Madras High Court
P.Ramasamy (Died) vs P.Balasubramaniam on 1 August, 2023
C.R.P.(NPD)No.2982 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P(NPD)No.2982 of 2019
and
CMP.No.19227 of 2019
1.P.Ramasamy (Died)
2.Padmavathi
3.Selvaraj
4.Parvathi
5.Mahalakshmi
6.Saradhamani .. Petitioners
(Petitioners 2 to 6 are impleaded by order of this
Court dated 01.08.2023 in CMP.No.18660 of 2021
in CRP(NPD)No.2982 of 2019)
vs
P.Balasubramaniam .. Respondent
Petition filed under Article 227 of the Constitution of India to set
aside the Fair and Decreetal order dated 03.01.2019 passed in I.A.No.450
of 2018 in O.S.No.5 of 2013 by the learned District Munsif, Palladam.
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1/6
C.R.P.(NPD)No.2982 of 2019
For Petitioners : Mr.K.S.Karthik Raja
For Respondent : Mr.P.N.Duraisamy
ORDER
The suit was filed in O.S.No.148 of 2005 for partition and separate
possession. The said suit was subsequently transferred and re-numbered
as O.S.No.5 of 2013 on the file of the District Munsif Court, Palladam.
The petitioner before me is the first defendant and his son is the second
defendant.
2.The second defendant is a lorry driver, who by the nature of his
profession moves around the country. The first defendant fell sick with
Jaundice and was taking medical treatment. He recovered from his
treatment only to note that the partition suit had been decreed when he
was served with an application in I.A.No.381 of 2018 in the final decree
application.
3.To set aside the same, an application was filed to condone the
delay of 89 days in filing the petition to set aside the exparte decree. This
was stiffly opposed stating that each day's delay has not been explained
and also that though preliminary decree was passed on 27.02.2018, it was
only to drag on the proceeding that the said application to condone the
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C.R.P.(NPD)No.2982 of 2019
delay had been taken out. The objection found acceptance at the hand of
the learned District Munsif. Against which, the present revision has been
filed.
4.The suit is for partition between one Balasubramaniam, who is
the respondent before me and P.Ramasamy and P.Selvaraj. The first
defendant even at the time of presentation of plaint was a senior citizen
and the second defendant is admittedly a lorry driver. Therefore, it fell to
the lot of the first defendant to contest the suit. Unfortunately, the first
defendant fell sick with Jaundice and was taking native treatment. The
fact that he was taking native treatment shows that he would not be in a
position to produce a medical certificate. The delay is also not lengthy
and is merely 89 days.
5.The learned Judge has been swayed by the fact that this is the
second application to set aside the exparte order and she has come to the
conclusion that since it is the second application, the petition cannot be
allowed. A party must explain sufficient cause for not having approached
the Court within the prescribed time from the date on which he was set
exparte. The fact that there was already an exparte order, matters not in
such kinds of cases.
6.It is no doubt true, the suit has been filed in the year 2005. It was
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C.R.P.(NPD)No.2982 of 2019
due to the bifurcation of jurisdiction, it was transferred to the Court in
Palladam and re-numbered.
7.The pleadings are complete and the matter is posted for cross
examination of PW1. Therefore, I am inclined to condone the delay and
grant one opportunity to the petitioner to cross examine PW1 and so as to
enable them to enter the judgment on merits of the case. However, in
order to balance the interest of the respondent, who has stiffly opposed
the revision, I intend to impose costs.
8.In light of the above discussion, I am satisfied that sufficient
cause has been made out to condone the delay of 89 days in filing the
application under Section 5 of the Limitation Act to set aside the exparte
decree under Order 9 Rule 13 of the CPC.
9.The delay is condoned on payment of Rs.5000/- by the petitioner
to the respondent within a period of four (4) weeks from today. On such
payment, the learned District Munsif, Palladam is requested to take up
the application filed under Order 9 Rule 13 of CPC, and number the same
and allow the application. The Court shall fix a date for cross
examination of PW1 and ensure that the matter is not adjourned
unnecessarily.
10.The suit being of the year 2005, the learned District Munsif is
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C.R.P.(NPD)No.2982 of 2019
requested to dispose it of within a period of nine (9) months from the
date of receipt of a copy of this order.
11.With the above observations, this civil revision petition is
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
01.08.2023
Index:Yes/No (2/2)
Speaking order/Non-speaking order
Neutral Citation:Yes/No
vs
To
The District Munsif,
Palladam.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2982 of 2019
V. LAKSHMINARAYANAN,J.
vs
C.R.P(NPD)No.2982 of 2019
and CMP.No.19227 of 2019
01.08.2023
(2/2)
https://www.mhc.tn.gov.in/judis
