Madras High Court
S.Bharathiraja vs R.Subramanian (Deceased) on 11 September, 2025
A. No. 3395 of 2025
and C.S. No. 412 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.09.2025
CORAM
THE HONOURABLE Dr. JUSTICE R.N.MANJULA
A. No. 3395 of 2025
and C.S. No. 412 of 2015
S.Bharathiraja ...Applicant
Vs.
R.Subramanian (deceased)
1.Kalavathy Subramanian
2.Vindhya Subramanian
3.R.Anandhi
4.M.K.Raja
5.S.Senthil
6.S.Shanmugam
7.P.Varalakshmi
8.S.Raviendran
9.C.Chinnazhaku
10.Uthamaprabhu
11.Mayuri
12.LIC Housing Finance Limited
No.30/1A, Abdul Razack
1st Street, Saidapet, Chennai-600015.
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A. No. 3395 of 2025
and C.S. No. 412 of 2015
13.Easy Access Financial Services Limited
'ACCESS HOUSE', 24, Judge Jambulingam Road
Mylapore, Chennai-600004.
[Defendants 7 to 12 are impleaded as per
order dated 21.12.2021 made in
A.No.3718 of 2021 and time extended as
per order dated 21.01.2022.]
... Respondents
Prayer : This application has been filed under Order XIV Rule 8 of the
Original Side Rules read with Section 5 of the Limitation Act, to
condone the delay of 263 days in filing to set aside the exparte decree
dated 16.08.2024 made in C.S. No. 412 of 2015.
For applicant : Mr.R.Thiagarajan
For Respondents : Mr.K.Harishankar (RR1 & 2)
-----
The application has been filed to condone the delay of 263 days in
filing to set aside the exparte decree dated 16.08.2024 made in C.S. No.
412 of 2015.
2. The applicant is the 10th defendant.
3. The suit has been filed by the respondents 1 and 2 /plaintiffs for
seeking the relief of declaration and for permanent injunction.
4. As the Defendant No.10 was set exparte, he has filed this
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A. No. 3395 of 2025
and C.S. No. 412 of 2015
application seeking to condone the delay of 263 days in filing to set
aside the exparte decree dated 16.08.2024 made in C.S. No. 412 of 2015.
5. The learned counsel for the applicant submitted that after
receiving the summons, he entrusted the matter to the then counsel,
whom he engaged and briefed him about his side of the matter, but the
counsel kept the applicant at dark and he came to know later that he was
not defended the suit and a decree had been passed.
6. The plaintiffs came to know about the decree dated 16.08.2024
only on 26.05.2025 and due to intervening summer holidays, he could
not ascertain the correct position and hence, he is not able to file this
application within a period of 30 days of limitation.
7. Rest of the arguments made by the learned counsel for the
applicant and averments made in the application relate to the merits of
the suit.
8. The learned counsel for the respondents /defendants submitted
that the applicant, who has got the knowledge about the pendency of the
suit as early as in the year 2018, after he received the summons, cannot
now claim that he had knowledge about the disposal of the suit only in
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A. No. 3395 of 2025
and C.S. No. 412 of 2015
the year 2025.
9. He further submitted that the decree is a contested decree and it
cannot be considered as an exparte decree. He further submitted that the
applicant had mortgaged his property and the mortgagee had been
impleaded as 12th defendant in the suit.
10. He further submitted that during the pendency of the suit, the
applicant himself had on 14.07.2023 sold the property to a third party,
by name Abdul Gani, and the said fact had also been stated in his
affidavit.
11. At the outset, it is to be noted that the judgment passed in the
suit is not perse an exparte judgment and the judgment had been passed
after hearing the contested parties, who appeared and severely contested
the matters.
12. Insofar as this applicant is concerned, he has also admitted the
fact that he had received the summons in the suit and he had also
engaged an Advocate and given him instructions. In such view of the
matter, it is for the defendants to follow up the proceedings by
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A. No. 3395 of 2025
and C.S. No. 412 of 2015
frequently contacting his counsel in order to know the stage of the
proceedings. However, the applicant remained quite and after the decree
has been passed, he has come to the Court and stated that he had
knowledge about the decree only on 26.05.2025.
13. In fact, the applicant had also stated in the affidavit that he had
sold the property itself to a third party, by name Abdul Gani, by virtue of
a registered Sale-deed dated 14.07.2023. The applicant having sold away
his right in the property claims now to set aside the decree in order to
protect the interest of his purchaser. The majority of the contentions that
have been raised in the application is about the applicant's right or the
weakness of the case of the plaintiff.
14. Since the judgment itself is passed on merits and not exparte
decree, it would have been appropriate on the part of the applicant /10 th
defendant to file an appeal after seeking leave of the Court. The reasons
stated by the applicant is that the counsel has not properly updated him
is not acceptable because he cannot keep quite after having engaged the
counsel in the year 2018.
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A. No. 3395 of 2025
and C.S. No. 412 of 2015
15. As the decree only passed in the year 2024, it is unbelievable
that the applicant did not contact his counsel for a period of 10 years.
The failure on the part of the applicant to contest the matter effectively
by properly interacting with his counsel cannot cause hardship to the
parties, who have been actively participated in the proceedings and got a
decree ultimately. Setting aside the decree, which has been passed on
merit, not only affects the interest of the plaintiff but also other
defendants, who have been actively participated the suit proceedings.
16. As I do not find any merits in the application now filed by the
applicant /10th defendant to condone the delay, I prefer to dismiss the
same.
17. Accordingly, this application stands dismissed. No costs.
11.09.2025
Maya
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A. No. 3395 of 2025
and C.S. No. 412 of 2015
Dr.R.N.MANJULA, J.
Maya
Dated : 11.09.2025
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