Mr.Raghu,S/O.Late Mr.Raghavan v. Mr.Tamilselvan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.03.2018
CORAM
THE HON'BLE MR. JUSTICE D. KRISHNAKUMAR CRP.(NPD).No.1069 of 2016 Raghu ..Petitioner Vs.
1.Tamilselvan 2.Mangalakshmi ..Respondents PRAYER: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure to set aside the dismissal order dated 02.03.2016 passed in I.A.No.14953 of 2015 in O.S.No.2950 of 2012 by the learned XIV Assistant Judge, City Civil Court at Chennai. For petitioner : Mr.P.Balamurugan For Respondents : Mr.Ashok Menon * * * * *
O R D E R
This Civil Revision Petition has been filed to set aside the dismissal order dated 02.03.2016 passed in I.A.No.14953 of 2015 in O.S.No.2950 of 2012 by the learned XIV Assistant Judge, City Civil Court at Chennai.
2.According to the revision petitioner, the respondents have filed a suit in O.S.No.2950 of 2012 for declaration against the petitioner herein. The petitioner was set exparte and the set exparte decree was passed on 08.07.2014. Therefore, the petitioner has filed an Interlocutory Application in I.A.No.14953 of 2015 in O.S.No.2950 of 2012 to condone the delay of 362 days incurred in filing to set aside the Judgment and Decree dated 08.07.2014 passed in the aforesaid suit. The said application was dismissed by the Court below and therefore, the revision petitioner filed this present Civil Revision petition before this Court.
3.The learned counsel for the petitioner submitted that in the mean time the respondents have filed the Execution Petition in E.P.No.1883 of 2015 in O.S.No.2950 of 2012. The petitioner came to know about the exparte decree, the petitioner immediately filed an application to set aside the exparte decree passed by the Court below. 4.The learned counsel for the respondents submitted that the Court below has rightly dismissed the said application and there is no warrant to interfere with the order passed by the Court below and the Civil Revision Petition is liable to be dismissed. 5.By considering the above facts and submissions of the learned
counsel for the parties, after came to know about the exparte decree, the petitioner has filed an I.A.No.14953 of 2015 to condone the delay of 362 days to set aside the exparte decree in the aforesaid suit filed by the respondents for declaration. The petitioner has stated the reasons in the affidavit that the daughter and wife of the petitioner were suffering with Typhoid and he could not meet his counsel and also the counsel expressed his inability to conduct the above proceedings of the suit and the counsel has returned the case bundle to the petitioner and thereafter, with consent for change of vakalat for engaging the present counsel. Therefore, being satisfied with the reasons stated in the affidavit filed in support of the petition and by providing an opportunity to the petitioner to adjudicate the case on merits.
6.In the light of the decision of the Hon'ble Supreme Court of India, in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649, the Hon'ble Supreme Court has observed that there should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 7.Taking into consideration of the nature of the length of the
delay and providing an opportunity to the petitioner and in the light of the aforesaid decision of the Hon'ble Supreme Court, this Court is inclined to interfere with the order passed by the Appellate Court and the same is liable to be set aside.
8.In fine, the impugned order passed by the learned XIV Assistant Judge, City Civil Court at Chennai in I.A.No.14953 of 2015 in O.S.No.2950 of 2012 is set aside and the Civil Revision Petition is allowed, subject to payment of cost of Rs.5,000/- (Rupees Five Thousand only) payable by the petitioner to the respondents, within a period of two weeks from the date of receipt of a copy of this order, failing which the Civil Revision Petition stands dismissed. 07.03.2018 Speaking/Non-speaking order Index :Yes/No Internet :Yes/No ah To The learned XIV Assistant Judge, City Civil Court, Chennai.
D.KRISHNAKUMAR. J, ah CRP.(NPD).No.1069 of 2016 07.03.2018