Madras High CourtCRP(MD)/2320/2019allowed

Latha Eswari v. Mohan

2020-03-20Honourable Mr Justice P. Velmurugan3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.03.2020

CORAM:

THE HONOURABLE MR.JUSTICE P.VELMURUGAN and CMP(MD)No.12223 of 2019 Latha Eswari .. Petitioner/Petitioner/Defendant Vs.

Mohan ... Respondent/Respondent/Plaintiff Civil Revision Petition filed under Section 115 CPC to set aside the fair and decreetal order in I.A.No.124 of 2019 in O.S.No.104 of 2018 dated 08.11.2019 on the file of the file of the Additional District Judge/Fast Track Court, Kumbakonam and allow this Civil Revision Petition with costs.

For Petitioner : Mr.R.Rajaraman M/s.C.Kayalvizhi For Respondent : Mr.K.M.Karunakaran

ORDER

The respondent/plaintiff has filed a suit in O.S.No.104 of 2018 on the file of the Additional District Judge/Fast Track Court, Kumbakonam for the relief of specific performance against the petitioner herein. In the said suit, the petitioner/defendant did not file written statement within the reasonable time. Therefore, the trial Court passed an ex parte decree on 21.12.2018. Thereafter, the respondent/plaintiff filed an execution petition before the trial Court. After service of notice in the execution proceedings, the petitioner/defendant filed an application in I.A.No.124 of 2019 to condone the delay of 197 days in filing a petition to set aside the ex parte decree passed against her. That petition was dismissed. Challenging the said order passed by the trial Court, the petitioner/defendant is before this Court.

2.The learned counsel for the petitioner would submit that in order to render substantial justice, the delay has to be condoned. 3.The learned counsel for the respondent would submit that the petitioner/defendant has not filed the written statement in time and after filing execution petition and at the stage of draft sale deed, only to protract the execution proceedings, she filed the application. The trial Court has rightly dismissed the petition and there is no need to interfere with the same.

4.Heard the learned counsel on either side and perused the 1/3

entire materials available on record.

5.Admittedly, the respondent/plaintiff filed the suit in O.S.No.104 of 2018, wherein the petitioner herein has been arrayed as sole defendant. Since the petitioner/defendant has not filed written statement in time, an ex parte decree was passed on 21.12.2018 and subsequently after filing the execution petition, the petitioner filed two applications. One is to set aside the ex parte decree and the another one is to condone the delay of 197 days in filing the petition to set aside the ex parte decree.

Though the trial Court has mainly contended that written statement has not been filed and the reasons stated in the affidavit are not satisfied, a perusal of the records would show that the petitioner/defendant stated that there is a dispute regarding the consideration and there was also a settlement talk between the parties and due to that she has not filed the petition to set aside the ex parte decree in time. 6.As stated by the learned counsel for the petitioner, substantial justice is required since there is no long delay. However, the suit is filed for specific performance. The petitioner/defendant also appeared through her counsel, but she has not filed the written statement in time. Therefore, ex parte decree was passed.

Since she has not filed the petition to set aside the ex parte decree within 30 days, she filed a petition to condone the delay of 197 days in filing the petition to set aside the ex parte decree. So far as the delay is concerned, the Court can take a lenient view to give opportunity to both the parties and to get judgment on merit. Therefore, in order to advance substantial justice, this Court is inclined to allow the petition. However, the petitioner/defendant has to compensate the respondent/plaintiff for the inconvenience caused to him. Under these circumstances, this Civil Revision Petition is allowed on condition that the petitioner/defendant shall pay a sum of Rs.50,000/- (Rupees fifty thousand only) to the respondent/plaintiff on or before 09.04.

2020, failing which, this Civil Revision Petition shall stand dismissed automatically without any further reference to this Court. No costs. Consequently, CMP(MD)No.12223 of 2019 is closed. List the matter on 15.04.2020 for reporting compliance.

mj To 1)The Additional District Judge/Fast Track Court, Kumbakonam 2)The Section officer, Judicial Section, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.R.RAJARAMAN, Advocate ( SR-12731[F] dated 20/03/2020 ) 20.03.2020 KK/11.05.2020/ 3P- 4C 3/3