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2012 DIGILAW 2650 (MAD)

Nagamalai v. P. Selvaraj

2012-06-26

G.RAJASURIA

body2012
Judgment :- 1. Heard the learned counsel for the petitioner. 2. Animadverting upon the order dated 16.09.2011 passed by the learned Principal District Munsif, Tiruchengode in I.A.No.266 of 2009 in O.S.No.33 of 2005, this civil revision petition has been focussed. 3. A summation and summarisation of the germane facts, in a few broad strokes, could be encapsulated thus: (i) The revision petitioner/plaintiff filed the suit citing the defendants as representatives of Arunthathiar Street, Chinnagoundampalayam, Alampalayam Post, Pallipalayam Village, Tiruchengode Taluk, Namakkal District and sought the following reliefs: To pass a judgment and decree in favour of the plaintiffs and as against the defendants a decree for permanent injunction interdicting and restraining the defendants, their men, servants and the entire followers and residents living in Arunthathiar Street, Chinnagoundapalayam, Pallipalayam Village from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit property and in particular from in any way trespassing and encroaching any part of the suit property. To permit the plaintiffs to sue the entire residents and inhabit of Arunthathiar Street, Chinnagoundampalayam, Pallipalayam Village in a representative capacity through the defendants and for costs of the suit. (extracted as such) (ii) The defendants were set exparte. Whereupon, exparte decree was passed. (iii) Subsequently, I.A was filed to get the delay of 305 days condoned in filing the application under Order 9 Rule 13 of CPC. After hearing both sides, the said application was allowed condoning the delay subject to payment of cost of Rs.1,000/- payable by the defendants to the plaintiff. (iv) Being aggrieved by and dissatisfied with the same, this revision has been focused on various grounds by the plaintiff. 4. The learned counsel for the revision petitioner/plaintiff would echo the cri de coeur of his client to the effect that there was enormous delay. Even though Mahudeswaran/D2 died, subsequently, in the E.P owing to oversight the other persons were not added and that it does not mean that the defendants are having the right to get the delay condoned. There should be valid reason for condoning the delay, but in this case, the reasons furnished in the affidavit accompanying the petition to get the delay condoned were far from satisfactory. Accordingly, he would pray for setting aside the order passed by the court below by allowing this revision. 5. There should be valid reason for condoning the delay, but in this case, the reasons furnished in the affidavit accompanying the petition to get the delay condoned were far from satisfactory. Accordingly, he would pray for setting aside the order passed by the court below by allowing this revision. 5. A perusal of the typed set of papers would reveal that as on the date of setting the defendants ex parte, their Advocate was present. Selvaraj/D1 who swore the affidavit accompanying the petition to get the delay condoned would aver that he was suffering from asthmatic complaint and T.B and also he could not move about and look after the matter. The lower court in its elaborate order dealt with the facts and held that an opportunity should be given for the defendants to contest the matter. 6. It is a trite proposition of law that once the lower court exercised its discretion to condone the delay, normally the High Court will not interfere unless there is any perversity or illegality in the order passed. 7. A perusal of the plaint and the written statement would disclose that there is a dispute relating to a piece of land. The defendants would claim that it is the Arunthathiyar's Mayanam poramboke and that they have been using it for over two centuries. Whereas the plaintiffs would claim that it is their exclusive property. In such circumstances, the court thought fit to give an opportunity to the defendants to contest the matter relating to which, no interference is warranted. In the event, of Order 9 Rule 13 application being allowed and the exparte decree set aside, the court shall do well to see that the suit itself is disposed of within a period of three months, thereafter. 8. With the above direction, this civil revision petition is dismissed. However there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.