Madras High Court
Mohamed Sithik vs John Mohammed on 19 September, 2023
CRP No.3887 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2023
CORAM:
THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.3887 of 2019
and CMP No.25644 of 2019
Mohamed Sithik .... Petitioner
Vs
John Mohammed ... Respondent
PRAYER: Civil Revision Petition filed under Article 227of Constitution of
India against the fair and final order of Principal District Munsif Court,
Mayiladuthurai dated 13.08.2019 made in I.A.No.239 of 2018 in O.S.No.237 of
2014.
For Petitioner : Mr.Jawahar
For Respondent : Served-No appearance
ORDER
The Civil Revision Petition arises against an order condoning the delay
of 1030 days in filing the application to set aside the exparte decree. The
petitioner and the respondent are brothers. The suit has been presented for
permanent injunction by one brother against the other restraining from
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CRP No.3887 of 2019
interfering with his possession of pathway. In this suit, though summons were
served, the defendant did not enter appearance. Therefore, it ended an ex-parte
decree on 07.07.2015. To set aside the same, an application was taken out in
I.A.No.239 of 2018. The reason that was given by the respondent was that he
was suffering from jaundice and he was taking native treatment. This was
countered by the respondent stating that an execution petition was filed in
E.P.No.116 of 2018 and was only thereafter the said application came to be
filed. Taking into consideration both the aspects, the learned trial Judge
condoned the delay on payment of cost of Rs.3,000/- on 13.08.2019. Aggrieved
by the same, the present revision has been filed.
2. Heard Mr.Jawahar, learned counsel for the petitioner and the
respondent, though served, has not entered appearance.
3. While I have to agree with the learned counsel for the petitioner that
no tangible reason has been given for the purpose of condoning the delay, I am
able to see from the order that the learned Judge felt that since the respondent
was sick and was suffering from liver problem, he must be given an
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CRP No.3887 of 2019
opportunity to contest the suit on merits. The parties to the dispute being
siblings has also weighed in the mind of the Court. The learned Judge has
exercised her discretion by condoning the delay in the interests of justice.
Though specifically, the factum of sufficient cause has not been stated, I am
able to perceive from the reasoning given by the learned Judge that the illness
of the respondent, before me, is the reason why she has exercised her discretion
in his favour.
4. It is not as if the learned Judge had allowed the application without
any condition. The learned Judge has imposed a condition that a sum of
Rs.3,000/- should be paid within a time limit. The learned Judge, having
exercised the discretion, I do not want to interfere with the said discretion in
exercise of the power under Article 227 of the Constitution of India. The
petitioner is permitted to withdraw the cost, if it has not been received and if it
has been deposited.
5. Further, discretionary order is not susceptible to be revised in terms of
the judgment in the case of N.Balakrishnan vs M.Krishnamurthy 1998 7 SCC
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CRP No.3887 of 2019
V.LAKSHMINARAYANAN,J.
sr
123. Following the said judgment, the Civil Revision Petition is dismissed.
However, the learned trial Judge is requested to give priority to the suit, being
the suit between brothers and dispose of the same on or before 30.04.2024.
6. With the above direction, the Civil Revision Petition is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
19.09.2023
Index:Yes/No
Speaking order/Non-speaking order
sr
To
Principal District Munsif Court, Mayiladuthurai
CRP No.3887 of 2019
https://www.mhc.tn.gov.in/judis
