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2000 DIGILAW 776 (MAD)

Lakshmi v. Amaravathi & Another

2000-08-04

V.KANAGARAJ

body2000
Judgment : 1. The first defendant in the suit in O.S.No.1 of 1996 is the petitioner in the above civil revision petition. The respondents have filed the original suit against the petitioner herein and three others praying for partition of the suit properties which are house and landed properties falling under different door and survey numbers of Tenkasi Taluk and to allot 4/6 shares from the whole of the first schedule and item No.2 of the second schedule properties. 2. It further comes to be known that the petitioner/first defendant and the other defendants to the suit have been set ex parte on 107.1997 which the petitioner came to know on 212. 1998 since in April, 1997, she had gone to Gujarat seeking job for her livelihood wherein she got employed as a labourer in a fish export company and she was not able to participate in any of the proceedings of the suit and put up a valid decree; that on coming back home on 212. 1998 and having come to be apprised of the ex parte decree dated 7. 1998, thereafter she instructed her counsel and hence further pleading that the default that had been caused in the non-prosecution of the case was neither willful, nor wanton and in the genuine circumstances pleaded therein and in the said process, a delay of 149 days in filing the petition to set aside the ex parte decree had occurred and praying to execute the said delay, had filed I.A.No.1065 of 1999 under Sec.5 of the Limitation Act and under Sec.151, C.P.C. and the same having come to be dismissed by the trial court that is the court of Subordinate Judge, Tenkasi without costs, the petitioner herein has come forward to file this revision against the fair and decretal order dated 20.12.1999 passed in I.A.No.1065 of 1999 in O.S.No.1 of 1996 by the Court to Subordinate Judge, Tenkasi seeking to set aside the same. 3. 3. In consideration of the facts and circumstances as brought forth by the petitioner in the civil revision petition and in further consideration of the fair and decretal order passed by the court below and upon hearing the learned counsel for both, what is disclosed is that it is not only the delay condonation petition, but also the written statement had been filed along with the petition to condone the delay of 149 days that had occurred in filing the petition to set aside the ex parte decree; that in spite of valid reasons having been offered on the part of the petitioner, without consideration of the same in the manner required by law, remarking that the petitioner was colluding with the fourth defendant without any basis, the court below had erroneously concluded to dismiss the petition and hence, it would be very strongly pleaded on the part of the petitioner to allow the civil revision petition setting aside the fair and decretal order passed by the court below. 4. On the part of the respondents, it would be argued by their learned counsel to the effect that due notice had been served on the petitioner and she also appeared before the court through her counsel and many proceedings have taken place in the suit. It was only on 11. 1997 when the suit was taken up for consideration on account of the absence of the petitioner and the other defendants, the matter having been set ex parte ultimately, an ex parte decree came to be passed on 22. 1997; that it was the fourth defendant who had been set ex parte on 7. 1998 and hence the petition could not be allowed. 5. It would further be argued on the part of the fourth defendant that an application had been filed to condone the delay of 35 days in filing the petition to set aside the ex parte decree and the same having been admitted in the order made in I.A.No.436 of 1997, dated 19. 1997 and again for not filing the written statement, the fourth defendant having been set ex parte by an order dated 14. 1998 ultimately an ex parte decree had itself been passed on 7. 1998 and hence, the application filed on the part of the petitioner/first defendant to the effect that she had been set ex parte by a decree dated 7. 1998 ultimately an ex parte decree had itself been passed on 7. 1998 and hence, the application filed on the part of the petitioner/first defendant to the effect that she had been set ex parte by a decree dated 7. 1998 becomes liable only to be dismissed and would pray to dismiss the same accordingly. 6. It may be true that the petitioner instead of seeking to condone the delay from and on an ex parte decree passed by the trial court on 22. 1997, had under mistaken impression that she had been set ex parte and an ex parte decree had been passed on 7. 1998 which was the date on which the fourth defendant had been set ex parte and on such mistaken impression the petitioner, an uneducated lady had come forward to condone the delay of 149 days calculating the same from 7. 1998 in the said application in I.A.No.1065 of 1999 which having been dismissed, had come before this Court seeking redressal by means of a revision. 7. It is not whether the innocent petitioner has rightly come forward to offer the exact date on which she had been set ex parte by the lower court, but the relevancy lies in whether the petitioner should be allowed to participate in the further proceedings of the suit wherein it is understood that the suit had been filed by the other side for partition and separate possession. When such of the rights of parties regarding the valuable properties are involved, minor inconsistencies that are susceptible to occur in such applications filed by innocent parties like the petitioner, could not be taken as a serious flaw or blunder so as to dismiss their application in toto thus denying the very opportunity of the petitioner to be heard by the court in deciding the main issue. 8. Therefore, the proper remedy, lies in giving one more opportunity for the petitioner to correct the mistake that has crept in the petition and while allowing the petitioner to do so, no grave prejudice would be caused to the respondents since none of their valuable rights are taken away. Hence, this Court in the circumstances of the case, honestly feels that the petitioner shall be given an opportunity to correct the mistake in quoting the correct date on which she had been set ex parte by the lower court. 9. Hence, this Court in the circumstances of the case, honestly feels that the petitioner shall be given an opportunity to correct the mistake in quoting the correct date on which she had been set ex parte by the lower court. 9. After all, the petitioner has pleaded that seeking to earn for her livelihood, she had gone to Gujarat to work as a collie which fact has not at all been rebutted by the other side and during her absence in the State itself, the ex parte decree had been passed and she had no reason to know exactly as to on what date she had been set ex parte. The affidavit says that only on her coming back home and getting everything verified through her counsel, she was given to understand that an ex parte decree had been passed against her on 7. 1998. Therefore, since the petitioner is a dependent on others to know such proceedings of the court and the exact dates of order, mistake of such nature are susceptible to occur and because of such mistakes if she is denied of her valuable right to contest the suit, this Court is of the firm view that ends of justice would not be m et with and hence, in the interest of justice, the petitioner has to be allowed to have one more chance of amending the petition suitably and filing the same with proper date on which the ex parte decree had been passed against her. In result, .(i) the fair and decretal order dated 20.12.1999 passed in I.A.No.1065 of 1999 in O.S.No.1 of 1996 by the Court of Subordinate Judge, Tenkasi, is hereby set aside; .(ii) thecase is remanded to the trial court; (iii) the petitioner shall amend her petition or file a fresh application seeking condonation of the delay calculating the same from the correct date on which she had been set ex parte, that is on 22. 1997, (as it comes to be seen from the order of the lower court,), along with the petition to set aside the ex parte decree within 30 days from the date of receipt of a copy of this order by the trial court or by the petitioner whichever is earlier. 1997, (as it comes to be seen from the order of the lower court,), along with the petition to set aside the ex parte decree within 30 days from the date of receipt of a copy of this order by the trial court or by the petitioner whichever is earlier. .(iv) the Court of Subordinate Judge, Tenkasi, on receipt of such an application that will be filed by the petitioner in compliance of paragraph No.iii above, shall allow the same condoning the delay caused by the petitioner in filing the application to set aside the very suit with due opportunity for the petitioner to be heard so as to decide the suit on merit and in accordance with law; and .(v) since the suit is a long pending one, it is further ordered that the trial court shall expedite the trial proceedings taking up the matter out of turn, and complete the same in six months from the date of passing of the order in the application, as directed above and deliver judgment in the suit. The above civil revision petition is ordered accordingly. No costs. Consequently, C.M.P.No.7156 of 2000 is closed.