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Madras High CourtCRP/43/2016dismissed

Baskaran v. Sathyanarayanan

2016-01-08Honourable Mr Justice M.Duraiswamy4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.01.2016

CORAM

THE HONOURABLE THIRU JUSTICE M. DURAISWAMY C.R.P.(NPD)No.43 of 2016 & C.M.P.No.246 of 2016 Baskaran ... Petitioner v.

Sathyanarayanan ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order dated 03.09.2015 passed in I.A.No.119 of 2014 in O.S.No.117 of 2006 on the file of learned Principal District Munsif, Kancheepuram.

For Petitioner : Mr.S.V.Karathikeyan

O R D E R

Challenging the fair and final order passed in I.A.No.119 of 2014 in O.S.No.117 of 2006 on the file of Principal District Munsif Court Kancheepuram, the 1st defendant has filed the above Civil Revision Petition.

2. The plaintiff filed the suit in O.S.No.117 of 2006 for partition. Subsequently, the 1st defendant remained absent and therefore, the Trial Court passed an ex-parte preliminary decree on 26.06.2006. Thereafter, the 1st defendant filed an application in I.A.No.119 of 2014 to condone the delay of 2626 days in filing the application to set aside the ex-parte preliminary decree.

3. In the affidavit filed in support of the application, the 1st defendant has stated that he was not served with any summons from the court, therefore, he could not appear before the Trial Court.

4. The plaintiff filed his counter disputing the averments stated in the affidavit filed in support of the application.

5. The Trial Court, taking into consideration the case of both the parities, dismissed the application finding that the 1st defendant was properly served and in fact he had refused to receive the summons, therefore, he was set ex-parte and an ex-parte preliminary decree was passed. That apart, the dispute is only between the brothers and sister. That being the case, the case of the 1st defendant that he came to know about the passing of ex-parte preliminary decree only when he received the notice in the final decree application in I.A.No.613 of 2013 cannot be accepted.

6. When the Trial Court on a perusal of the entire records and suit notice papers came to the conclusion that the 1st defendant was properly served, this court cannot take a different view to condone the delay. In the absence of any acceptable evidence given by the 1st defendant for condoning the inordinate delay of 2626 days, the Trial Court has rightly dismissed the application.

7. In these circumstances, I do not find any error or irregularity in the order passed by the Trial Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

Index : Yes/No 08.01.2016 Rj To The Principal District Munsif, Kancheepuram.

M. DURAISWAMY,J., Rj C.R.P.(NPD)No.43 of 2016 & C.M.P.No.246 of 2016 08.01.2016