Madras High Court
Subbaiah vs Thangapandian on 2 August, 2023
C.R.P(NPD)(MD).No. 2242 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.08.2023
CORAM
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P(NPD)(MD).No. 2242 of 2018
1.Subbaiah
2.Gurusamy
3.Subburaj
... Petitioners
Vs
1.Thangapandian
2.Keppakkal
....Respondents
PRAYER: Civil Revision Petition filed under Section 115 of C.P.C to call
for the records relating to the Fair and Decreetal order passed by
Additional District Munsif Court, Aruppukottai in I.A. No. 123 of 2018, in
O.S. No. 296 of 2008, dated 23.07.2018 and set aside the same.
For Petitioners : Mr.G.Mariappan
For Respondents : Mr.S.Parthasarathy
1/6
https://www.mhc.tn.gov.in/judis
C.R.P(NPD)(MD).No. 2242 of 2018
ORDER
To set aside the fair and decreetal order, dated 23.07.2018
passed in I.A.No. 123 of 2018 in O.S. No. 296 of 2008 by the learned
Additional District Munsif, Aruppukottai, the revision petitioners have
filed this Civil Revision Petition before this Court.
2.The petitioners are the defendants before the trial Court.
The respondents are the plaintiffs. For the sake of convenience, the parties
are referred to as per the litigative status in the suit.
3.The brief facts which gives rise for filing the civil revision
petition are as follows:
(i)The plaintiffs have filed the suit for the relief of declaration
and permanent injunction. Wherein, though the defendants have filed the
written statement, it appears that, when the matter was posted for
examination of witnesses, they did not turn up to cross examine the
plaintiffs side witnesses. In view of the same, the learned Judge has passed
a Judgment and Decree on 20.06.20217;
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C.R.P(NPD)(MD).No. 2242 of 2018
(ii) After passing of decree, the petitioners herein, who are the
defendants before the trial Court, came up with the application to condone
the delay of 218 days in filing an application to set aside the exparte
decree. The reason assigned by the petitioners is that, since they were out
of station due to business reason, they were not in a position to instruct
their counsel. Hence, their Counsel was not able to cross examine the
witnesses. Therefore, they wanted to set aside the exparte decree, dated
23.07.2018.
4.The learned counsel for the respondents herein would
vehemently object the application and contend that the decree passed by
the Court below is not an exparte decree, however, it is a decree on merits.
5.However, this Court respectfully disagree with the
submissions made by the learned counsel for the respondents on the simple
reason that in the preamble of the Judgment, the learned Judge rightly
mentioned that the defendants have not participated in the trial and the said
factum was further fortified in the order, particularly in paragraph No.11,
wherein, it has been clearly observed that the Judgment and decree is
exparte one.
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C.R.P(NPD)(MD).No. 2242 of 2018
6.In such circumstances, this Court is of the considered view
that the application to set aside the exparte decree is maintainable.
However, the petitioners have filed an application with a delay of 218
days, for that, the reason assigned is that, they are not able to give suitable
instructions to their counsel. However, the Court below has disbelieved
the statement of the petitioners on the ground that they did not state the
details as to when they went outstation, and when returned to their native.
Though such finding appears to be correct, since because those details are
not given, it does not mean that the reason to be disbelieved. Though the
suit is for declaration, the petitioner and the respondent are relatives and
that both parties claim title over the suit property.
7.Hence, considering the nature of suit and considering the
fact that the petitioners were in outstation at that relevant point of time,
this Court is inclined to condone the delay. However, the hardship faced
by the respondents should be compensated. But the learned counsel for
the respondent would pray this Court to order for payment of costs to any
philanthropic activity.
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C.R.P(NPD)(MD).No. 2242 of 2018
8.In the result, this Civil Revision Petition is allowed on
payment of costs of Rs.1,000/- (Rupees One Thousand only) payable by
the petitioner to the credit of Current Account No.7567821433, (IFSC
IDIBI000H040), in Indian Bank High Court Branch, Madurai Bench of
Madras High Court, Madurai, towards Kalaignar Centenary Library,
within a period of four weeks from the date of receipt of a copy of this
order, failing which, this Civil Revision Petition stands dismissed
automatically. No costs.
02.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
PNM
To
1.The Additional District Munsif, Aruppukottai.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(NPD)(MD).No. 2242 of 2018
C.KUMARAPPAN, J.,
PNM
ORDER IN
C.R.P(NPD)(MD).No. 2242 of 2018
02.08.2023
https://www.mhc.tn.gov.in/judis
