Madras High Court
Chinnaraj vs K.E.Lakshmanan on 21 February, 2022
Author: P.T. Asha
Bench: P.T. Asha
C.R.P.(NPD) No.1892 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.02.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.R.P.(NPD) No.1892 of 2019
and
C.M.P.No.12428 of 2019
1. Chinnaraj
2. Chinnasami
3. Rajivgandhi
4. Dharuman ... Petitioners
Vs.
1. K.E.Lakshmanan
2. Hemamalini
3. Susaritha ... Respondents
PRAYER: Civil Revision Petition filed under Section 115 of Code of
Civil Procedure, against the fair and decretal order dated 26.10.2018 on
the file of the District Munsif Court, Palacode (FAC) passed in
I.A.No.1022 of 2017 in O.S.No.130 of 2015.
For Petitioners : Mr.I.Abrar Mohammed Abdullah
For Respondents : Mr.A.Tamilvanan
*****
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C.R.P.(NPD) No.1892 of 2019
ORDER
The revision petitioners, who are the defendants, have filed this revision, challenging the dismissal of their application for condoning the delay of 460 days in filing the application for setting aside the ex-parte decree.
2. The respondents herein have filed the suit O.S.No.130 of 2015 on the file of the District Munsif Court, Palacode for recovery of possession of the suit schedule properties. The defendants had originally entered appearance through counsel before the trial Court. However, they had failed to file the written statement and consequently, they were set ex-parte, by order dated 26.02.2016. Thereafter, the District Munsif, Palacode had proceeded to hear the suit and an ex-parte decree came to be passed on 13.07.2016. The decree holders/plaintiffs had filed an execution petition in E.P.No.34 of 2017 on the file of the District Munsif, Palacode for recovery of possession. After notice in the execution petition had been served on the 2/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1892 of 2019 defendants, they had woken up to the fact that an ex-parte decree had been passed against them. Thereafter, the impugned interlocutory application, viz., I.A.No.1022 of 2017 was filed by the defendants, seeking to condone the delay of 460 days in filing the application to set aside the ex-parte decree. In the affidavit filed in support of the said application, the first defendant, who had sworn to an affidavit for himself and on behalf of the other defendants as well, stated that he was not keeping good health and therefore, they were unable to contact their counsel. That apart, their counsel had also not kept them abreast of the developments in the suit, as a result, they were unable to appear before the trial Court on 26.02.2016 and file their written statement, as a result of which, they had been set ex-parte and consequently, an ex-parte decree came to be passed on 13.07.2016. It was only when the husband of the second plaintiff had come into the suit properties with his henchmen, they came to know about the proceedings and immediately, they have come forward with the application to set aside the ex-parte decree. However, in the interregnum, a delay of 460 days had occurred. Therefore, they had come forward with the application 3/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1892 of 2019 to condone the delay of 460 days in filing the application to set aside the ex-parte decree.
3. The plaintiffs, as respondents, resisted the above application, inter alia contending that the change of vakalat had been filed along with the condone delay application. It appears that no objection from the earlier counsel had been obtained even as early as on 26.03.2016. Therefore, the contention that the defendants' counsel had not kept them informed about the developments, was a blatant lie. They also submitted that the defendants are very much aware about the proceedings, but they have deliberately kept away from the same. Therefore, the application should be dismissed.
4. The learned District Munsif, Palacode, by his order dated 26.10.2018, dismissed the said application on the basis that the reasons for the delay had not been satisfactorily explained. Challenging the said order, the defendants are before this Court as revision petitioners. 4/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1892 of 2019
5. Heard the learned counsel appearing on both sides and perused the records.
6. The suit is one for recovery of possession. The revision petitioners/defendants, who had been served with the summons, had appeared before the Court below through a Counsel, but had not filed their written statement, as a result, they had been set ex-parte on 26.02.2016 and 5 months later, an ex-parte decree came to be passed on 13.07.2016. The first defendant has sworn to an affidavit filed in support of the application, wherein, he would submit that he was over 70 years of age and he had been suffering from certain ailments and since he is the person, co-ordinating with the Advocate, he was not in a position to keep his lawyer informed and further, the lawyer had not kept him informed about the status of the case. As a result of which, they were unable to appear before the Court and the ex-parte decree came to be passed. The suit is one for recovery of possession and the execution petition is now pending. The defendants have a substantial defence to put forward in the present suit, which was filed for recovery 5/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1892 of 2019 of possession of the suit schedule properties. There was an earlier round of litigation between the plaintiffs and defendants in O.S.No.82 of 2012 before the District Munsif Court, Palacode, seeking an injunction restraining the defendants from evicting them from the suit properties except by due process of law and the present suit is only a sequel to the above judgment and decree. It has been time and again held by this Court as well as the Hon'ble Apex Court that, if reasons have been given, then the Courts below should exercise their discretion in favour of the persons seeking to condone the delay. As already submitted, the revision petitioners have shown sufficient cause for the delay. Therefore, the order dated 26.10.2018 passed by the learned District Munsif, Palacode, dismissing I.A.No.1022 of 2017 is set aside and I.A.No.1022 of 2017 in O.S.No.130 of 2015 is allowed.
7. Considering the fact that very same reasons are given for setting aside the ex-parte decree, this Court exercising jurisdiction under Article 227 of the Constitution of India, sets aside the ex-parte decree 13.07.2016 and a direction is issued to the District Munsif, 6/8 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1892 of 2019 Palacode, to dispose of the suit O.S.No.130 of 2015, within a period of six months from the date of receipt of a copy of this order.
8. The learned counsels appearing on either sides have assured this Court that they would co-operate with the Court below to dispose of the suit within a period of six months.
9. Accordingly, the Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
21.02.2022
Index : Yes/No
Speaking Order : Yes / No
srn/sp
To
1.The District Munsif, Palacode
2.The Section Officer,
VR Section, Madras High Court,
Chennai.
7/8
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) No.1892 of 2019
P.T. ASHA, J,
srn/sp
C.R.P.(NPD) No.1892 of 2019
and
C.M.P.No.12428 of 2019
21.02.2022
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https://www.mhc.tn.gov.in/judis