Madras High Court
M/S Broom Field Developers Private ... vs Mrs.Chellammal on 14 November, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.R.P.(NPD)No.44 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.11.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.R.P.(NPD) No.44 of 2023
1. M/s Broom Field Developers Private Limited
rep.by its Power of Attorney Holder S.Krishnan
Apex Towers, II Floor, No.54, Second Main Road
Opp.Kaliappa Hospital, Raja Annamalaipuram
Chennai 600 028
2. M/s Shankoo Builders
rep.by its Authorised Signatory S.Krishnan
Apex Towers, II Floor, No.54, Second Main Road
Opp.Kaliappa Hospital, Raja Annamalaipuram
Chennai 600 028 .. Petitioners
-vs-
1. Mrs.Chellammal
2. Mrs.Govindammal
3. Mrs.Gajalakshmi .. Respondents
Memorandum of Grounds of Civil Revision Petition filed under
Section 115 of the Code of Civil Procedure, against the order dated
20.06.2022 passed in I.A.No.1032 of 2018 in O.S.No.64 of 2015 on the file
of the learned Principal District Judge, Chengalpattu.
1/8
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C.R.P.(NPD)No.44 of 2023
For Petitioners :: Mr.K.Balamurali for
M/s Shivakumar and Suresh
For Respondents :: Mr.V.Subramanian
ORDER
Challenge has been made to the impugned order rejecting the
application filed by the petitioners to condone the delay of 246 days in
filing the petition to set aside the ex parte decree.
2. The revision petitioners are 8th and 9th defendants in the suit. The
suit has been laid originally by the respondents/plaintiffs for partition of the
suit properties. The revision petitioners have purchased the properties in
the year 2006-07 from the 2nd and 4th defendants. The said sale deeds were
sought to be challenged in the year 2015 by way of the suit. However, since
an ex parte decree has been passed on 14.07.2017, the petitioners took out
an application in I.A.No.1032 of 2018 to condone the delay of 246 days in
filing the petition to set aside the ex parte decree, on the ground that one of
the defendants has informed them that he was not aware of the ex parte
decree and therefore sought to condone the delay. The said application has
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been stoutly opposed by the respondents. The trial Court in the order
impugned, dismissed the application mainly on the ground that the
petitioners have not disclosed the fact as to how they came to know about
the ex parte decree. Further the trial Court has also taken note of the delay
on the part of the petitioners for two years. Hence, not satisfied with
sufficient cause, dismissed the application. Therefore, this revision.
3. The learned counsel for the revision petitioners would submit that
the petitioners were not residing in the address since 2008 and proper
summons have not been served upon them in the current place of business.
In any event, he submitted that merely because the petitioners have not
disclosed the source from whom they got knowledge about the ex parte
decree, that cannot be a ground to non-suit them. Hence, sufficient cause
has to be given liberal interpretation to advance substantial justice to the
parties. Therefore, he prayed for allowing the revision.
4. The learned counsel for the respondents would raise a preliminary
objection that the revision itself is not maintainable as against the dismissal
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of the application filed under Section 5 of the Limitation Act. Even on
merits, the learned counsel for respondents would submit that the delay is
willful and not being properly explained by the petitioners. That apart, there
was no explanation for the delay of more than two years. Hence, the delay
cannot be condoned and the trial Court has rightly rejected the application.
5. I have perused the entire materials available on record. So far as the
preliminary objection raised by the learned counsel for respondents that the
revision itself is not maintainable is concerned, this Court has held in
several judgments that the revision is maintainable as against the dismissal
of Section 5 application. That apart, in C.R.P.Nos.2088, 2089 & 2090 of
2024 dated 08.11.2024 (M.Saravanan v. N.Ponnurangam), this Court has
held that the revision is maintainable as against the dismissal of Section 5
application. This view has been clearly upheld by the Apex Court in the
judgment in State of Uttar Pradesh v. District Judge and others, (1984) 2
SCC 673, holding that against the dismissal of Section 5 application,
revision under Article 227 of the Constitution of India is maintainable.
Hence, this Court rejects the preliminary objection raised by the
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respondents.
6. So far as the impugned order challenged in this revision is
concerned, no doubt, to condone the delay, the parties should give proper
explanation for each and every day's delay. At the same time, the Court,
while deciding the application to condone the delay, has to consider the
nature of the rejection and its implication. Merely because the parties were
shown to be negligent for not approaching the Court within time, that
cannot be a ground to take away their substantial right. The petitioners have
filed the application to condone the delay in filing the petition to set aside
the ex parte decree. The suit filed by the respondents, though appears to be
for partition, primarily challenges the sale deeds of the years 1990 and 2006,
that too in the year 2015. Though the plea of non-service of summons have
not been pleaded in the application, it is the contention of the petitioners
that they were not residing in the address to which the summons were sent.
Be that as it may. Even assuming that summons have been served, when the
petitioners have come to the Court with reasons, considering the nature of
lis, which is to annul the documents of the year 1990 & 2006, this Court is
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of the view that reasonable opportunity ought to have been given to the
parties to raise their substantial defence in the matter. Though the
negligence of the parties is common, when the pleadings are normally made
by the counsels, mere lack of pleadings to suit the requirements of law, will
not take away the rights of the parties. Considering the length of delay i.e.,
246 days in this case, this Court is of the view that liberal approach ought to
have been shown by the trial Court, particularly considering the nature of
the lis involving the cancellation of the registered documents pertaining to
the years 1990 & 2006. Hence, taking a liberal approach, this Court is
inclined to set aside the impugned order. Accordingly, the impugned order
is set aside. The trial Court shall decide the application filed under Order
IX, Rule 13 of the Code of Civil Procedure on its own merits and thereafter,
in the event the application is allowed, shall dispose of the suit
expeditiously without any further delay. Consequently, C.M.P.No.415 of
2023 is closed. No costs.
Index: yes/no 14.11.2024
Neutral citation : yes/no
ss
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To
1. The learned Principal District Judge
Chengalpattu
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N.SATHISH KUMAR, J.
ss
14.11.2024
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