exparte.
11. In the affidavit filed in support of this petition to
condone the delay, the petitioner averred that from March 2017
onwards, he had been suffering from jaundice and after his recovery he
met his counsel on 15.08.2019 and acquired the knowledge about the
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CRP.No.3341 of 2022
exparte decree. The reasoning given by the petitioner that he had been
suffering from jaundice from March 2017 to August 2019 for nearly 29
months cannot be accepted without any materials to substantiate the
same.
12. In order to support his averments regarding the illness
the petitioner examined one independent witness as PW2. The close
scrutiny of evidence of PW2 would suggest that he did not have
knowledge about the illness of the petitioner.
13. PW2 in his cross examination clearly admitted that he
did not know anything about the timing of illness pleaded by the
revision petitioner. He also deposed about his ignorance regarding the
material particulars averred by him in his proof affidavit regarding the
manner in which the petitioner had taken a treatment. Therefore, if the
evidence of PW2 is taken as a whole it is not useful to support the case
of petitioner. Moreover, the petitioner herein, who was examined as
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CRP.No.3341 of 2022
PW1 in his cross examination as PW1, clearly admitted that he had
been in touch with the respondents 6 & 7 regarding the status of the
case.
14. The fatal admission made by PW1 that he had been in
touch with the other defendants namely respondents 6 & 7 would lead
to an inference that he is a fence sitter, watching the proceedings of the
Court from out side. The said admission clearly proves that there is no
bonafide in the claim made by the petitioner.
15. In the light of the discussions made above, I have no
hesitation in coming to the definite conclusion that the petitioner failed
to explain the delay by establishing sufficient cause within the meaning
of Section 5 of the Limitation Act. Therefore, I do not find any illegality
or irregularity in the order passed by the Court below warranting
interference by this Court.
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CRP.No.3341 of 2022
16. Accordingly, this Civil Revision Petition is dismissed.
No costs. Consequently, connected Civil Miscellaneous Petition is
closed.
31.10.2022
Index : Yes / No
Internet : Yes / No
dna
To
The District Munsif, Tiruvallur.
https://www.mhc.tn.gov.in/judis
CRP.No.3341 of 2022
S.SOUNTHAR , J.
dna
CRP.No.3341 of 2022
and
CMP.No.17722 of 2022
31.10.2022
https://www.mhc.tn.gov.in/judis
