Madras High Court
V.Subramanian ... Revision vs Vasanthi on 14 February, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.02.2019
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
CRP NPD NO.4059 of 2013 and
M.P.No.1 of 2013
V.Subramanian ... Revision Petitioner
Vs.
Vasanthi ... Respondents
Prayer: Civil Revision Petition filed under Section 115 of the Code
of Civil Procedure against the orders dated 10.07.2013 passed by
the Additional District Munsif, Namakkal in I.A.No.1315 of 2012 in
O.S.No.612 of 2010.
For Revision Petitioner : Ms.Elizabeth Rani
For Respondent : Mr.T.Dhanyakumar
ORDER
Revision petition filed against orders passed by the trial court, dismissing the application, filed to condone the delay of 302 days in filing the application to set aside the exparte decree dated 21.11.2011.
http://www.judis.nic.in 2
2. The Revision petitioner is the defendant in the original suit. The respondent/plaintiff has filed the suit for declaration and injunction. Pending suit, the petitioner was set exparte and therefore, he filed a petition to set aside the exparte order passed against him and the same was allowed on payment of costs of Rs.250/-. Since cost was not paid, within the stipulated time, that petition was dismissed and so that his written statement was not taken on file. Thereafter, in the suit, exparte decree was passed on 21.11.2011. To set aside the said exparte decree, the petitioner has filed a petition along with a petition under Section 5 of the Limitation Act and he has also given reasons for non payment of costs, within the time, as directed by the trial court.
3. It is the contention of the revision petitioner that he and his son fell in sick and hence, they could not meet his counsel and instruct to pay cost and inview of the same, the delay of 302 days had been occurred.
4. The trial court considering the fact that earlier occasion the petitioner has not paid cost, dismissed the application holding that there is no sufficient cause for filing the application. http://www.judis.nic.in 3
5. Heard the learned counsel appearing for the revision petitioner as well as the respondent.
6. The contention of the learned counsel for the revision petitioner is that the suit itself is based on an unregistered Will, whereas, a registered Will was executed in favour of the defendant, much prior to the unregistered Will and unless an opportunity is given to the petitioner/defendant to defend the suit, his substantial right will be affected. He would further submit that the delay has been properly explained, however the trial court did not consider the same and dismissed the application.
7. Per contra, the learned counsel appearing for the respondent would submit that on previous occasion, the defendant had failed to pay cost and there is no sufficient reason for the delay and hence, he prayed for dismissal of the revision petition.
8. I have perused the orders passed by the trial court. Of course, the trial court passed condition order that on payment of cost of Rs.250/-, exparte order would be set aside. However, the petitioner has not paid the cost, within the stipulated time and therefore, application filed by the petitioner to receive his written statement was rejected. Thereafter, exparte decree was passed http://www.judis.nic.in 4 against the petitioner. As against the order, the petitioner has fileda petition to set aside exparte decree, with a delay of 302 days. In that application the petitioner was examined as PW1 and marked discharge summaries of his as Ex.P1 and Ex.P2. The trial court dismissed the application holding that the discharge summary reveals the fact that the petitioner's son had taken treatment only for three days from 27.07.2011 to 30.07.2011 as per Ex.P1 and five days from 17.08.2011 to 23.08.2011, as per Ex.P2, and for other days, there is no sufficient reason.
9. It is to be noted that when the parties are coming from the village back round with delay, they cannot be expected to give explanation for every day delay with accurate details. The court has to decide whether there are sufficient cause for every day's delay. When the discharge summaries itself shows that the petitioner's son has taken treatment in the hospital for some time, the court ought to have exercised liberal approach, particularly in keeping mind the rights of the parties.
10. It is the main contention of the revision petitioner that a registered Will has been executed in his favour, which is much prior to the unregistered Will, relied upon by the respondent. Therefore, this court is of the view that in order to advance http://www.judis.nic.in 5 substantial justice, liberal approach has to be given, in considering the facts and circumstances of the case. Accordingly, this revision petition is allowed.
11. In the result,
(i) The Civil Revision Petition is allowed. No costs.
(ii) The fair and decreetal order of the trial court are set aside.
(iii) The trial court is directed to receive the written statement of the defendant, frame necessary issues and dispose the suit within six months from the date of receipt of a copy of this order.
14.02.2019 Index : Yes / No Internet : Yes / No speaking/non speaking mst To
1. The Additional District Munsif, Namakkal.
http://www.judis.nic.in 6 N.SATHISHKUMAR, J.
mst CRP NPD No.4059 of 2013 and M.P.No.1 of 2013.
Date: 14.02.2019 http://www.judis.nic.in