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2013 DIGILAW 1998 (MAD)

Poongavana Gounder v. Ramasamy Gounder

2013-06-13

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. This Civil Revision Petition has been filed against the order passed in I.A.27/2009 in O.S.No.80/2008 dated 09.03.2012 on the file of the Sub-Court, Arni, Tiruvannamalai District, rejecting the application filed by the petitioner seeking to condone the delay of 21 days in filing the petition to set aside the ex-parte decree passed on 30.09.2008. 2. Heard the learned counsel for the petitioner as well as the respondent. 3. The respondent herein filed the suit against the petitioner for partition in O.S.No.80/2008. The petitioner and the respondent are brothers. The said suit came to be decreed ex-parte on 30.09.2008. The petitioner herein, as the defendant, filed an application under Section 5 of the Limitation Act, seeking to condone the delay of 21 days in filing the set aside petition by contending that the petitioner, as the defendant, did not refuse to receive the suit summon on the date when it was attempted to be served on him and he only instructed the Court Amin that he will receive the summon after consulting his counsel. It is also stated by the petitioner in the affidavit filed in support of the application that he is an innocent man and the Amin also informed him that he will come back on the next day with the suit summon to serve on him. However, the Amin did not return next day to serve the suit summon. Therefore, the absence of the petitioner on the date of hearing, namely, 30.09.2008 is neither wilful nor wanton. 4. The Court below considered the respective pleadings of the parties and found that the petitioner herein, having refused to receive the summon, is not entitled to get the delay of 21 days condoned as he has not shown sufficient reasons. 5. I have gone through the respective pleadings of the parties as well as the orders passed by the Court below. 6. The delay in this case is 21 days in filing the set aside petition. The dispute is between brothers seeking for partition of the suit property. 5. I have gone through the respective pleadings of the parties as well as the orders passed by the Court below. 6. The delay in this case is 21 days in filing the set aside petition. The dispute is between brothers seeking for partition of the suit property. A perusal of the affidavit filed in support of the application in I.A.No.27/2009 would disclose that at para 3 it is stated that the petitioner has not refused to receive the Court summon and on the other hand, he has asked the Court Amin to come back on the next day so that in the mean time the petitioner could contact his counsel. Whether such conduct of the petitioner is correct or not, the fact remains that the petitioner claimed that there is no refusal in receiving the summon and he only requested the Court Amin to come on the next day. Therefore, the finding of the Court below that the petitioner refused to receive the summon is not justified without examining the Court Amin. However, in view of the fact that the delay is only 21 days and the reasons adduced by the petitioner in the affidavit would also show some justifiable cause, I find that the application filed by the petitioner is to be allowed so as that the parties can agitate the matter before the Court below on merits. 7. Accordingly, the order passed by the Court below viz., Sub-Court, Arni Taluk, Tiruvannamalai District in I.A.No.27/2009 in O.S.No.80/2008 is set aside and I.A.No.27/2009 in O.S.No.28/2008 is allowed. The suit is of the year 2008 and therefore, the learned counsel for the respondent prays that the lower Court may be directed to dispose of the suit at an early date. Accordingly, the lower court is directed to dispose of the suit in O.S.No.80/2008 within a period of three months from the date of receipt of a copy of this order. 8. With these observations, this Civil Revision Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.