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2014 DIGILAW 3351 (MAD)

Glory Reginal v. Vallinayagam @ Ravi

2014-09-16

K.KALYANASUNDARAM

body2014
Judgment 1. The petitioner, who is the 1st defendant in O.S.No.64 of 2002 filed this revision, challenging the order passed in I.A.No.164 of 2014, dated 23.07.2014. 2. Facts in nutshell for disposal of the revision are as follows:- The first respondent filed O.S.No.64 of 2002 for specific performance of the agreement, dated 19.10.2001. The petitioner received summons in the suit and she appeared through an Advocate on 04.4.2002. Due to non-filing of the written statement, the petitioner was set ex-parte on 07.03.2003 and an ex-parte decree was passed against her. 3. The petitioner filed application in I.A.No.334 of 2004 to set aside the ex-parte decree and the same was allowed. Thereafter, the trial commenced, but the petitioner did not choose to cross examine the witnesses. So, the ex-parte decree was passed against the petitioner on 03.09.2007 and on her application in I.A.No.96 of 2009, the ex-parte decree was set aside on 09.04.2010. Thereafter, the petitioner filed I.A.No.114 of 2010 for recalling PW1 for the purpose of cross examination. 4. The learned Judge allowed the petition on 02.07.2010; the cross examination of PW1 was over on 10.08.2010 and when the suit was posted for defence witnesses, the petitioner did not choose to produce any evidence on 08.12.2010, 13.12.2010, 15.12.2010, 20.12.2010, 04.01.2011, 05.01.2011 and 18.01.2011 and thereafter, filed I.A.No.2 of 2011 seeking appointment of an Advocate Commissioner. Although the prayer was rejected by the trial court, but in CRP(MD) No.2602 of 2012 an Advocate Commissioner was appointed on the request of the petitioner. However, she did not take steps to measure the suit property with the help of the Advocate Commissioner. Thereafter, the petitioner also did not appear in the suit proceedings. Hence, the suit was decreed on 30.01.2013. The plaintiff in the suit filed EP No.69 of 2013 for execution of the sale deed. In the EP also, the petitioner had received notice, but has not chosen to contest the petition. So, the petitioner was set ex-parte on 04.11.2013 and on 05.02.2014, the court has executed the sale deed in favour of the plaintiff/Decree-holder. 5. The petitioner filed I.A.No.167 of 2014 to condone the delay of 180 days in filing the application to set aside the ex-parte decree. The only ground raised by the petitioner is that she was suffering from Cancer and she was taking treatment at Bangalore. 6. 5. The petitioner filed I.A.No.167 of 2014 to condone the delay of 180 days in filing the application to set aside the ex-parte decree. The only ground raised by the petitioner is that she was suffering from Cancer and she was taking treatment at Bangalore. 6. Indisputably, the petitioner has not produced any material to substantiate her case. The learned Principal Subordinate Judge, Nagercoil, having considered the past conduct of the petitioner, leaving the suit ex-parte, on three occasions, held that the petitioner has not proved her illness through documentary evidence, holding so, dismissed the application I.A.No.167 of 2014. 7. The learned counsel for the petitioner submitted that the petitioner is the 1st defendant in the suit and she is having valid right in the suit property and she should be given an opportunity to defend the suit. The learned counsel further submitted that the respondents have not controverted the averments made in the petition and when the respondents have not disputed the illness of the petitioner, the petitioner need not produce any document to establish her case. 8. The learned counsel further submitted that when the condone delay petition is pending, the learned Subordinate Judge, executed the sale deed in favour of the Decree-holder, which is not sustainable in law. 9. It is not the case of the petitioner that she did not receive summons in the suit and she was not aware of the ex-parte decree passed against her. Admittedly, in the year 2003 itself, she received the summons and subsequently, she had been absent on three occasions, the trial court has passed the ex-parte order/decree against the petitioner. 10. Further, it is seen that the petitioner filed I.A.No.2 of 2011 for appointment of an Advocate Commissioner and she has not pursued that application also. The conduct of the petitioner indicates her intention to drag on the proceedings endlessly. 11. It is also seen that in E.P.No.69 of 2013, the trial court has executed the sale deed in favour of the Decree holder on 05.2.2014. The learned Subordinate Judge, considered the conduct of the petitioner and dismissed the application. In my considered opinion, the petitioner has not shown sufficient cause to condone the delay. 12. For all the reasons stated above, this court finds no illegality or irregularly in the order passed by learned Principal Subordinate Judge, Nagercoil, in I.A.No.167 of 2014 in O.S.No.64 of 2002, dated 23.07.2014. In my considered opinion, the petitioner has not shown sufficient cause to condone the delay. 12. For all the reasons stated above, this court finds no illegality or irregularly in the order passed by learned Principal Subordinate Judge, Nagercoil, in I.A.No.167 of 2014 in O.S.No.64 of 2002, dated 23.07.2014. Hence, this civil revision petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.