← Library
Madras High CourtCRP/1603/2016allowed

Ramesh v. Lakshmi

2016-06-14Honourable Mr Justice M.Duraiswamy6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 14.06.2016

CORAM:

THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(NPD).No.1603 of 2016 and C.M.P.No.8722 of 2016 Ramesh ... Petitioner Vs.

1.Lakshmi 2.Murugan 3.Ravi 4.Kumar 5.Selvam 6.Kalaiselvi 7.Kalaiarasi 8.Kasiyammal 9.Uthayakumar 10.Ramesh 11.Kalaiselvi ... Respondents (respondents 8 to 11 given up) Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the order and decreetal dated 20.04.2016 passed in I.A.No.450 of 2014 in O.S.No.83 of 2009 on the file of the Principal Subordinate Court, Tiruvannamalai.

For Petitioner : Mr.R.Neelakandan for M/s.C.Mahendran For Respondents : Mr.R.Subramanian

O R D E R

Challenging the fair and final order passed in I.A.No.450 of 2014 in O.S.No.83 of 2009 on the file of the Principal Subordinate Court, Tiruvannamalai, the 4th defendant has filed the above Civil Revision Petition.

2.The plaintiffs filed the suit in O.S.No.83 of 2009 for specific performance. Since the 4th defendant failed to appear before the trial Court, he was set exparte and an exparte decree was passed on 02.02.2013. Thereafter, the 4th defendant filed an application in I.A.No.450 of 2014 to condone the delay of 519 days in filing the petition to set aside the exparte decree dated 02.02.2013. In the affidavit filed in support of the petition, the 4th defendant has stated that he was suffering from jaundice and that he did not receive the suit summons. The plaintiffs filed their counter and disputed the averments stated in the affidavit filed in support of the petition.

3.Before the trial Court, on the side of the 4th defendant, he was examined as P.W.1 and Exs.P1 & P2 were marked and on the side of the respondents, Ex.R1 was marked. However, no oral evidence was let in by the plaintiffs.

4.The trial Court, taking into consideration the case of both parties, dismissed the application finding that the 4th defendant has not given sufficient reason for condoning the delay. In the evidence of P.W.1, the 4th defendant has stated that the signature found in the acknowledgments are not that of his wife and that somebody has signed the acknowledgments. However, in order to establish that the suit summons were not served either on him or on his wife, he has not examined any employee of the postal department. However, he has specifically stated in the evidence that the signature found in the acknowledgments are not that of his wife. That apart, the 4th defendant has also stated that he was suffering from jaundice, therefore, he was not in a position to file the application at the earliest point of time.

5.Since it is a suit for specific performance, I am of the view that in the interest of justice, the 4th defendant can be given an opportunity to contest the suit on merits. Since, the summons were not served on the 4th defendant, he was not in a position to appear before the trial Court and contest the matter.

6.In these circumstances, the fair and decreetal order passed by the trial Court are liable to be set aside. Since the delay is on a higher side, the

same can be condoned on payment of costs. Accordingly, the fair and decreetal order passed in I.A.No.450 of 2014 in O.S.No.83 of 2009 are set aside. The delay of 519 days in filing the petition to set aside the exparte decree is condoned and the application in I.A.No.450 of 2014 to set aside the exparte decree is allowed on condition the petitioner/4th defendant paying a sum of Rs.10,000/- (Rupees ten thousand only) to the respondents/ plaintiffs within a period of two weeks from the date of receipt of a copy of this order. It is made clear that the petitioner/4th defendant is at liberty to pay the said amount of Rs.10,000/- to the learned counsel appearing for the respondents/plaintiffs before this Court in the Civil Revision Petition within a stipulated time.

7.The learned counsel appearing for the respondents/plaintiffs submitted that the Order 9 Rule 13 application filed by the 4th defendant can also be allowed and the trial Court may be directed to dispose of the suit within a time frame.

8.Having regard to the submissions made by the learned counsel for the respondents/plaintiffs, the Principal Subordinate Judge, Tiruvannamalai is directed to allow the application filed by the 4th defendant under Order 9 Rule 13 of the Civil Procedure Code within three days from the date of

receipt of a copy of this order and dispose of the suit in O.S.No.83 of 2009, on merits and in accordance with law, within three months from the date of allowing the application filed under Order 9 Rule 13 of the Civil Procedure Code.

9.With these observations, the Civil Revision Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed. Index : No 14.06.2016 Internet : Yes va Note: Issue order copy on 16.06.2016.

To The Principal Subordinate Court, Tiruvannamalai.

M.DURAISWAMY,J.

va C.R.P.(NPD).No.1603 of 2016 and C.M.P.No.8722 of 2016 14.06.2016