Madras High Court
Sulochana … vs Sivakumar on 20 September, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
C.R.P.NPD.No.1126 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2024
CORAM
THE HONOURABLE Mr. JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.NPD.No.1126 of 2023
and
C.M.P.No.7874 of 2023
Sulochana … Petitioner/Defendant
Vs
Sivakumar ... Respondent / Plaintiff
Prayer: Civil Revision Petition is filed under Section 115 of the Code of
Civil Procedure, against the Fair and Decretal Order of the learned
Subordinate Judge, Omalur, Salem District, dated 26.09.2022 in I.A.No.2 of
2021 in I.A.No.186 of 2018 in O.S.No.395 of 2018.
For Petitioner : Mr.A.Anburaj
For Respondent : Mr.T.S.Vijayaraghavan
1/7
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C.R.P.NPD.No.1126 of 2023
ORDER
This Civil Revision Petition is filed seeking to set aside the fair and
decretal order dated 26.09.2022 in I.A.No.2 of 2021 in I.A.No.186 of 2018
in O.S.No.395 of 2018 on the file of the Subordinate Judge, Omalur, Salem
District.
2. The defendant in O.S.No.395 of 2018 is the petitioner herein and
the suit was filed for specific performance. After filing the written
statement, since the defendant did not appear before the trial Court, an ex-
parte judgment and decree came to be passed on 12.09.2014. Thereafter, the
respondent/plaintiff filed E.P.No.99 of 2015 before the Subordinate Court,
Mettur. On receipt of the notice in the execution proceedings, the
petitioner/defendant came to know about the ex-parte decree.
Subsequently, the petitioner had filed I.A.No.186 of 2018 under Section 5
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of the Limitation Act to condone the delay of 448 days in filing the petition
to set aside the ex-parte decree. The trial Court, by order dated 07.09.2018,
had allowed the petition, imposing costs of Rs.1,000/- to be paid by the
petitioner on or before 25.09.2018. However, since the cost was not paid
within the stipulated time, the trial Court had dismissed I.A.No.186 of 2018.
Thereafter, the petitioner had filed I.A.No.2 of 2011, seeking to condone the
delay of 1 year 3 months in paying the said costs of Rs.1,000/-. However,
the trial Court by order dated 26.09.2022, had dismissed the same, against
which, the present revision has been filed.
3. Learned counsel for the petitioner submitted that due to
miscommunication between the petitioner and his counsel, the costs of
Rs.1,000/- could not be paid to the respondent within the time fixed by the
trial Court. He further submitted that since the suit is one for specific
performance and if an opportunity is not given to the petitioner, his right to
contest the case would be defeated.
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4. Learned counsel for respondent submitted that, originally, the suit
was filed on the file of the Sub-Court, Mettur in O.S.No.395 of 2018.
Thereafter, it was transferred to Sub-Court, Omalur, and it was re-numbered
as O.S.No.395 of 2018. The learned counsel prayed that this Civil Revision
may be allowed on terms.
5. Heard the learned counsel on both sides and perused the materials
available on record.
6. Taking into consideration the above submissions made by the
learned counsels, this Court is of the opinion that, in the interest justice, one
final opportunity can be granted to the petitioner. Accordingly, the Civil
Revision Petition is allowed, setting aside the impugned order and the
matter is remitted back to the trial Court for fresh consideration on
condition that the petitioner deposits a sum of Rs.10,000/- (Rupees ten
thousand only) to the credit of O.S.No.395 of 2018 within a period of two
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weeks from the date of receipt of a copy of this order. On such deposit
being made, the trial Court shall disburse the amount to the respondent /
plaintiff. The learned Subordinate Judge, Omalur is directed to complete
the trial within a period of 6 months from the date of receipt of a copy of
this order. In the event of the petitioner not co-operating for trial, the
learned Judge shall pass orders on the suit itself on merits and in accordance
with law. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
20.09.2024
Index : Yes/No
Speaking order/non-speaking order
srn
To
1. The Subordinate Judge,
Omalur,
Salem District.
2. The Section Officer,
V.R.Section,
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High Court, Madras.
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A.D.JAGADISH CHANDIRA, J.,
srn
and
20.09.2024
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