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2010 DIGILAW 3125 (MAD)

M. Raji Gounder K. Chalapathy Babu v. .

2010-07-28

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 05.01.2010 passed in I.A.Nos.80 and 81 of 2006 in O.S.No.6 of 2003 by the learned District Munsif Court at Tirupattur, Vellore District, these civil revision petitions are focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these two revisions would run thus: (i) The respondent/plaintiff filed the suit seeking the following relief: (ii) Ex parte decree was passed as against the revision petitioners/defendants. Subsequently, E.P. was filed by way of enforcing the ex parte decree. On receipt of the E.P. notice on 10.09.2004, the revision petitioners/defendants entered appearance in the E.P. However, only on 31.01.2006, the application under Section 5 of the Limitation Act was filed, to get the delay of 1062 days condoned in filing the application under Order 9 Rule 13 of CPC so as to get the ex parte decree dated 04.02.2003 set aside. After hearing both sides, the lower Court dismissed both the applications. Being aggrieved by and dissatisfied with the same, these two revisions have been filed on various grounds. 4. The learned counsel for the revision petitioners, placing reliance on the grounds of revision would submit his arguments, the gist and kernel of them would run thus: The suit summons was not served on the revision petitioners/defendants. On receipt of E.P. notice, they engaged an Advocate and he entered appearance in the E.P. However, subsequently, the application under Section 5 of the Limitation Act could not be filed in time because both the petitioners being husband and wife have fallen ill and they could not contact their Advocate to get the application filed under Section 5 of the Limitation Act. Accordingly, he prayed for condoning the delay in filing such an application under Order 9 Rule 13 of CPC. However, the lower Court took a draconian view of the matter and simply dismissed it by pointing out that even after entering appearance in the E.P. there was delay. Accordingly, he prayed for condoning the delay in filing such an application under Order 9 Rule 13 of CPC. However, the lower Court took a draconian view of the matter and simply dismissed it by pointing out that even after entering appearance in the E.P. there was delay. The learned counsel for the petitioners would echo the cri do coeur of the petitioners that they are poor people reeling under penurious and impecunious circumstances and that the defendant is a money lender who was in the habit of giving small loans to the revision petitioners herein and taking undue advantage of the same, fabricating certain documents and trying to fasten the revision petitioners with undue liabilities. Accordingly, he prays for setting aside the orders of the Courts below and to allow the I.As. concerned. 5. Per contra, the learned counsel for the respondent/plaintiff would advance his argument which could tersely and briefly be set out thus: The lower Court correctly appreciated the facts and figures and held that there was deliberate laches on the part of the revision petitioners warranting no interference in these revisions. 6. The point for consideration is as to whether the lower Court was justified in dismissing both the applications? and whether there is any perversity or illegality in filing such applications? 7. At the outset itself, I would like to point out that the lower Court was not justified in numbering the application under Order 9 Rule 13 of CPC before allowing the application under Section 5 of the Limitation Act. Be that as it may, regarding merit is concerned, it is clear that even after entering appearance in the E.P. the defendants failed to file necessary application for a pretty long time and that alone loomed large in the mind of the lower Court and hence dismissed the applications. The learned counsel for the revision petitioners would highlight the pathetic situation in which the petitioners have been pushed into. According to the learned counsel for the petitioners, his clients are poor people having the suit property only as their property and they are having no other property and the defendant fabricated false documents relating to such property, even though they are actually in possession of it. These are relating to the merit of the O.S. itself with which I do not want to give any opinion at this stage. These are relating to the merit of the O.S. itself with which I do not want to give any opinion at this stage. However, one fact is clear from the representation of the petitioners that they are poor people and they are not wordily wise to understand things and because of their ill health also they could not take proper steps to file necessary application without any delay. Since this is a matter relating to immovable property and in the affidavit accompanying the stay petition before this Court, the revision petitioners have alleged that the suit summons was not served on the defendants, I am of the view that one more opportunity has to be given to the revision petitioners to contest the matter. However, it should be on payment of cost by the petitioners in favour of the respondent. 8. In the result, the revision petitions are allowed setting aside the orders of both the Courts below and consequently by allowing both the applications subject to payment of cost of Rs.5,000/- (Rupees five thousand only) in total payable by the revision petitioners on or before 31st August 2010. If there is any non compliance on the part of the revision petitioners, this order will not enure to their benefit. The written statement shall be filed by the revision petitioners immediately in the first week of September 2010, whereupon, the suit itself shall be disposed of within a period of three months thereafter. Accordingly, these civil revision petitions are disposed of. No costs. Consequently, connected miscellaneous petition is closed.