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Madras High CourtCRP(MD)/2234/2018allowed

M.Thulasimani v. V.Palanisamy

2023-11-08Honourable Mr. Justice Battu Devanand8 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.11.2023

CORAM:

THE HONOURABLE MR.JUSTICE BATTU DEVANAND C.R.P(MD) No.2234 of 2018 and C.M.P. (MD) No.10064 of 2018 M. Thulasimani

...Petitioner

Vs.

V. Palanisamy

...Respondent

PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the against the fair and decreetal order dated 12.02.2018 passed in I.A.No.81 of 2016 in O.S.No. 63 of 2013 on the file of the Additional District Judge, (Fast Track Court), Palani and allow this Civil Revision Petition. For Petitioner : Mr. S. Poorna Chandran For Respondent : Mr.M. Saravanan 1/8

O R D E R

This Civil Revision Petition is filed against the order dated 12.02.2018 passed in I.A.No.81 of 2016 in O.S.No. 63 of 2013 on the file of the Additional District Judge, (Fast Track Court), Palani.

2. The Revision Petitioner is the defendant and the respondent is the plaintiff in the suit in O.S.No.63 of 2013 filed for specific performance. The said suit was decreed ex-parte on 05.12.2014. The petitioner filed an interlocutory Application in I.A.No.81 of 2016 under Section 5 of the Limitation Act seeking to condone the delay of 434 days to file a petition to set aside the ex-parte decree, dated 05.12.2014. The said application was dismissed by the Trial Court holding that the petitioner has failed to prove that there was a reasonable cause for the delay of each and every day, by order, dated 12.04.2018. Aggrieved by the same, the present Civil Revision Petition is filed.

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3. The learned counsel for the petitioner submits that the petitioner is senior citizen suffering from many bodily ailments and to prove the same, she had filed eight (8) medical documents which were marked as Exs.P1 to P8. The learned counsel further submits that the learned trial Judge was earlier satisfied with the sick condition of the petitioner, appointed an Advocate Commissioner to examine the petitioner as a witness at Coimbatore in I.A.No.81 of 2016. But without considering the same reason of sickness and body ailments of the petitioner, dismissed the Interlocutory Application without any reason. The learned counsel contends that to allow the Civil Revision Petition by setting aside the order of the trial Court by considering the age and health condition of the petitioner.

4. The learned counsel appearing for the respondent submits that the trial Court considering all aspects and the oral and documentary evidence placed before it, dismissed the Interlocutory 3/8

Application with reasoned order and as such interference of this Court is not warranted in the reasoned order passed by the trial Court and sought to dismiss the Civil Revision Petition.

5. Having heard the submissions of the respective counsels and upon careful examination of the material available on record, it appears that the petitioner was examined as P.W.1 in I.A.No.81 of 2016 and Exs.P1 to P8 were marked. No witnesses were examined and no documents were marked on the side of the respondent. As per the petitioner's counsel, the petitioner was examined as P.W.1 in the Interlocutory Application by the Advocate Commissioner, in view of the health condition of the petitioner. It itself shows that the petitioner is not in a position to attend the Court proceedings at the relevant point of time. The medical documents which were marked as Exs.P1 to P8 also established that the petitioner had taken treatment for her ill-health. As such the observation of the Court below that the petitioner has taken treatment from 02.08.2014 to 03.09.2014 and the ex-parte decree 4/8

was passed on 05.12.2014 and as such the petitioner has failed to prove that there was reasonable cause for the delay is appears to be not reasonable.

6. Admittedly, the petitioner is a senior citizen and suffering with some ailments. Considering these facts and circumstances of the case, this Court is of the considered opinion that the delay of 434 days in filing of the petition to set aside the ex-parte decree has to be considered on certain conditions. This Court is of the opinion that by allowing the delay condonation petition no prejudice will be caused to the respondent and both parties would get an opportunity for fair trial in the suit proceedings.

7. For the reasons stated above, the order dated 12.02.2018 passed in I.A.No.81 of 2016 in O.S.No.63 of 2013 on the file of the Additional District Judge (Fast Track Court) Palani, is hereby set aside.

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8. Accordingly, this Civil Revision Petition is allowed on condition of payment of cost of Rs.2,000/- (Rupees Two Thousand only) payable by the petitioner to the respondent within a period of two weeks from the date of receipt of a copy of this order and file a memo of payment of cost in the Court below within one week thereafter.

9. No costs.

10. Consequently, connected Civil Miscellaneous Petition is closed.

08.11.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No RM 6/8

To The Additional District Judge, Fast Track Court, Palani.

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BATTU DEVANAND, J.

RM C.R.P(MD) No.2234 of 2018 08.11.2023 8/8