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Madras High CourtCRP/4607/2023allowed

Sampath v. Kumaravel

2023-12-14Honourable Mrs Justice T.V.Thamilselvi4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :14.12.2023 CORAM :

THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI Civil Revision Petition No.4607 of 2023 and CMP.No.27499 of 2023 1.Sampath 2.Kanchana ... Petitioners

Versus

Kumaravel ... Respondent Civil Revision Petition filed Under Article 227 of Constitution of India, praying to set aside the fair and decretal order dated 19.06.2023 passed in I.A.No.387 of 2022 in O.S.No.12 of 2014 on the file of the Additional Sub Court, Tindivanam, Villupuram District. For Petitioners :

Mr. V.Regunathan

O R D E R

The petitioners have filed this petition to set aside the fair and decretal order dated 19.06.2023 passed in I.A.No.387 of 2022 in O.S.No.12 of 2014 on the file of the Additional Sub Court, Tindivanam, Villupuram District. 1\4

2. Heard Mr. V.Regunathan, learned counsel for the petitioners and perused the materials available on record.

3. The learned counsel for the petitioners submitted that before the trial Court the petitioners have filed an I.A.346 of 2021 under Order IX Rule 9 of CPC to restore the suit which is dismissed on 26.02.2021 along with Section 5 of the Limitation Act to condone the delay of 232 days in filing the set aside application, which was allowed on payment of cost of pay Rs.1000/- to the District Legal Service Authority, the cost has to pay on or before 22.07.2022, and the same was not communicated to the petitioner herein and not able to pay the cost, therefore the application was dismissed, the payment of cost is neither willful nor wanton but due to the health issue of the petitioners and miscommunication, the same was not considered by the learned trial Judge.

He further submitted that the suit is for recovery of possession and to set aside the sale deed dated 13.04.2005, registered as document No.310/2005 on the file of Joint Sub Registrar-2, Tindivanam, the petitioner have sufficient defence in the suit filed by them, by virtue of the ex-parte order the valuable right of the petitioners have been defeated and they have a valid defence to prove their case, hence he prays to allow this petition.

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4. On a perusal of the record, it reveals that, as a owner of the property, the plaintiffs have filed a suit for redemption of the mortgage for the recovery of possession in the year 2014 and the same was dismissed on 26.02.2021, during the period of Covid-19 pandamic. Therefore, they come forward with the application to restore the same, but due to lack of communication they were not able to pay the cost. Admittedly, the first plaintiff is aged about 60 years and they have filed a suit for redemption of mortgage and claim in the suit property. If opportunity has not given to them their valuable right to defend their case will be defeated. The learned trial Judge without considering all these aspect erroneously dismissed the application and more over the proceedings are initiated during the Covid-19 pandamic period.

5. Hence, the findings rendered by the learned trial Judge is set aside. The petitioners are directed to pay the cost of Rs.1000/- within a period of two weeks from the date of this order and on such payment the learned trial Judge is directed to take the case on file and dispose of the case as early as possible.

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T.V.THAMILSELVI, J.

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6. Accordingly, this Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.

14.12.2023 Index : Yes/No Speaking/Non Speaking order rri Note: Issue order copy by 15.12.2023 To

1. The Additional Sub Court, Tindivanam, Villupuram District.

2.The Section Officer, VR-Section, High Court of Madras.

Civil Revision Petition No.4607 of 2023 and CMP.No.27499 of 2023 4\4