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2014 DIGILAW 2995 (MAD)

Raja Rusbutheen v. N. Periyasamy

2014-09-01

V.M.VELUMANI

body2014
Order 1. This Civil Revision Petition has been filed to set aside the order, dated 25.07.2012, passed by the learned Subordinate Judge, Periyakulam, in I.A.No.70 of 2012 in O.S.No.109 of 2007. 2. The petitioner is the seventh defendant, whereas the respondent is the plaintiff in the suit in O.S.No.109 of 2007 on the file of Subordinate Court, Periyakulam. 3. The respondent filed the suit for partition. The petitioner filed written statement in the month of April 2012. During the pendency of the suit, according to the petitioner, there was talks of settlement and the respondent agreed to withdraw the suit. The petitioner believed the promise of the respondent and did not contest the suit. Contrary to the said promise, the respondent proceed with the suit and did not withdraw the suit, but obtained a preliminary decree, on 26.02.2008. The petitioner came to know of the preliminary decree, met the respondent and enquired about the preliminary decree. Again the respondent promised that he will not proceed with further and withdraw the application for final decree. Since the respondent did not keep up his promise, the petitioner filed I.A.No.70 of 2012 to condone the delay of 1476 days in filing the application to set aside the preliminary decree. The respondent filed counter affidavit stating that the petitioner has not given any reason to condone the delay of 1476 days in filing the petition to set aside theex-parte decree. The respondent stated that the petitioner has filed the application for condoning the delay only with a view to drag on the proceedings. Considering the arguments of the learned counsel for the petitioner as well as the respondent, the learned Judge held that the petitioner has not given any valid reason to condone the delay in filing the petition to set aside the ex-parte decree and dismissed I.A.No.70 of 2012, on 25.07.2012. Against the said order of dismissal, the present civil revision petition is filed. 4. Heard Mr. P. Thangapandi, learned counsel appearing for revision petitioner and Mr. V. Srinivasan, learned counsel appearing for the respondent. 5. The learned counsel for the petitioner as well as the respondent reiterated the averments made in the affidavit and in the counter affidavit. 6. Against the said order of dismissal, the present civil revision petition is filed. 4. Heard Mr. P. Thangapandi, learned counsel appearing for revision petitioner and Mr. V. Srinivasan, learned counsel appearing for the respondent. 5. The learned counsel for the petitioner as well as the respondent reiterated the averments made in the affidavit and in the counter affidavit. 6. In support of his submission, the learned counsel for the petitioner relied on the following Judgments:- (i) Kasturi v. Saravanan @ Sakthi Saravanan [ 2010 (4) CTC 705 ] (ii) Olympic Cards Limited v. Standard Chartered Bank [ 2013 (1) CTC 38 ] (iii) Krishnamoorthy v. Parasuraman and Others [ 2007 (3) MLJ 636 ] (iv) Ravi Enterprises v. Indian Bank and Another [ 2008 (1) CTC 785 ] (v) Joint Commissioner, (H.R. & C.E.) v. Ambasamudram Taluk, Ambasamudram Vetta Thirukoil Paniyalargal Sangam [ 2006 (1) CTC 45 ] 7. It is well settled that length of delay is not the criteria, but the Court must consider only whether the petitioner has given sufficient reason for condoning the delay. In the present case, the petitioner has specifically stated that he met the respondent and informed him that he is the purchaser for valid consideration and the respondent promised to withdraw the suit. The respondent did not specifically deny this averment in his counter and arguments. Therefore, the statement of the petitioner that there was talks of settlement and the respondent promised to withdraw the suit is acceptable one. Therefore, I hold that the petitioner has given sufficient reason to condone the delay. The learned Judge has not considered the reason given in the various Judgments of the Apex Court as well as this Court. Therefore, the order dated 25.07.2012, passed by the learned Subordinate Judge, Periyakulam, in I.A.No.70 of 2012 in O.S.No.109 of 2007, is set aside. 8. In the result, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.