Madras High Court
Thirumalai Kumar vs Sankaralingam on 22 January, 2025
C.R.P(NPD)(MD)No.855 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.01.2025
CORAM :
THE HONOURABLE Mr. JUSTICE G.ILANGOVAN
C.R.P(NPD)(MD)No.855 of 2022
and C.M.P(MD)No.3404 of 2022
Thirumalai Kumar ... Petitioner
Vs
1.Sankaralingam
2.Ramesh
3.Murugan
4.Subramanian ... Respondents
Prayer : This Civil Revision Petition is filed under Section 115 of
C.P.C., against the fair and decreetal order in I.A.No.121 of 2018 in
unnumbered AS of 2018 passed by the Principal Sub Court, Tenkasi
dated 06.10.2021.
For petitioner : Mr.K.P.Narayanakumar
For Respondents : Mr.D.Srinivasaraghavan for R1
Mr.F.X.Eugene for R2
No Appearance for R3 & R4
1/8
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C.R.P(NPD)(MD)No.855 of 2022
ORDER
This Civil Revision Petition is filed against the fair and decreetal
order in I.A.No.121 of 2018 in unnumbered AS of 2018 passed by the
Principal Sub Court, Tenkasi dated 06.10.2021.
2. The facts in brief:
Suit in O.S.No.79 of 2009, which was later transferred to District
Munsif Court, Sengottai and renumbered as O.S.No.18 of 2012, was filed
by the first respondent Sankaralingam, against the revision petitioner and
the respondents 2 to 4, seeking the relief of partition, separate
possession, permanent injunction and costs. The trial Court, after full
contest, passed a preliminary decree for partition by the judgment and
decree dated 30.03.2012. In pursuance of the preliminary decree, an
interim application was filed in I.A.No.751 of 2012.
3. The revision petitioner intend to file an appeal against the
judgment and decree passed by the trial Court. In preferring the appeal,
there is a delay of 2283 days. He has filed an application under Section 5
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C.R.P(NPD)(MD)No.855 of 2022
of the Limitation Act before the appellate Court viz., Principal Sub
Court, Tenkasi in I.A.No.121 of 2018 with the following averments:
3.1. During the pendency of the suit before the trial Court, he was
affected by Jaundice. However, he frequently contacted his advocate,
but he informed him that he may come as and when required. Because of
that he was unable to file written statement and the preliminary decree
was passed on 30.03.2012. His advocate A.K.C.Rajan died and
thereafter, there was none to take care of his case. He came to know
about the ex-parte order only on 14.09.2016, when he received notice
from the Commissioner. Apart from that, he has mentioned in the
affidavit about the merits of the matter.
4. That petition was resisted by the respondents by filing counter
stating that the revision petitioner remains ex parte. Even in final decree
proceedings in I.A.No.751 of 2012, he was set ex parte on 09.07.2013.
To set aside the ex parte order, he filed I.A.No.214 of 2016 on
17.10.2016. The application filed by the revision petitioner in
I.A.No.418 2013 to set aside the ex parte preliminary decree was also
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C.R.P(NPD)(MD)No.855 of 2022
dismissed. The delay mentioned by the revision petitioner is huge and it
was not properly explained.
5. After recording the evidence of parties, the appellate Court by
an order dated 06.10.2021, dismissed the petition. Against which this
Civil Revision Petition is preferred.
6. Heard both sides.
7. We will straight away go to the dates and events mentioned in
the counter. The preliminary decree was passed on 30.03.2012.
Thereafter, final decree was also passed in I.A.No.751 of 2012, wherein
also the revision petitioner remained ex parte and ex parte order was
passed on 09.07.2013. He filed an interim application in I.A.No.214 of
2016 to set aside the ex parte order in the final decree proceedings and
the same was also dismissed. Now, again he wants to file an appeal
against the preliminary decree. According to him, the first reason is that
he was affected by Jaundice. The second reason is that his advocate was
dead and none was available to take care of his case. When he filed an
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C.R.P(NPD)(MD)No.855 of 2022
application in I.A.No.214 of 2016 to set aside the ex parte order in the
final decree application, he had knowledge about the preliminary decree.
But, no steps were taken by him to file an appeal immediately. On
coming to know about the preliminary decree, he waited for about 2283
days for filing appeal. As mentioned by the respondents, he has not
taken any steps for filing an application to set aside the preliminary
decree.
8. Even though it is submitted by the learned counsel for the
petitioner that because of the death of his advocate only, he was unable
to prosecute the matter in a proper manner, those things cannot be taken
into account. It is for the revision petitioner to contact his advocate
frequently and know the stage. A bald statement is made as if he was
affected by Jaundice for all these days. Such a contention is absolutely
baseless, meaningless and without responsibility, such a ground is made.
9. The suit was filed in the year 2012. It could not be completed
even after lapse of 13 years. The revision petitioner by his own conduct
exhibited lethargic attitude. Such a conduct cannot be encouraged. So, I
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C.R.P(NPD)(MD)No.855 of 2022
have absolutely no reason to differ from the order passed by the appellate
Court. Accordingly, this Civil Revision petition fails and the same is
dismissed. Consequently, connected miscellaneous petition is closed.
No costs.
22.01.2025
NCC :Yes/No
Index :Yes/No
Internet : Yes/ No
vsm
https://www.mhc.tn.gov.in/judis
C.R.P(NPD)(MD)No.855 of 2022
To
1.The Principal Sub Court, Tenkasi
2.The Section Officer, VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(NPD)(MD)No.855 of 2022
G.ILANGOVAN, J.
vsm
C.R.P(NPD)(MD)No.855 of 2022
22.01.2025
https://www.mhc.tn.gov.in/judis
