Madras High Court
M.Balasubramaniam vs M.Ashokan on 23 June, 2025
C.R.P.No.448 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2025
CORAM
THE HON'BLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(PD)No.448 of 2022
1. M.Balasubramaniam
2. M.Sanjukumar
3. M.Jagadeesh .. Petitioners
Vs.
M.Ashokan .. Respondent
Prayer: Petition filed under Article 227 of the Constitution of India,
against the fair and decreetal order dated 03.12.2021 made in
I.A.No.1199 of 2017 in O.S.No.1761 of 2013 on the file of the Principal
District Munsif, Coimbatore.
For the Petitioners : Mr.N.Ponraj
For the Respondent : Mr.K.Rajasrinivas
for M/s.P.V.S.Giridhar Associates
ORDER
This civil revision petition challenges the order passed by the
learned Principal District Munsif, Coimbatore, in I.A.No.1199 of 2017
in O.S.No.1761 of 2013 dated 03.12.2021.
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2. For the sake of convenience, the parties would be referred to
as per their ranks in the suit.
3. The civil revision petitioners are the plaintiffs in the suit.
O.S.No.1761 of 2013 is a suit filed for the following relief:-
“a) directing the defendant herein to vacate from the
suit property and deliver vacant possession of the
same to the plaintiffs herein by way of mandatory
injunction.
b) directing the defendant to pay the plaintiffs the
cost of the suit.”
4. The case of the plaintiffs is that the suit schedule property
belongs to one Late Maruthaveeran, their father. The said
Maruthaveeran has obtained the property by way of a registered
partition deed in Document No.1634/1979 dated 26.03.1979. This
document is registered on the file of the Joint II Sub-Registrar,
Coimbatore. The plaintiffs, however, plead that on 26.05.2000, the
said Late Maruthaveeran executed a “Will” bequeathing the suit
property jointly in favour of the plaintiffs. The Joint I Sub-Registrar,
Coimbatore, has registered the document in Document No.250/2000
on 26.05.2000.
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5. The said Maruthaveeran passed away on 11.01.2005. The
plaintiffs plead that the defendant was in permissive occupation of the
property and refused to vacate the property, despite several demands
by the plaintiffs. Being left with no other alternative, they issued a
pre-suit notice and as there was no reply from the defendant, they
came forth with the suit.
6. It is not in dispute that suit summons was served upon the
defendant. Despite the same, the defendant did not enter appearance.
Therefore, he was set ex parte. The ex parte evidence was recorded
by the Court and the suit was decreed, as prayed for, on 25.04.2014.
7. To set aside the same, the defendant presented I.A.No.1199
of 2017. The reason given by the defendant is that on 25.04.2014, he
was not feeling well. Therefore, he was not in a position to instruct his
counsel in time. On account of ill health, he sought condonation of
delay of 642 days in filing the the application to set aside the ex parte
decree.
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8. The plaintiffs filed a detailed counter to the said application.
They pointed out that there was no bonafide ground to condone the
delay and to set aside the ex parte decree. According to them, the
total number of days is 1143 and not 642. Consequently, they sought
dismissal of the application.
9. The learned Trial Judge, who took up the application for
disposal, considered the application under Section 5 of the Limitation
Act, 1963, as if it were an application to condone the delay in
representing, as is clear in paragraph 5 and 6 of the impugned order.
On the basis of this finding, he proceeded further and condoned the
delay.
10. Aggrieved by the same, the plaintiffs are on revision before
this Court.
11. I heard Mr.N.Ponraj for the civil revision petitioners and
Mr.K.Raja Srinivas for M/s.P.V.S.Giridhar Associates for the
respondent.
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12. Mr.N.Ponraj has pointed out that the ex parte decree came
to be passed on 25.04.2014, whereas, the petition to condone the
delay was filed only on 16.07.2017 and therefore, the calculation
given by the defendant of 642 days is ex facie erroneous. He further
pointed out while the defendant had stated that there is a delay in
filing the application to set aside the ex parte decree, whereas, the
learned Trial Judge construed as if it is an application for condonation
of delay in representation and this also reveals patent non-application
of mind and ought to be interfered with by this Court in exercise of its
powers of revision.
13. Per contra, Mr.K.Raja Srinivas states that the learned Trial
Judge has given reasons why he has construed the application as an
application to condone the delay in representation. He states that the
application was filed on 02.06.2014 and therefore, the subsequent
period should only be construed as condone delay in representation.
Therefore, he states that since the Trial Court has exercised the
jurisdiction to condone the delay, this Court should not interfere in the
power of revision.
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14. I have carefully considered the submissions of both sides
and have gone through the records.
15. Before I proceed into the merits of the case, I have to
recollect the principles that have been laid down by the Supreme
Court in N. Balakrishnan vs M. Krishnamurthy1, wherein, the
Supreme Court has pointed out that if the Trial Court has condoned
the delay, this Court should loathe to interfere with the order in
exercise of the power of revision, unless and until the order passed, is
capricious or arbitrary.
16. Here is a case where the parties are siblings. Three siblings
want to recover the property from another. On the date of which the
ex parte decree was passed, apart from the first plaintiff, no one else
tendered evidence before the Court. The plaintiffs rely upon the
“WILL” executed by the father of the parties to this litigation. If not for
the “WILL”, the defendant also would havE a share. The least that is
expected to the plaintiffs is the examination of at least one attestING
1 1996 7 SCC 123
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witness to the document.
17. A perusal of the judgment of the Trial Court dated
25.04.2014 reveals no attestING witnesses had been examined. In
terms of the Indian Succession Act, 1925, and the Indian Evidence
Act, 1872, in order to prove a “WILL”, examination of at least one
attesting witness is essential. Even if a defendant were to remain ex
parte, still the Court would have to examine an attesting witness in
order to come to a satisfaction that the “WILL” had in fact been
written by the deceased testator.
18. When this was pointed out to Mr.N.Ponraj, he immediately
referred to the judgment made in Mohamed Ali vs V. Jaya & Ors.2
to plea that this Court should not look into the merits of the case at
the time of considering Section 5 of the Limitation Act, 1963.
19. A careful perusal of this judgment shows that, that was a
case where a learned Single Judge of this Court has set aside the
2 Civil Appeal No.4113 of 2022; Dated: 11.07.2022.
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decree itself on the ground that it does not satisfy the requirements of
Order XX Rule 6. The learned Single Judge had not considered
whether sufficient cause has been given, instead, she proceeded to
hold that the decree itself is liable to be interfered with in exercise of
power under Article 227. It was under those circumstances, the
Supreme Court followed the judgment of itself in Virudhunagar
Hindu Nadargal Dharma Paribalana Sabai and Ors. vs. Tuticorin
Educational Society and Ors.3, and held that the power under
Article 227 must not be exercised when there is an effective alternate
remedy available to the party.
20. The judgment of Mohamed Ali (supra) is not a proposition
that has been urged by Mr.N.Ponraj that this Court should not look
into the merits of the case while considering the merits and demerits
on application under Section 5 of the Limitation Act, 1963.
21. Here, the defendant has pleaded that he was not feeling
well. Counter that has been filed by the plaintiffs. Apart from merely
stating that there is no bonafide reason for condonation of delay, it
3 (2019) 9 SCC 538
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has not specifically denied the fact that the defendant had been sick
on 25.04.2014. What has not been denied has to be deemed to have
been admitted. Furthermore, as the learned Trial Judge has exercised
discretion, I am not inclined to interfere. Yet, I am inclined to modify
the order passed by the learned Trial Judge, for he has only imposed a
cost of Rs.3,000/- for condoning the delay.
22. The property is within the limits of Coimbatore Town and
everyday that the defendant is in occupation, it is going to create an
issue between the parties. Hence, while confirming the order of the
learned Trial Judge in condoning the delay, I am inclined to enhance
the cost from Rs.3,000/- to Rs.50,000/-.
23. Mr.K.Raja Srinivas states that the amount of Rs.3,000/- has
already been deposited by the defendant into the Court. He is given
four weeks' time from today to pay the balance of Rs.47,000/-. The
plaintiffs will be entitled to withdraw the amount already deposited
and the defendant has no objection for the plaintiffs to withdraw the
said amount.
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24. Once the aforesaid costs is paid, the learned Principal
District Munsif shall ensure that the written statement is filed in the
suit on or before 14.08.2025. In case the amount of Rs.47,000/- is not
paid within a period of four weeks from today or/and the condition for
filing a written statement is not complied with, the benefit granted in
this order will stand forfieted. Consequently, C.M.P.No.2372 of 2022 is
closed.
23.06.2025
Speaking Order/Non-Speaking Order
Index: Yes/No
Neutral Citation : Yes/No
drm
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To:
1. The Principal District Munsif, Coimbatore.
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V. LAKSHMINARAYANAN,J.
(drm)
23.06.2025
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