Madras High Court
K.C.Sathish Kumar vs M.S.Raja on 11 January, 2023
CRP.No. 1570 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.01.2023
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
CRP.No. 1570 of 2020
and
CMP.No. 9443 of 2020
K.C.Sathish Kumar .. Petitioner
Versus
M.S.Raja .. Respondent
Civil Revision Petition is filed under Section 115 of the Code of Civil
Procedure, to set aside the fair and decreetal order dated 19.03.2020, in
I.A.No.1 of 2019 in O.S.No.142 of 2016 on the file of Sessions Court at
Namakkal [Fast Track Mahila Court],
For Petitioner : Mr.P. Valliappan
For Respondent : Mr.L. Muthusamy
----
ORDER
This Civil Revision Petition has been filed to set aside the fair and
decreetal order dated 19.03.2020, in I.A.No.1 of 2019 in O.S.No.142 of
2016 on the file of Sessions Court at Namakkal [Fast Track Mahila Court].
2. Heard both side and perused materials available on record.
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CRP.No. 1570 of 2020
3. On perusal of the records, it reveals that the respondent/plaintiff
filed the suit in O.S.No.142 of 2016 before the Sessions Court [Fast Track
Mahila], Namakkal, for a preliminary decree declaring that the amount of
Rs.42,32,000/- is payable by the defendant to the plaintiff and to direct the
defendant to pay the said amount together with subsequent interest from
the date of plaint till the date of realization. The petitioner/defendant has
contested the suit by filing written statement and denying all the averments
made in the plaint. After perusing the relevant records, the Court below
passed ex-parte judgment and decree on 21.01.2019. At that time, the
petitioner/defendant filed IA.No.1 of 2019 under Section 5 of the
Limitation Act, seeking to condone the delay of 234 days in filing the
petition under Order 9 Rule 13 of CPC., seeking to set aside the ex-parte
decree passed on 21.01.2019. After analyzing the records, the Court
below dismissed the said application by order dated 19.03.2020.
Aggrieved by the said order, the petitioner has filed this Civil Revision
Petition.
4. The contention of the revision petitioner/defendant is that the
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CRP.No. 1570 of 2020
petitioner/defendant contested the suit by filing written statement and
denying all the averments made in the plaint. After filing written
statement, the petitioner was affected by Jaundice and was taking country
medicine treatment. After recovery from illness, the petitioner came to
know that he was set ex-parte and ex-parte decree was passed on
21.01.2019 by the Court below. Due to his illness, he was not able to file
an application in respect of set aside the ex-parte decree in time. Hence,
there was a delay of 234 days in filing the set aside the ex-parte decree.
The aforesaid non-appearance of the petitioner was neither willful nor
wanton. Therefore, he prays to allow the above Revision.
5. Per contra, the contention of the respondent/plaintiff is that even
notice was served to the petitioner, he was not present before the Court
below, called absent and ex-parte decree was passed on 21.01.2019. The
reason was stated by the petitioner is that he was suffering from Jaundice
and was taking country medicine treatment and therefore, he could not
appear before the Court below. No documents have been produced by the
petitioner and hence, he prays the above Civil Revision Petition is liable to
be dismissed.
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CRP.No. 1570 of 2020
6. On a perusal of the impugned order, it reveals that the plaintiff
himself examined as PW1 and proof affidavit has also been filed. Ex.A1
and Ex.A2 were marked. Plaintiff's side evidence was closed. The Court
below dismissed the application on the ground that the petitioner has not
produced any documentary proof to show that the petitioner was suffering
from Jaundice and dismissed the application by order dated 19.03.2020.
7. On a thorough reading of the averments set out in the affidavit
filed in support of the petition, this Court finds that the petitioner was
suffering Jaundice for which, he has taken country medicine treatment.
There would not be any record for taking country medicine treatment. To
disprove the version of the petitioner, the respondent has not produced any
evidence.
8. Considering the facts and circumstances of the case, and also the
nature of treatment, the petitioner has taken, this Court is of the view that
the petitioner has shown sufficient cause for the delay in filing the
application to set aside the ex-parte decree. If the delay is condoned, no
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CRP.No. 1570 of 2020
prejudice would be caused to the respondent/plaintiff. On the other hand,
the delay is not condoned, the petitioner would be put to irreparable loss
and hardship, as the suit is of the year 2016, one for partition.
9. Accordingly, the Civil Revision Petition is allowed. The order of
the trial Court dated 19.03.2020 made in I.A.No.1 of 2019 in O.S.No.142
of 2016 is set aside. Further, the revision petitioner/defendant is directed
to pay costs of Rs.10,000/- (Rupees Ten Thousand Only) to the
respondent/plaintiff within a period of one week from the date of receipt of
a copy of this order. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
11.01.2023
Speaking order / Non speaking order
Neutral citation : Yes/No
msm
To
1. The Sessions Court, Namakkal, [Fast Track Mahila Court].
2. The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
CRP.No. 1570 of 2020
V.BHAVANI SUBBAROYAN, J.
msm
CRP.No. 1570 of 2020
and
CMP.No. 9443 of 2020
11.01.2023
https://www.mhc.tn.gov.in/judis
