Madras High Court
C. Durairaj vs K.C. Vellai on 27 February, 2012
Author: R.S. Ramanathan
Bench: R.S. Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.2.2012 Coram: THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN CIVIL REVISION PETITION No.3232 of 2009 C. Durairaj ... Petitioner vs. K.C. Vellai ... Respondent Civil Revision petition filed under Section 115 of C.P.C against the fair and decretal orders dated 24.08.2009 passed in I.A.No.172 of 2009 in O.S.No.193 of 1998 on the file of the District Munsif, Polur. For Petitioner : Mr.P.Seshadri For Respondent : Mr.V.Raghavachari O R D E R
The defendant in O.S.No.193 of 1998 on the file of the District Munsif, Polur, is the revision petitioner herein.
2.The respondent/plaintiff filed a suit for permanent injunction against the revision petitioner/defendant and in that suit, the revision petitioner/defendant entered appearance through counsel. But, he did not file any written statement. Therefore, he was set ex-parte and the ex-parte decree was passed on 13.2.2001. Thereafter, the revision petitioner filed an application under Section 5 of the Limitation Act in I.A.No.172 of 2009 to condone the delay of 2958 days in filing the application to set aside the ex-parte decree and the said application was dismissed on 24.8.2009. Aggrieved by the same, this civil revision petition has been filed.
3.It is submitted by the learned counsel for the revision petitioner/defendant that the respondent/plaintiff is the brother of the revision petitioner and the revision petitioner was in Army till December 2008 and only after retiring from Army, he came to know that the suit was set ex-parte against him and thereafter, he took steps to set aside the ex-parte decree dated 13.2.2001 and in that process there happened to be a delay of 2958 days and hence, the same has to be condoned.
4.The learned counsel for the revision petitioner/defendant further submitted that the revision petitioner/defendant has a valid defence and he has also filed a written statement along with the application to set aside the ex-parte decree with a delay of 2958 days. In support of his submission, he has relied on the decision of the Hon'ble Supreme Court in UNION OF INDIA V.GIANI (2011 AIR SCW 1388). In that decision, the Supreme Court has held that while considering the application to condone the delay, the Court has to look at the merits of the case and if the petitioner has got a valid defence that can be considered while condoning the delay. He also relied upon the decision of this Court in V.R.BALAKRISHNAN V V.KANTHAMMAL AND OTHERS in C.R.P.(NPD)No.3009 of 2008.
5.The learned counsel for the revision petitioner/defendant further submitted that the respondent/plaintiff has no title to the suit property and he claimed to be in joint possession with the revision petitioner and he also prayed for permanent injunction and therefore, the suit filed by the respondent/plaintiff was not maintainable as no injunction can be granted against another co-sharer. He further submitted that the respondent/plaintiff also issued a notice dated 17.4.1999 stating that he was not in possession of the suit property and the suit was filed in the year 1998 for injunction and therefore, it is made clear from the admission of the respondent/plaintiff that he was not in possession of the suit property and hence, the delay can be condoned.
6.It is seen from the order of the Court below that the revision petitioner was examined as P.W.1 and in cross examination, he deposed that while in service, he used to come to the village once in two years and therefore, the case of the revision petitioner that he came to know about the ex-parte decree only in the year 2009 cannot be accepted. Therefore, the Court below has rightly dismissed the application holding that even in the year 2001, the revision petitioner himself was aware of the ex-parte decree and without taking any steps for all these years, it is not open to the revision petitioner to file an application for condoning the delay of 2958 days to set aside the ex-parte order dated 13.02.2001 after eight years. I also do not find any infirmity in the order passed by the Court below.
7.Moreover, in the decision in UNION OF INDIA V.GIANI (2011 AIR SCW 1388), the Supreme Court has held that if the Court feels that the revision petitioner has got strong arguments on his behalf that can also be taken into consideration, while considering the sufficient cause.
8.This Court has also followed the said judgment in the order passed in C.R.P.(NPD)No.3009 of 2008 (V.R. BALAKRISHNAN V. V. KANTHAMMAL AND OTHERS).
9.According to me, the facts of those cases are different and having regard to the facts of those cases, merits were taken into consideration. In this case, admittedly, the suit was filed for permanent injunction and according to the respondent, he is in joint possession of the suit property with the revision petitioner/defendant. Therefore, it was contended that the respondent/plaintiff cannot ask for an order of injunction and he has to file a suit for recovery of possession. Further, according to the revision petitioner/defendant, he is the owner of the suit property and the adjoining property was allotted to the share of the respondent and the case of the respondent/plaintiff was that he was in joint possession of the suit property with the revision petitioner. It is seen from the prayer in the plaint that the revision petitioner should not disturb the joint enjoyment of the respondent till partition is effected. Therefore, no prejudice would be caused to the revision petitioner by dismissing the application and it is open to both the parties to file a suit for partition or declaration. As the revision petitioner/defendant has not made out a case for condoning the long delay, I do not find any necessity to interfere with the order of the Court below. Hence, the Civil Revision Petition is dismissed. No costs.
cla To
1.The District Munsif, Polur.
2.The Section Officer, V.R.Section, High Court, Madras