Madras High Court
Lagumakka vs Prabhu on 6 September, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
C.R.P.No.4697 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.4697 of 2023
and C.M.P.No.27916 of 2023
1. Lagumakka
2. Chennagowdu ... Petitioners
Vs
Prabhu ... Respondent
PRAYER : Civil Revision Petition filed under Section 115 of Civil Procedure
Code pleased to set aside the fair and decreetal order passed in I.A.No.1 of 2022 in
O.S.No.173 of 2006 dated 26.06.2023 on the file of the District Munsif cum
Judicial Magistrate at Denkanikottai, Krishnagiri.
For Petitioners : Mr.Venkatesh
For Respondent : Mr.A.Arvind Raj.B
for Mr.A.Sakthivel
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https://www.mhc.tn.gov.in/judis
C.R.P.No.4697 of 2023
ORDER
This Civil Revision Petition has been filed to set aside the fair and decreetal
order passed in I.A.No.1 of 2022 in O.S.No.173 of 2006 dated 26.06.2023 on the
file of the District Munsif cum Judicial Magistrate at Denkanikottai, Krishnagiri,
dismissing the petition filed under Section 5 of Limitation Act to condone the
delay of 1912 days in filing the petition under Order 9 Rule 13 of CPC.
2. The learned counsel for petitioners submitted that the petitioners are
senior citizens aged about 85 and 75 years respectively. Since the 1st petitioner is a
lady, the 2nd petitioner was taking care of the litigation. While being so, the 1st
petitioner fell ill and affected with Jaundice and was bed ridden for few months
and during such time, the ex-parte judgment came to be passed on 22.12.2016.
Subsequently, there was Covid lockdown and thereby, the petitioners were unable
to file the petition within time and there had been delay of 1912 days in filing
petition seeking to set aside the ex-parte order. He further submitted that the power
to condone the delay is a discretionary power and the trial court had failed to
exercise the discretion and thereby, the present revision has been filed.
3. Per contra, the learned counsel representing the learned counsel for the
respondent, would submit that the petitioners/defendants were initially set ex-parte
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on 14.06.2006 since they did not appear after service of summon. Thereafter, they
filed I.A.No.694/2006 seeking to set aside the ex-parte order and that the earlier
ex-parte order was set aside vide order dated 07.12.2006 and subsequently, the
petitioners had filed written statement. Thereafter, once again on 19.10.2016, when
the case was posted for trial on special list, the petitioners/defendants were called
absent and the learned counsel for the petitioners/defendants reported no
instructions and therefore, the petitioners/defendants were set ex-parte on
19.10.2016 and subsequently, the ex-part decree came to be passed on 22.12.2016
itself. Though the 2nd petitioner claimed to have been affected with Jaundice and
took treatment at Ayurveda Doctor, they had not produced any documents to
substantiate the same. Even in the affidavit, the 1st petitioner has claimed to have
been bed ridden only for few months and there was no explanation for the
subsequent period. Further, the peak of Covid-19 pandemic was only during 2020
and there was no explanation for the delay between 2016 to 2022. Therefore, the
trial Court having found that the petitioners had not shown sufficient cause to
condone the enormous delay of 1912 days in filing the petition to set aside the
order, had dismissed the same. Therefore, there is no infirmity or illegality in the
order passed by the trial Court.
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4. Heard both sides and perused the materials available on record.
5. It is the claim of the petitioners that the 2nd petitioner who was pursuing
the case was affected with Jaundice and was taking treatment at Ayurveda Doctor
and during such time, the ex-parte order came to be passed on 22.12.2016.
However, he had not produced any documents to substantiate the same and that
there was no explanation for the period between 2016 to 2022. Therefore, the trial
Court on finding that no sufficient cause had been shown by the petitioners, had
dismissed the petition filed by the petitioners seeking to condone the delay of
1912 days in filing the petition to set aside the ex-parte decree.
6. This Court finds no infirmity or illegality in the order passed by the trial
Court.
7. Therefore, this Civil Revision Petition is dismissed. Consequently,
connected Civil Miscellaneous Petition is closed. No costs.
06.09.2024
Index : Yes / No
Neutral Citation : Yes / No
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To
The District Munsif cum Judicial Magistrate at Denkanikottai,
Krishnagiri.
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A.D.JAGADISH CHANDIRA, J.
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06.09.2024
https://www.mhc.tn.gov.in/judis
