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2008 DIGILAW 3021 (MAD)

Natarajan v. Loganathan

2008-08-20

S.TAMILVANAN

body2008
Judgment :- This Civil Revision has been preferred against the order, dated 22.06.2007 made in I.A.No.900 of 2006 in O.S.No.91 of 2005 on the file of the learned District Munsif, Gobichettipalayam. 2. It is an admitted fact that the respondent herein as plaintiff filed the suit in O.S.No.91 of 2005, under Order VII Rule 1 CPC, seeking permanent injunction against the revision petitioner / defendant, restraining the revision petitioner and his men or agents from interfering with the peaceful possession and enjoyment of the schedule mentioned properties. However, due to the non-appearance of the revision petitioner / defendant, the suit was decreed exparte by the court below. Aggrieved by which, the revision petitioner herein had filed an application under Order IX Rule 13 CPC to set aside the exparte decree, along with the petition to condone the delay of 327 days in filing the aforesaid application. By the impugned order, dated 22.06.2007, the learned District Munsif, Gobichettipalayem, dismissed the application filed by the revision petitioner herein. Aggrieved by which, this Civil Revision Petition has been preferred by the petitioner / defendant. 3. Mr. A.V. Arun, learned counsel appearing for the revision petitioner submitted that the revision petitioner / tenant was suffering from jaundice and was taking treatment and that is why, he could not appear before the Court below and that there was a delay of 327 days in filing the petition under Order IX Rule 13 CPC and hence, he filed a petition in I.A.No.900 of 2006, under Section 5 of the Limitation Act to condone the delay. It is seen from the impugned order that the revision petitioner / defendant has not produced any supporting document. 4. Mr. S. Baskaran, learned counsel appearing for the respondent would submit that the revision petitioner, as defendant has received summons from the court below and appeared before the court, subsequently, remained absent and that there is no bonafide reason to allow the petition to condone the delay. However, it is not in dispute that the respondent / plaintiff has claimed title to the schedule mentioned first and second item of properties. However, it is not in dispute that the respondent / plaintiff has claimed title to the schedule mentioned first and second item of properties. According to the respondent / plaintiff, he acquired title to the property, by way of release deed, executed by his father, Nachivannan, whereas, as per the affidavit filed, the revision petitioner has stated that the property belongs to his father, one Nachi Pandaram, who acquired the property, by way of sale deeds, dated 011. 1954 and 20.01.1966. He has also denied the title claimed by the respondent / plaintiff to the suit property. 5. In such circumstances, I am of the view, to meet the ends of justice, that the suit should be disposed on merits, since there are triable issues involved in the suit, however, for the delay caused in filing the petition under Section 5 of the Limitation Act and to set aside the exparte decree, the respondent / plaintiff is no way responsible and therefore the revision petition is to be allowed on reasonable condition, awarding costs to the respondent / plaintiff. Accordingly, the conditional order is passed and the revision petitioner / defendant is directed to pay a sum of Rs.2,000/-towards costs to the respondent in the revision petition on or before 25.08.2008, failing which the petition shall stand dismissed. 6. However, after passing of this order, learned counsel appearing for the revision petitioner / defendant paid the amount, as per the conditional order immediately to the respondent / plaintiff, for which, the learned counsel appearing for the respondent / plaintiff has made an endorsement to that effect in the case bundle. 7. On the aforesaid facts and circumstances, the court below is directed to restore the application filed under Order IX Rule 13 CPC and dispose the suit, according to law on merits on or before 312. 2008. Both the parties are directed to appear before the Court below on 08.09.2008. 8. With the above direction, this Civil Revision Petition is allowed and the impugned order is set aside. Consequently, connected miscellaneous petition is closed. No costs.