Madras High Court
R. Thangam vs S. Ramalingam
Author: S.Ananthi
Bench: S.Ananthi
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 23.12.2020
DELIVERED ON 19.01.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.R.P.(MD)No. 2508 of 2015 (NPD)
1. R. Thangam
2. M. Rajeswari ... Petitioners/Petitioners/
Defendant Nos.19 & 20
vs.
1. S. Ramalingam
2. S. Leela ... Respondents/Respondents/Plaintiffs
PRAYER: Petition filed under Section 115 of the Civil Procedure Code, to
set aside the order, dated 21.08.2015 made in I.A. No. 120 of 2015 in O.S.
No. 492 of 2008 on the file of the District Munsif Cum Judicial Magistrate
Court, Vadipatti.
For Petitioners : Mr.V. Thirumal
For Respondents : Mr. M. Venkatesan
******
ORDER
The Civil Revision Petition has been filed to set aside the order, dated 21.08.2015 made in I.A. No. 120 of 2015 in O.S. No. 492 of 2008 on the file of the District Munsif Cum Judicial Magistrate Court, Vadipatti. http://www.judis.nic.in 2
2. The respondents herein/plaintiffs have filed a suit in O.S. No. 492 of 2008 on the file of the District Munsif cum Judicial Magistrate Court, Vadipatti, for partition and permanent injunction. An exparte decree was passed on 30.08.2012 in the aforesaid suit against the revision petitioner herein. Therefore, the revision petitioners herein have filed a petition in I.A. No. 120 of 2015 in O.S. No. 498 of 2008 under Section 5 of Limitation Act and Section 151 of CPC to condone the delay of 858 days in filing the petition to set aside the exparte decree, dated 30.08.2012 in O.S. No. 492 of 2008 and the same was dismissed with Costs. Against the dismissal order, dated 21.08.2015 the instant Civil Revision Petition is filed.
3. The learned counsel appearing for the revision petitioners submitted that the Court below ought to have given a reasonable opportunity to the petitioners to challenge the suit in O.S. No. 492 of 2008 on merits in the interest of justice. He further submitted that the Court below has failed to note that the first petitioner's son has committed suicide on 07.08.2012 and therefore, they could not be able to file the petition within the time. He further submitted that the Court below has failed to note that the petitioners were not aware of the disposal of the case and hence, the delay in filing the appeal may be condoned. He further submitted that the Order passed by the http://www.judis.nic.in 3 Court below is unsustainable and hence liable to be set aside. Hence, he prayed to allow the Civil Revision Petition.
4. In response and to the contrary, the learned counsel for the Respondents submitted that there is inordinate delay in filing the application and that the said delay was not explained properly. In this connection, the learned counsel referred to the application for condonation of delay and pointed out that the only reason mentioned therein is that the first petitioners's son has committed suicide. He further submitted that this is not a valid reason to condone delay of 858 days. He also referred to the order of the Trial Court in detail and pointed out that the Trial Court closely analysed the reasons mentioned by the Revision Petitioners for the inordinate delay and concluded that it does not constitute sufficient cause. According to the learned counsel for the Respondents, the said order of the Trial Court is based on judicious exercise of discretion and that it is not liable to be interfered with.
5. The records were examined and the oral submissions were considered carefully.
http://www.judis.nic.in 4
6. The petitioners have filed a petition in I.A. No. 120 of 2015 under Section 5 of Limitation Act to condone the delay of 858 days in filing exparte decree set aside petition.
7. The petitioners had stated in the petition that they have already filed O.S. No. 482 of 2008 for permanent injunction against the plaintiffs and 10 others. During the pendency of the suit, the plaintiffs have filed O.S. No. 492 of 2008. Without serving summons to these petitioners the plaintiffs have obtained exparte decree. The 9th defendant's son has also committed suicide on 07.08.2012. Therefore, they could not attend the Court on 30.08.2012. The delay may be condoned.
8. The respondents/plaintiffs had stated in their counter in O.S. No. 492 of 2008 was filed by the plaintiffs for partition. The revision petitioners have purchased the property in O.S. No. 482 of 2008 from D-1 in O.S. No. 492 of 2008. Right of D-1 has to be decided in O.S. No. 492 of 2008. Whatever right of D-1 has to be alienated by him. But, on perusing the Judgment, it seems that the rights of parties not analysed and decided on merits. Already these petitioners have filed O.S. No. 482 of 2008 for permanent injunction and pending.
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9. No doubt in Section 5 petition, each and every day delay should be explained. But, on the interest of justice, it is necessary to give one opportunity to be given to these petitioners. Delay may be condoned by Costs.
10. The Civil Revision Petition is allowed on payment of Costs and the revision petitioners are directed to pay a sum of Rs.2,000/-[Rupees Two Thousand Only] on or before 27.01.2021 to the Legal Services Authority attached to this Bench. If, the revision petitioners failed to comply with the condition, the Civil Revision Petition automatically stands dismissed.
11. Post the matter 29.01.2021, for reporting compliance.
19.01.2021
Index : Yes/ No
Internet : Yes/No
ksa
To
1) The District Munsif Cum Judicial Magistrate, Vadipatti.
2) The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 6 S.ANANTHI, J.
ksa Order made in C.R.P.(MD)No.2508 of 2015 (NPD) 19.01.2021 http://www.judis.nic.in