G.Senjilakshmi vs S.Mohanasundaran
2023 Latest Caselaw 1697 Mad

Citation : 2023 Latest Caselaw 1697 Mad
Judgement Date : 2 March, 2023

Madras High Court

G.Senjilakshmi vs S.Mohanasundaran on 2 March, 2023

                                                                               C.R.P.No.1427 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 02.03.2023

                                                            CORAM

                           THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                   C.R.P.No.1427 of 2021
                                                            and
                                                  C.M.P.No.11126 of 2021

                     G.Senjilakshmi                                            ... Petitioner

                                                             Vs.

                     1. S.Mohanasundaran
                     2. S.Neelamanikandan
                     3. S.Kripanidhi
                     4. S.Maharajothi
                     5. M.Sukkuru                                              ... Respondents

                                  Civil Revision Petition is filed under Article 227 of the

                     Constitution of India, to set aside the fair and decreetal order in

                     I.A.No.1105 of 2016 in O.S.No.132 of 2013 dated 22.02.2021 on the file

                     of District Munsif Court, Panruti.




                                           For Petitioner    : Mr.J.Rajmohan
                                                               For Mr.I.Periaswamy

                                          For Respondents : Mr.K.Sendoorpandi


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                                                                                  C.R.P.No.1427 of 2021


                                                           ORDER

This Civil Revision Petition has been filed against the fair and

decreetal order dated 22.02.2021 passed by the Learned District Munsif

at Panruti in I.A.No.1105 of 2016 in O.S.No.132 of 2013.

2. The case of the petitioner is that the petitioner herein is the

plaintiff in O.S.No.132 of 2013. The suit was filed for declaration of title

and consequential relief of permanent injunction. The suit was decreed

exparte on 20.08.2014 for non-appearance of the respondents.

Subsequently, the respondents filed I.A.No.1105 of 2016 under Section 5

of the Limitation Act, to condone the delay of 584 days in filing the

petition to set aside the exparte decree. It was stated in the application

that the 5th defendant in the suit namely Kaliaperumal had died on

09.05.2015. The suit was posted for filing of written statement on

22.07.2014. Since the defendants were suffering from severe virus fever

from 1st week of July 2014 to 2nd week of April 2016, they could not

contact their counsel and file written statement in the suit. The above said

delay in filing the application for setting aside the exparte decree was

neither wilful nor wanton and hence, the exparte decree may be set aside.

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C.R.P.No.1427 of 2021

3. The petitioner / plaintiff resisted the application by stating that,

as per Section 5 of the Limitation Act, each and every delay should be

explained, but there was no believable explanation for the delay of 584

days in the affidavit of the respondents. Further, it was stated that, the

respondents' counsel Mr.V.Thanigaiselvam filed vakalat for the

respondents on 26.06.2013 and obtained time to file the written statement

for more than one year and left the suit exparte on 22.07.2014. The Court

posted the suit for exparte evidence on 20.08.2014. On 20.08.2014, the

petitioner was examined and the suit was decreed. The Section 5 petition

was filed only on 25.04.2016 with false affidavit. The respondents have

wantonly left the suit exparte and hence the delay of 584 days were

wilful and wanton.

4. The Trial Court, upon considering the facts and hearing the

arguments on both sides, allowed the application by imposing cost of

3,500/- on the respondents. Aggrieved by the same, the present CRP has

been filed by the petitioners.

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C.R.P.No.1427 of 2021

5. On perusal of the records, it is seen that the respondents have

not shown sufficient cause for the delay in filing the application to set

aside the exparte decree. However, the application filed by the

respondents was allowed only upon citing the judgment of this Court

reported in Velayutha Gounder (Died) and his legal heirs Vs.

Govindasamy (2020(1) MWN (Civil) 88), wherein, this Court has held as

follows :

“Two issues have to be taken into account for considering the same. One is liberal approach is necessary and other one is other circumstances have also to be taken into account. Our Hon'ble Apex Court ruled very specific that the litigation should not be terminated only by default.

Therefore even though the reasons stated to condone the delay is not sufficient, since the suit is filed for declaration and other reliefs particularly for finding out the fact that who vested with the title, it is necessary to try the suit.”

6. Section 5 of the Limitation Act, 1963, enables the Court to

condone the delay in filing an appeal or application, if the appellant or

applicant satisfies the Court that he had a sufficient cause for not

preferring the appeal or application within the specified time. Whether

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C.R.P.No.1427 of 2021

the reason furnished for delay constitute a 'sufficient cause or not' would

depend on facts and circumstances of the case. There is no straight jacket

formula for accepting or rejecting an explanation furnished to condone

the delay.

7. In the present case, though the reasons stated by the respondents

are not sufficient to condone the delay of 584 days in filing the