Madras High Court
Eswaran vs Santhamani .. 1St on 8 August, 2023
CRP(MD).No.1655 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.08.2023
CORAM
THE HONOURABLE MRS JUSTICE K. GOVINDARAJAN THILAKAVADI
C.R.P(MD)No.1655 of 2023
1.Eswaran
2.Lakshmi Ammal : Revision Petitioners
Vs.
1.Santhamani .. 1st respondent / plaintiff
2.Ramaya Ammal
3.Gowthaman
4.Samiyathal
5.Baby
6.Vasanthi
7.Samiyappan
8.Subramani .. Respondents 2 to 8/
defendants 3 to 9
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order passed in I.A.No.
1 of 2022 in ASSR.No.1278 of 2022, dated 03.01.2023 on the file of the
Principal District Judge, Karur.
1/8
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
For Petitioners :Mr.K. Suresh
For Respondents :No appearance
ORDER
This Civil Revision Petition is preferred against the fair and
decreetal order, passed in I.A.No.1 of 2022 in ASSR.No.1278 of 2022,
dated 03.01.2023 on the file of the Principal District Judge, Karur.
2. The first respondent herein as plaintiff filed a suit in
O.S.No.483 of 2010 against the defendants for the relief of declaration to
declare the sale deed, dated 20.05.1993 as null and void and not binding on
the plaintiff's lawful share in the property and also for declaration
declaring the alleged sale deed, dated 07.05.2004 executed between the
defendants 1, 2 and the 9 as null and void and not binding on the plaintiff's
lawful share in the suit properties and for declaration declaring the alleged
settlement deed, dated 07.04.2010 executed between the defendants 1 and
2 regarding a portion of the suit properties as null and void and not binding
on the plaintiff and for partition of the suit properties into three equal
shares and one share to the plaintiff and for permanent injunction
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
restraining the defendants their men, agents, servants, subordinates or any
one on behalf of him from creating any kind of encumbrances over the suit
properties till the suit properties is amicably partitioned among the plaintiff
and the defendants 1 and 2.
3. The revision petitioners herein are the defendants 2 and 10
in the above said suit and they were set ex parte in the said suit. Since
they are absent, ex parte decree was passed against them. Thereafter, the
petitioners filed an application in I.A.No.01 of 2022 with a delay of 1297
days in filing an appeal and the said application was dismissed by the first
Appellate Court stating that no sufficient cause shown by the petitioners to
condone the delay. Against the said order, the present Civil Revision
Petition has been filed.
4. The learned counsel appearing for the revision petitioners
would submit that the revision petitioners' Counsel failed to inform about
the stage of the case and also stated that bundle was found missing when
the counsel shifted his office and only thereafter, revision petitioners came
to know that an ex parte decree was passed against them on 29.06.2018.
Hence, the revision petitioners filed an application in I.A.No.01 of 2022 in
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
A.S.SR.No.1278 of 2022, to condone the delay of 1297 days in filing an
appeal against ex parte decree passed in the above said suit. He would
further submit that petitioners herein suffered viral fever and consequently,
could affected by jaundice and was taking native treatment for a period of
two years and hence, the petitioners were not able file an appeal in time.
5. The further contention of the learned counsel for the
petitioners that after deducting the days covered under Covid 19, Period
there is only a delay of 564 days in preferring an appeal. However, the
trial Court erroneously dismissed the application filed by the revision
petitioners. He further contended that the Court below must take liberal
view in the condone delay application and the party must be allowed to
contest the case according to law. Further, the matter can be decided on
merits by providing due opportunity to the parties to prove their case. He
further contended that where the reasons assigned by the petitioners are
genuine the delay can be condoned.
6. In support of his contention the learned counsel appearing
for the petitioners relied upon the decision of the Hon'ble Supreme Court
reported in 2018 (15) SCC 127 in the case of (Ummer Vs. Pottengal
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
Subida and others) and the another Judgment of this Court reported in
2009(5) CTC 414 (Pavaymmal and another Vs. S.N. Chockalingam and
others). In spite of notice served to the respondents, they remained
absent.
7. The relevant portion of the Judgment reported in 2018 (15)
SCC 127 in the case of (Ummer Vs. Pottengal Subida and others) is
extracted hereunder:
“Where reasons assigned by applicant are genuine
delay can be condoned”
8. In the Judgment of this Court reported in 2009(5) CTC 414
(Pavaymmal and another Vs. S.N. Chockalingam and others) it has been
held as follows:
“7. The word “sufficient cause” under Section 5 of
the Limitation Act will have to be interpreted in the
purposeful and meaning way. As a matter of fact, the
Court of law is not supposed to adopt a pedantic approach
instead it has to take a liberal view while dealing with the
Application of condonation of delay. Ordinarily, a party
does not stand to gain by lodging in Appeal belatedly.
Refusing to condone a delay will result in meritorious
matter being thrown out at the nascent stage and thereby
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
the cause of justice being defeated. On the other hand, if
a party is allowed to enter into the scene of main
proceedings, then the matter can be decided on merits. Of
course a Court of law providing due opportunities to the
parties to prove their case. The judiciary is respected not
on account of tis power to legalise injustice on technical
grounds but it is capable of removing injustice and is
expected to do so. This Court is of the considered view
that substantial justice will have to be delivered to the
parties overriding technicalities.”
9. Heard the learned counsel appearing for the petitioners and
perused the materials available on record.
10. The Judgment relied on by the petitioners counsel is
squarely applicable to the facts of the present case. Upon perusing the
contention of the application and the affidavit filed by the revision
petitioners and with regard to the totality of the facts and circumstances of
the case and the cause shown by the revision petitioners, it is seen that
even though the revision petitioners have not strenuously explained with
regard to the delay of 564 days in preferring an appeal to the satisfaction of
this Court, by taking liberal view in order to give an opportunity to the
revision petitioners, this Court is inclined to allow this Civil Revision
Petition subject to the condition that the petitioners are directed to pay a
sum of Rs.5,000/- (Rupees Five Thousand only) to the first respondent /
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
plaintiff directly within a period of two weeks from the date of receipt of a
copy of this order, failing which, this Civil Revision Petition shall stand
dismissed automatically without any further reference to this Court. On
payment of cost, the first appellate Court is directed to number the appeal
within a week and thereafter, dispose the same within a period of three
months. In the event of the first respondent / plaintiff is refused to receive
the amount the same may be deposited to the credit of the appeal Suit.
11. In the result, this Civil Revision Petition is allowed. No
costs.
08.08.2023
Index : Yes / No
Internet : Yes/ No
trp
To
The Principal District Judge, Karur.
https://www.mhc.tn.gov.in/judis
CRP(MD).No.1655 of 2023
K. GOVINDARAJAN THILAKAVADI, J.,
trp
C.R.P(MD)No.1655 of 2023
08.08.2023
https://www.mhc.tn.gov.in/judis
