Madras High Court
Subramani vs Rajendiran on 1 June, 2023
C.R.P(MD)No.1197 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.06.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.1197 of 2023
and
C.M.P(MD)No.5776 of 2023
1.Subramani
2.Murugan
3.Parvathiyammal ...Petitioners/Petitioners/
Defendants
Vs.
Rajendiran ...Respondent/Respondent/
Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to call for the records relating to the exparte decree
and judgment passed by the learned Subordinate Court, Uthamapalayam
in I.A.No.1 of 2022 in O.S.No.105 of 2013 dated 04.11.2022 and set
aside the same.
For Petitioners : Mr.P.Muthuvijayapandian
https://www.mhc.tn.gov.in/judis
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C.R.P(MD)No.1197 of 2023
ORDER
The present Civil Revision petition has been filed against the
exparte decree and judgment in I.A.No.1 of 2022 in O.S.No.105 of 2013
dated 04.11.2022 passed by the Subordinate Court, Uthamapalayam.
2. The petitioners are the defendants in O.S.No.105 of 2013. The
said suit was filed by the respondent herein to partition the suit schedule
property. After the suit summon was served, the petitioners herein failed
to appear and therefore, they were set ex parte on 07.04.2014. Under
these circumstances, the petitioners have filed I.A.No.1 of 2022 to
condone the delay of 2704 days in filing the application to set aside the
ex parte decree passed on 07.04.2014. The Subordinate Court,
Uthamapalayam has dismissed the application with the following
observations:
(ii) This petition is filed under Sec.5 of the Limitation Act
to condone the delay of 2704 days in filing a petition to set
aside the exparte decree passed on 07.04.2014. This court sees
that the main suit was filed by the Respondent as Plaintiff
seeking the relief of partition. A Preliminary decree was passed
on 07.04.2014 and the share of the Plaintiff was allotted in the
suit properties. The Plaintiff filed IA No.212/2021 seeking the
relief of passing final decree and it is pending for disposal.
Now the Defendants as Petitioners herein had filed this petition
to condone the delay of 2704 days. The reason stated by the
Petitioners is that they were engaged in amicable settlement
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C.R.P(MD)No.1197 of 2023
before the elders and as such no petition was filed to set aside
the exparte Preliminary decree
(ii) The Petitioners had also stated that when the final
decree petition was filed by the Respondent, the 1st Petitioner
and his mother suffered illness and his brother went to Kerala.
The Petitioners could not able to contact their advocate and as
such there was delay of 2704 days. This court sees that the
Petitioners had given no valid reasons to condone such
enormous delay. They have plainly and casually stated that
peaceful talks were going on which could not be accepted as
genuine reason. The Petitioners failed to mention about the
nature illness suffered by the 1st Petitioner and his mother and
also the period undergone for the treatment. Even otherwise
the illness pointed out by the Petitioners is only after filing the
final decree petition during the year 2021 which is no way
connected to the filing of petition to set aside the exparte
decree.
(iv) The Petitioners failed to explain each and every day
delay properly. The main suit was filed for the relief of
partition only and the Respondent/Plaintiff being their brother,
the Petitioners who had knowledge about the Preliminary
decree ought to have taken immediate steps to set aside the
exparte decree. No leniency can be given to the Petitioners for
their lackadaisical attitude. This court find it fit to dismiss this
petition as devoid of merits.
(v) In the result, this petition is dismissed. No costs.
3. A perusal of the affidavit filed by the petitioners for condoning
the delay makes it clear that the delay has not been properly explained by
the petitioners to condone the enormous delay of 2704 days in filing the
application under Section 5 of the Limitation Act.
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C.R.P(MD)No.1197 of 2023
4. In my view, no prejudice will be caused to the petitioners as
ultimately each of the petitioners are entitled to a share in the property in
respect of which the respondent has filed the above suit for partition.
5. The present Civil Revision Petition stands dismissed with the
above observations. No costs. Consequently, connected miscellaneous
petition is closed.
01.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The Subordinate Court,
Uthamapalayam.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1197 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)No.1197 of 2023
01.06.2023
https://www.mhc.tn.gov.in/judis
