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Madras High CourtCRP/573/2016dismissed

U.Nagaraj v. Nagamal

2016-02-26Honourable Dr. Justice S. Vimala6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.02.2016

CORAM

THE HONOURABLE Dr.JUSTICE S.VIMALA CRP (NPD) No.573 of 2016 and C.M.P.No.2942 of 2016 1.U.Nagaraj S/o.Uthiramoorthy No.7, Palaniandi Veethi, Nineth Ward, Kannampalayam, Sulur (Via), Coimbatore Dist.

2.U.Ramasamy S/o.Uthiramoorthy No.29/1, Karuvalur Amman Veethi, Tenth Ward, Kannampalayam, Sulur (Via), Coimbatore Dist.

3.Poongodi W/o.Radhakrishnan No.2/39, Mandapam Veethi Kalangal Post, Sulur (Via), Coimbatore Dist.

4.Saraswathhi W/o.Manickam No.71/1, O.S.P.Nagar, Pollachi Taluk, Coimbatore Dist.

.. Petitioners Vs Nagamal W/o.Mariappan, No.22, Anna Nagar, Trichy Road, Ramanathapuram, Coimbatore - 641 045.

.. Respondent

Prayer:- Civil Revision Petition filed under Section 115 of C.P.C., praying to set aside the fair and decretal order dated 16.11.2015 made in I.A.No.32 of 2015 in O.S.No.102 of 2013 on the file of the Hon'ble IV Additional District & Sessions Judge, Coimbatore. For Petitioners :Mr.B.R.Shankaraingam

ORDER

Challenging the fair and decretal order dated 16.11.2015, passed in I.A.No.32 of 2015 in O.S.No.102 of 2013 on the file of the IV Additional District and Sessions Court, Coimbatore, this Civil Revision Petition has been filed.

2. Originally suit for partition in O.S.No.519 of 2008 was filed by the respondent herein as plaintiff against the defendants 1 to 3 (petitioners 1 to 3 herein) on the file of District Court, Coimbatore and the said suit was dismissed on 30.04.2010 by the learned Additional District Judge (Fast Track Court No.II) Coimbatore for non-joinder of the fourth defendant and with a direction to file a fresh suit after including all the necessary and proper parties.

2.1 Accordingly, the respondent herein/plaintiff has filed another suit in O.S.No.102 of 2013 for the same cause of action, adding the fourth defendant, who is the fourth petitioner herein. In

the said suit, the preliminary exparte decree was passed on 25.10.2013 in view of the non-filing of the written statement by the revision petitioners herein.

3. Subsequently, the revision petitioners herein have filed an application under Section 5 of the Limitation Act, to condone the delay of 334 days in filing the petition to set aside the exparte preliminary decree dated 25.10.2013 in I.A.No.32 of 2014 in O.S.No.102 of 2013 on the file of IV Additional District and Sessions Court, Coimbatore. The said application to condone the delay was dismissed on 16.11.2015.

3.1. Perusal of the order passed by the Court below would reveal that the dismissal of the petition was on the ground that the petitioners have not established sufficient cause for condoning the delay.

4. In the suit for partition, the respondent/plaintiff has filed the final decree application in I.A.No.482 of 2014 on 22.7.2014. The revision petitioners herein /defendants have entered appearance and after filing of their counter, they have not chosen to file an application to set aside the exparte preliminary decree.

5. The revision petitioner herein did not file an application to set aside the exparte preliminary decree before the filing of the final decree application. Atleast, after the filing of the application for final decree, immediately steps should have been taken by the revision petitioners to get the exparte preliminary decree set aside, without much delay. That has not been done. Had the steps been taken immediately, the delay would not have been so much. Admittedly, the said application to set aside the exparte preliminary decree has been filed along with the application to condone the delay of 334 days, which is at a belated stage. The Court below has given a specific finding that the application to condone the delay has been filed without any reason to condone the delay and that the provision has been used as a tool to drag on the proceedings. There is no convincing explanation on the side of the revision petitioners as to how such a finding is incorrect.

6. Under the said circumstances, the Court below has chosen to dismiss the petition with a finding that throughout the proceedings the conduct of the revision petitioners exhibit procrastinating behaviour in prosecuting the case. 6.1. For the negligent attitude of the revision petitioners, the other side cannot be put under detriment.

7. Hence this revision petition has no merits and accordingly it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

26.02.2016 ds To The IV Additional District and Sessions Court Coimbatore.

S.VIMALA ,J., ds CRP (NPD) No.573 of 2016 26.02.2016