Madras High Court
Sekar vs Hariprasad on 11 January, 2023
C.R.P.No.4020 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.No.4020 of 2017
Sekar .. Petitioner
Vs.
1. Hariprasad
2. Saritha
3. R.Palanisamy
4. Malligarjuna Chetty
5. Kumaran .. Respondents
Prayer:- Civil Revision Petition filed under Section 115 of CPC to allow the
above Civil Revision Petition against the Fair and Decreetal order of the
Learned Principal District and Sessions Judge, Tiruvannamalai dated
03.08.2017 made in I.A.No.41 of 2017 in A.S.No.12 of 2013.
For Petitioner : Mr.Adarsh Subramanian
For R1 and R2 : Mr.S.Kaithamalai Kumaran
For R3 : Not ready in notice
For R4 and R5 : Notice Served
No appearance
ORDER
This Civil Revision Petition has been filed as against the Fair and
Decreetal order dated 03.08.2017 made in I.A.No.41 of 2017 in A.S.No.12 of
2013 passed by the Learned Principal District and Sessions Judge,
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C.R.P.No.4020 of 2017
Tiruvannamalai, thereby dismissing the petition seeking to condone delay of 10
days in filing the petition to rehear the appeal.
2. The petitioner is the third defendant in the suit filed by the
respondents 1 and 2 herein for declaration and partition. The said suit was
contested by all the defendants and it was dismissed. Aggrieved by the same,
the respondents 1 and 2 filed an appeal suit in A.S.No.12 of 2013. In the
appeal, notices were duly served on all the respondents. Insofar as the petitioner
is concerned, he was served notice and engaged a counsel and filed vakalat on
26.07.2013. However, on that date, the Presiding Officer was on leave and he
resumed office only on 08.10.2013. On that date, the petitioner was absent and
as such he was set exparte in the appeal suit. Therefore, the appeal was allowed
by the Judgment and Decree dated 03.05.2017. Therefore, the petitioner filed a
petition under Order 41 Rule 21 to rehear the appeal with the delay of 10 days
in filing the petition to rehear the appeal. It was dismissed. Hence, this revision.
3. The learned counsel for the petitioner would submit that the petitioner
only duly contested the suit filed by the respondents 1 and 2 herein for
declaration and partition before the Trial Court and the suit was dismissed.
Unfortunately, in the appeal suit, though, he filed vakalat on 26.07.2013, before
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C.R.P.No.4020 of 2017
the Registry, it was not taken on file by the Appellate Court and he was set
exparte. Therefore, the petitioner may be given one more opportunity to defend
the appeal, since the suit was dismissed on merits.
4. The learned counsel for the respondents 1 and 2 would submit that
though the petitioner was set exparte on 08.10.2013, the appeal was allowed
only by the Judgment and Decree dated 03.05.2017. Even assuming that the
petitioner had filed vakalat as early as on 26.07.2013, he did not even take care
about the appeal suit and failed to verify the appeal through his counsel. The
appeal suit was pending for four years and only on 03.05.2017, it was allowed.
Therefore, though the petitioner filed a petition to rehear the appeal with a
delay of 10 days, he kept quiet for four years after setting him exparte in the
appeal suit. Therefore, the first appellate Court dismissed the petition and it
does not warrant any interference by this Court.
5. Heard the learned counsel for the petitioner and the learned counsel
for the respondents 1 and 2.
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C.R.P.No.4020 of 2017
6. The respondents 1 and 2 filed a suit for declaration and partition as
against four defendants in which, the petitioner is the third defendant. The said
suit was duly contested and the same was dismissed by the Judgment and
Decree dated 18.01.2013. Aggrieved by the same, the respondents 1 and 2
herein filed an appeal suit. In the appeal suit, all the respondents were duly
served with the notice and on receipt of the same, the petitioner herein engaged
a counsel and filed a vakalat before the Registry of the Appellate Court on
26.07.2013.
7. A perusal of records revealed that no such endorsement was made by
the Appellate Court as if the vakalat was filed by him on 26.07.2013.
Therefore, the first Appellate Court passed an exparte decree on 08.10.2013. It
is further revealed that the vakalat was filed before the Registry on 23.07.2013
as if the date of hearing was on 26.07.2013 and 13.09.2013. On such dates, no
appeal was posted for hearing. That apart, a perusal of Judgment and Decree in
A.S.No.12 of 2013, it is very clear that it was passed on merits and the
respondents 1 and 2 were allotted 1/3rd share in the suit schedule property.
Further, he was set exparte on 08.10.2013. However, the appeal suit was
allowed on 03.05.2017. The petitioner kept quiet nearly for four years, till the
date of Judgment and Decree i.e.,03.05.2017. It shows that the petitioner had
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C.R.P.No.4020 of 2017
knowledge about the appeal suit filed by the respondents 1 and 2 herein and he
wantonly failed to appear before the first Appellate Court.
8. Therefore, the Court below had rightly dismissed the petition and this
Court finds no infirmity or illegality in the order passed by the Court below and
this revision is liable to be dismissed.
9. Accordingly, this Civil Revision Petition is dismissed. No costs.
11.01.2023
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
mn
https://www.mhc.tn.gov.in/judis
C.R.P.No.4020 of 2017
G.K.ILANTHIRAIYAN,J.
mn
To
The Principal District and Sessions Judge, Tiruvannamalai.
C.R.P.No.4020 of 2017
11.01.2023
https://www.mhc.tn.gov.in/judis
