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2012 DIGILAW 4866 (MAD)

Subbannan @ Kondalathar v. C. Palanisamy

2012-11-30

T.MATHIVANAN

body2012
Judgment :- 1. When the petition was taken up, this Court is able to found that the respondents 1 and 2 were duly served on 14.08.2012. However, the respondents 1 and 2 have not chosen to appear either in person or through their respective counsels. The learned counsel for the revision petitioner is present. 2. It appears from the records that this memorandum of civil revision petition is directed against the order dated 15.07.2005 and made in I.A.No.723 of 2004 in O.S.No.144 of 2001, on the file of the learned District Munsif cum Judicial Magistrate, Kodumudi. 3. It is manifested from the records that the respondents 1 and 2 have filed the suit in O.S.No.144 of 2001 against the revision petitioner seeking the relief of permanent injunction. The revision petitioner also contested the suit by filing his written statement. The suit stood posted for trial on 09.10.2003. Since the revision petitioner was not able to appear before the Court, he was called absent and set ex-parte and subsequently, on the same day, an ex-parte decree was also passed. There is a delay of 270 days in filing the application to set aside ex-parte decree dated 09.10.2003 and therefore, the revision petitioner appears to have filed an application in I.A.No.723 of 2004 to condone the delay of 270 days. The evidence was also recorded to substantiate his case as well as the respondents. However, the trial Court has proceeded to dismiss the application on 15.07.2005. Being aggrieved by the order dated 15.07.2005 and made in I.A.No.723 of 2004 in O.S.No.144 of 2001, the defendant being the revision petitioner has preferred this revision. 4. The learned counsel for the revision petitioner has submitted that after filing the written statement and formulation of necessary issues, the suit stood posted for trial on 09.10.2003. Since the petitioner had been to Bangalore for his livelihood, he could not appear before the trial Court. Under this circumstance, the revision petitioner was called absent and even on the same day itself, an ex-parte decree was passed. In the evidence recorded by the trial Court, R.W.1 has stated that he had no objection to set aside the ex-parte and to continue the trial proceedings. In this connection, the learned counsel for the revision petitioner has adverted to that without considering the evidence of R.W.1, the trial Judge had wrongly proceeded to dismiss the application. In the evidence recorded by the trial Court, R.W.1 has stated that he had no objection to set aside the ex-parte and to continue the trial proceedings. In this connection, the learned counsel for the revision petitioner has adverted to that without considering the evidence of R.W.1, the trial Judge had wrongly proceeded to dismiss the application. It is further submitted that at the time of recording the evidence in Section 5 application, R.W.1 had marked Ex.P5 and Ex.R6 but in both the documents neither the signature of the respondents nor their counsels' signature were present and this was fairly admitted by the respondents but however, this aspect was also not properly appreciated and considered by the trial Court. The learned counsel for the revision petitioner has submitted that unless and until the delay of 270 days was condoned and the ex-parte decree dated 15.07.2005 was set aside, the petitioner would be put into irreparable loss and hardships. 5. This Court has fairly considered the submissions made on behalf of the revision petitioner. Despite notice to the respondents 1 and 2 have been served, they have not chosen to appear either in person or through their respective counsels and this Court has therefore no other go excepting to dispose of this revision petition in the absence of the respondents 1 and 2 on merits. In view of the above fact, this Court is inclined to allow the Civil Revision Petition and to condone the delay of 270 days. 6. Accordingly, the Civil Revision Petition is allowed and the impugned order dated 15.07.2005 is set aside and the application in I.A.No.723 of 2004 is allowed. The trial Court is directed to take up the petition for setting aside the ex-parte decree and after its disposal in the light of the observation made in this revision petition and dispose the suit on merits as expeditiously as possible preferably within a period of four months as the suit is related to the year 2001. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs.