K.Balasubramaniam v. A.Ramadas

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR C.R.P. N.P.D.No.3801 of 2017 and C.M.P.No.17682 of 2017 K.Balasubramaniam

...Petitioner

versus

1. A.Ramadas

2. R.Bakkiyalakshmi

...Respondents

PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the order of the District Munsif Court, Tiruppur in E.A.No.14 of 2015 in E.P.No.18 of 2014 in R.C.O.P.No.6 of 2001 dated 19.06.2017 and to pass further orders.

For Petitioner : Mr.M.Easan For Respondents : Mr.A.K.Kumarasamy, Senior Counsel for Mr.S.Kaithamalaikumaran

O R D E R

The petitioner has filed an application, namely, E.A No.14 of 2015 in E.P.No.18 of 2014 in R.C.O.P.No.6 of 2001 under Order 21 Rule 106 of Civil Procedure Code before the court below to set aside the exparte order dated 12.06.2015 passed against the petitioner for non filing of the

counter affidavit. Further, the court below, on 19.06.2017 held that the petition to set aside the exparte order should be filed within 30 days from the date of order and that the petition was filed only on 27.07.2015, which is beyond the period of 30 days and thereby held that the petition was not maintainable.

2. The learned counsel for the petitioner submitted that the petitioner has already filed an application to condone the delay to set aside the exparte order and the same is pending, whereas the court below, has not taken into consideration of the said fact. He would also reply upon the order passed by this Court in C.R.P.(NPD) No.231 of 2011 dated 12.08.2011 reported in 2011 (6) CTC 268 [N.Rajendran V. Shriram Chits Tamilnadu Pvt., Ltd., rep. By its Branch Manager / Foreman No.23/3, Nethaji Road, Thiruvarur] at Paragraph No.43, wherein the same is extracted below:- "43. Therefore, I am of the view that the order of the Court below, refusing to entertain the Application on the ground that it was filed beyond 30 days and that there was no power to entertain the same, is not in accordance with law. Hence the impugned order of the court below is set aside and the Court below is directed to number the application and take it up for hearing."

3. Mr.A.K.Kumarasamy, learned senior counsel for the respondents would submit that the petitioner has not placed any materials to show that condone delay application has been filed along with the said application, therefore, apart from the reasons stated by the court below, the said application is liable to be rejected on this ground also.

In the light of the said decision mentioned supra by the learned counsel for the petitioner, this Court has no hesitation to set aside the order passed by the court below in E.A.No.14 of 2015 in E.P.No.18 of 2014 in R.C.O.P.No.6 of 2001 dated 19.06.2017 and remand back the matter to the court below and the trial court shall take note of the objection raised by the respondents in the present Civil Revision Petition and decide the E.A. on merits and in accordance with law, after hearing both the parties. In fine, the Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed. No costs. 07.12.2017 Index:Yes/No Internet: yes / No ssd

D.KRISHNAKUMAR,J., ssd To The District Munsif Court, Tiruppur C.R.P.No.3801 of 2017 and C.M.P.No.17682 of 2017 07.12.2017