Madras High Court
Sethupathi vs Marunthayi on 7 November, 2024
C.R.P.(MD) No.336 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 04.11.2024
Pronounced on 07.11.2024
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) No.336 of 2022
and
C.M.P.(MD) No.1448 of 2022
Sethupathi
S/o.Malaichamy ... Petitioner
Vs.
Marunthayi
W/o.Late.Ramachandran ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India praying to set aside the fair and decreetal order dated 12.11.2021
made in I.A.No.1 of 2019 in O.S.No.26 of 2015 on the file of the
Subordinate Judge, Sivagangai.
For Petitioner : Mr.G.Prabhu Rajadurai
For Respondent : Mr.PT.S.Narendravasan
ORDER
This Civil Revision Petition has been filed by the plaintiff in
O.S.No.26 of 2015 on the file of the Subordinate Court, Sivagangai,
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challenging the fair and decreetal order dated 12.11.2021 passed in
I.A.No.1 of 2019 in O.S.No.26 of 2015. The respondent is the defendant
in the above suit.
2. The revision petitioner, as plaintiff, filed the above suit in
O.S.No.26 of 2015 for the relief of specific performance. Since the
respondent/defendant remained ex parte, an ex parte decree was passed
against her on 07.08.2015.
3. Thereafter, the respondent/defendant filed an application in
I.A.No.1 of 2019 for condonation of delay of 777 days in filing the
application for setting aside the ex parte decree dated 07.08.2015 passed
against her. The trial court, applying the principles laid down by this
Court in the judgment in Chandra and others v. M. Devendran, reported
in 2019 (4) CTC 61, allowed the said application, subject to the
respondent/defendant paying a sum of Rs.2,71,000/- to the revision
petitioner/plaintiff, which is the cost incurred by the revision
petitioner/plaintiff for registering the sale deed, within a period of one
month.
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4. Aggrieved by this order, the plaintiff has filed this revision
petition.
5. Mr.G.Prabhu Rajadurai, the learned counsel for the revision
petitioner/plaintiff, submits that there was an Agreement between the
revision petitioner/plaintiff and the respondent/defendant, as per which,
the respondent/defendant agreed to sell his property in favour of the
revision petitioner/plaintiff and the respondent/defendant also received a
sum of Rs.4,00,000/- as advance at the time of execution of the said
Agreement; that thereafter, the respondent/defendant failed to execute the
Sale Deed in favour of the revision petitioner/plaintiff and hence, the
revision petitioner/plaintiff was constrained to file the above suit for
specific performance; that since the respondent/defendant neither filed
written statement nor appeared before the trial court, the trial court, on
07.08.2015, passed an ex parte decree in favour of the revision
petitioner/plaintiff; that thereafter, an execution petition was filed by the
revision petitioner/plaintiff, which was allowed by the trial court; and that
the Sale Deed was also executed through the Court in favour of the
revision petitioner/plaintiff, which was registered before the Sub
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Registrar, Madagupatti, for which, the revision petitioner/plaintiff spent a
sum of Rs.1,72,000/- for stamp duty.
6. He further submits that after execution of the Sale Deed, i.e.,
after a lapse of 777 days, the respondent/defendant filed the application
under Section 5 of the Limitation Act for condonation of delay in filing
the application for setting aside the ex parte decree and that the trial court,
without taking into account that no satisfactory explanation has been
attributed by the respondent/defendant for the delay of 777 days in filing
the application for setting aside the ex parte decree and without assigning
any valid reasons to condone the enormous delay, allowed the application
for condonation of delay.
7. On the other hand, Mr.PT.S.Narendravasan, the learned counsel
for the respondent/defendant, submits that during the pendency of the suit,
the husband of the respondent/defendant died and further, the
respondent's/defendant's leg was injured, and therefore, she was unable to
attend the court during the trial; that the trial court having found the
explanation given by the respondent/defendant to be sufficient allowed
the condone delay application by passing a conditional order directing the
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respondent/defendant to pay a sum of Rs.2,71,000/- to the revision
petitioner/plaintiff; that pursuant to the said order, the
respondent/defendant has deposited Rs.2,71,000/- to the credit of the suit
and the same is also admitted on the side of the revision
petitioner/plaintiff.
8. The learned counsel for the respondent/defendant further submits
that the respondent/defendant has also filed the written statement, in
which it is clearly stated that the said Agreement was executed only for a
loan transaction and the respondent/defendant never intended to sell the
suit properties in favour of the revision petitioner/plaintiff. He, even on
merit, submits that the respondent/defendant has a valid defence to
succeed.
9. Heard on both sides. Records perused.
10. Admittedly, the revision petitioner/plaintiff has filed the above
suit for specific performance; since the respondent/defendant has neither
filed written statement nor appeared before the trial court, an ex parte
decree was passed against her; thus, the respondent/defendant has filed an
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application in I.A.No.1 of 2019 for condonation of delay of 777 days in
filing the application for setting aside the ex parte decree; the trial court
allowed the said application by directing the respondent/defendant to pay
Rs.2,71,000/- which was spent by the revision petitioner/plaintiff for
execution of Sale Deed in his favour by virtue of the ex parte decree; and
the respondent/defendant has paid the same and filed the written
statement.
11. Order IX, Rule 13 of the CPC provides a legally framed
procedure for setting aside an ex parte decree, where the defendant can
apply to the court to have the decree set aside if they can demonstrate
valid reasons for their non-appearance. Therefore, the burden of proof lies
on the defendant to show that their non-appearance was not due to
negligence but was caused by justifiable reasons.
12. In this case, the respondent/defendant has given sufficient
reasons for her non-appearance at the time of trial. According to the
respondent/defendant, since she has lost her husband and was suffering
from ailments, she was unable to attend the court during the trial. The
respondent/defendant has clearly demonstrated that she had a valid reason
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for not appearing before the trial court during the trial. In the impugned
order, the trial court has also considered that the reasons attributed by the
respondent/defendant are sufficient to condone the delay of 777 days.
13. Moreover, to meet the ends of justice, the trial court directed the
respondent/defendant to pay a sum of Rs.2,71,000/- to the revision
petitioner/plaintiff, which is the cost incurred by the revision
petitioner/plaintiff for registering the Sale Deed. Furthermore, the specific
contention of the respondent/defendant is that she never intended to sell
her properties to the revision petitioner/plaintiff and that the Agreement
was only in pursuant to a loan transaction. Therefore, in the interest of
justice, an opportunity must be given to the respondent/defendant to put
forth her contention.
14. Therefore, no infirmity or perversity is found in the impugned
order, which calls for any interference. Considering that the suit was filed
in 2015, the trial court is directed to dispose of the suit expeditiously,
without granting unnecessary adjournments, and by providing sufficient
opportunities to the parties to put forth their contentions, but not later than
six months from the date of receipt of a copy of this order.
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15. In the result, this Civil Revision Petition is dismissed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
07.11.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
The Subordinate Judge,
Sivagangai,
Sivagangai District.
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K.GOVINDARAJAN THILAKAVADI, J.
JEN
Pre-Delivery Order made
in
and
07.11.2024
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