Madras High Court

Chinnapappa vs Ellammal Alias Panjali on 16 September, 2022

                                                          C.R.P.No.1645 of 2020 & C.M.P. No.10135 of 2020



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 16.09.2022

                                                      CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                             C.R.P.No.1645 of 2020
                                                       &
                                             CMP No.10135 of 2020

                     1. Chinnapappa
                     2. Palani
                     3. Palaniammal
                     4. Chinnaraj
                     5. Rani
                     6. Tamilzharasi
                     7. Vediyappan
                     8. Muthuvedi
                     9. Anbu
                     10. Easwaran
                     11. Lakshmi                                            ...Petitioners
                                                         Vs.

                     1. Ellammal alias Panjali
                     2. Karthika                                         ... Respondents

                     Prayer : Civil Revision Petition filed under Article 227 of Constitution of
                     India praying to set aside the fair and decretal order in I.A. No.571 of


                     Page 1 of 10

https://www.mhc.tn.gov.in/judis
                                                              C.R.P.No.1645 of 2020 & C.M.P. No.10135 of 2020



                     2019 in O.S. No.64 of 2016 dated 03.07.2020 passed by the learned
                     District Munsif, Palacode.


                                  For Petitioners         :     Mr. B. Gopalakrishnan


                                                       ORDER

The present civil revision petition is filed against the order

dated 03.07.2020 in I.A. No.571 of 2019 in O.S. No. 64/2016 on the file

of the District Munsif, Palacode.

2. The revision petitioners are the defendants 1 to 11 in

O.S.No.64/2016 on the file of the District Munsif, Palacode. The

respondents 1 & 2 / plaintiffs filed the suit for partition of the suit

properties into 49 equal shares and to allot 8 such shares to the plaintiffs

and also for setting aside the settlement deeds executed by the

defendants. The defendants were served with the summons in the main

suit in O.S.No.64/2016 and they entered appearance through a counsel.

However, they did not file their written statements and therefore were set

ex parte and an ex parte decree was passed on 21.08.2017. Thereafter,

https://www.mhc.tn.gov.in/judis C.R.P.No.1645 of 2020 & C.M.P. No.10135 of 2020

the respondents/plaintiffs filed a petition in I.A. No.1091/2017 for

passing of final decree and in the said petition, the revision

petitioners/defendants appeared through a counsel and also filed their

counters. Subsequently they filed an application under Order IX Rule 13

CPC to set aside the ex parte decree passed in O.S. No.64/2016 dated

21.08.2017 along with a petition in I.A. No571/2019 under Section 5 of

the Limitation Act to condone the delay of 560 days in filing the

application to set aside the ex parte decree. The respondents/plaintiffs

filed their counter and the learned District Munsif, after hearing both

sides, dismissed the application on the ground that the revision petitioners

had not shown sufficient cause for condoning the delay of 560 days, vide

his orders dated 03.07.2020. Aggrieved over the same, the present

revision petition is filed.

3. Mr. B. Gopalakrishnan, learned counsel appearing for the

revision petitioners contended that the letters sent by their counsel to

contact him for filing the written statement did not reach the revision

petitioners on time and therefore, they were set ex parte on 21.08.2017.

Only at the time of receiving notice in I.A. No.1091/2017, they came to

https://www.mhc.tn.gov.in/judis C.R.P.No.1645 of 2020 & C.M.P. No.10135 of 2020

know about the ex parte decree passed by the Court. Therefore, the

counsel for the revision petitioners prayed for condoning the delay of 560

days in filing the application to set aside the ex parte decree passed

against them.

4. It is seen from the records that the defendants were set ex

parte on 13.04.2017 for not filing the written statement and thereafter an

ex parte decree was passed on 21.08.2017. In the final decree

proceedings in I.A. No.1091/2017, the revision petitioners entered

appearance on 02.02.2018 and after a lapse of 14 months, they filed the

petition to set aside the ex parte decree passed in O.S. No.64/2016,

under Order IX Rule 13 CPC. Along with the said petition, a petition in

I.A. No.571/2019 under Section 5 of the Limitation Act to condone the

delay of 560 days was filed. The reasons mentioned in the affidavit filed

in support of the said petition is that the communication of the revision

petitioners' counsel did not reach them on time. However, it is seen from

the records that they were served with the notice in the final decree

proceedings and entered appearance before the trial Court on 02.02.2018.

They filed the application to set aside the ex parte decree passed in O.S.

https://www.mhc.tn.gov.in/judis C.R.P.No.1645 of 2020 & C.M.P. No.10135 of 2020

No.64/2016 only on 01.04.2019 after a lapse of 14 months. The

petitioners also entered appearance in the original suit and several

adjournments were granted in their favour for filing written statement and

in fact, a perusal of the records shows that after passing the ex parte

order on 13.04.2017, only on 21.08.2017, the exparte decree was

passed.

5. 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 when the averments in the affidavit are

untrue, lack bona fides, then the case falls within the exception to the

Rule of Liberal approach and it does not deserve the liberal approach

formula in matters relating to condonation of delay. In this case, the

Division Bench of this Court followed the decision of the Honourable

Supreme Court reported in M.K.Prasaf vs. P. Arumugam (2001) 6

Supreme Court Cases 176. In Para Nos. 14-A and 15, the Division

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Bench of this Court held thus:-

"14. .....If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay, with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account, while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.

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17. .....Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. WE are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent.

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.1645 of 2020 & C.M.P. No.10135 of 2020

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."

6. The observations of the trial court that the revision

petitioners did not show sufficient cause for condoning the delay of 560

days is perfectly in order. Moreover, the 1st respondent/plaintiff is the

daughter in law of the first revision petitioner Chinapappa while the

revision petitioners 2 to 6 are the sons and daughters of the first revision

petitioner. Admittedly the respondents/plaintiffs are entitled to a share in

the family properties and in the circumstances, I do not see any reason to

https://www.mhc.tn.gov.in/judis C.R.P.No.1645 of 2020 & C.M.P. No.10135 of 2020

condone the delay of 560 days in filing the application to set aside the ex

parte decree passed in O.S. No.64/2016. Accordingly, the civil revision

petition is liable to be dismissed.

7. In the result,