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2014 DIGILAW 4532 (MAD)

S. Nehru v. S. Sivasankar

2014-12-05

K.RAVICHANDRABAABU

body2014
JUDGMENT : K. Ravichandrabaabu, J. 1. The Revision Petitioners are the Plaintiffs in O.S. No. 1956 of 2008 on the file of XI Assistant City Civil Court, Chennai. The Respondents are the Defendants in the said Suit. The Plaintiffs filed the said Suit for Permanent Injunction restraining the Defendants from interfering with the peaceful possession and enjoyment of the First Plaintiff of the Suit Schedule property. On 6.7.2009, the Suit was decreed ex parte. After nearly three years, the Defendants filed I.A. No. 17954 of 2012 seeking to condone the delay on 842 days in filing an Application to set aside the said ex parte Decree. The said Application was allowed by the Trial Court on 12.8.2013. Challenging the same, the Plaintiffs filed C.R.P. (NPD) No. 3697 of 2013 before this Court. The said C.R.P. was dismissed by Order dated 9.10.2013, however by observing that it is open for the Revision Petitioners therein (Petitioners herein) to contest the Application filed to set aside the ex parte Decree and the lower Court shall independently decide the Application to set aside the ex parte Decree, without being influenced by any observations made in the order passed in the said C.R.P. Thereafter, the Application filed by the Defendants under Order 9, Rule 13, C.P.C. seeking to set aside the ex parte Decree, was numbered as I.A. No. 11432 of 2013 and the said Application, after contest, was allowed. Challenging the said Order, the present Civil Revision Petition is filed before this Court by the Plaintiffs. Learned Counsel appearing for the Petitioners submitted that even though the delay in filing the set aside Application was condoned by the Trial Court and the said Order was confirmed by this Court, still, the Defendants are not entitled to get the ex parte Decree set aside, since they have not given sufficient reasons for their non-appearance on the particular day. Therefore, he contended that in the absence of showing any reason, the Trial Court ought not to have allowed the Application. In support of such submission, learned Counsel for the Petitioners relied on a decision of this Court reported in Kathavelu v. Murugesan, 2001 (2) CTC 658 . 2. Therefore, he contended that in the absence of showing any reason, the Trial Court ought not to have allowed the Application. In support of such submission, learned Counsel for the Petitioners relied on a decision of this Court reported in Kathavelu v. Murugesan, 2001 (2) CTC 658 . 2. Per Contra, learned Counsel appearing for the Respondents 1, 2 & 4 submitted that on the very same reasons, the Application filed for condoning the delay was allowed and the same was confirmed by this Court, and therefore, there is no error on the part of the Trial Court in allowing the consequential set aside Petition also on the same reasonings. 3. Heard the learned Counsel appearing on either side and perused the materials placed before this Court. 4. It is seen that as against the Defendants, ex parte Decree came to be passed on 6.7.2009. It is also seen that the Defendants sought to set aside the ex parte Decree after a delay of 842 days. Therefore, they have filed the Application in I.A. No. 17954 of 2012 under Section 5 of the Limitation Act seeking to condone the delay of 842 days. At this juncture, it is pertinent to note that the Affidavit, dated 28.11.2011 filed by the Fourth Defendant, is the common Affidavit filed in support of the Application filed under Section 5 of the Limitation Act as well as the Application filed under Order 9, Rule 13, C.P.C. Therefore, it is evident that the reasons stated for condoning the delay as well as for setting aside the ex parte Decree, are one and the same in the one Affidavit filed, i.e. dated 28.11.2011. Such contentions made in the said Affidavit, were accepted by the Trial Court for condoning the delay and such Order of the Trial Court also has been confirmed by this Court in said C.R.P. Therefore, it is evident that the reasons stated by the Defendants in the said Affidavit, dated 28.11.2011, had been accepted by the Trial Court as well as by this Court and when that being the reasons commonly stated for condoning the delay as well as for setting aside the ex parte Decree, it cannot be said that such reasons acceptable for condoning the delay, are not acceptable for setting aside the ex parte Decree. Therefore, I am of the view that the Trial Court has rightly allowed the Application and set aside the ex parte Decree once again by considering those facts and circumstances and material evidence. 5. No doubt, learned Counsel for the Petitioners relied on the decision of this Court reported in Kathavelu v. Murugesan, 2001 (2) CTC 658 , to contend that in the absence of reasons, the Court cannot set aside the ex parte Decree. There cannot be any quarrel over the said proposition. A perusal of the facts of the said case would show that the ex parte Decree therein was passed on 7.3.1990 and the Application to set aside the ex parte Decree was filed on 4.4.1990 and therefore, there was no delay. So, the Court has to certainly see as to whether the reasons stated in the Affidavit filed in support of the Application under Order 9, Rule 13, C.P.C. therein discloses some reasons or not. But the facts of the present case are totally different as discussed supra. There was a delay and such delay was sought to be explained by the Defendants with some reasons and the same has been accepted by the Trial Court as well as by this Court. When the explanation for the delay and set aside ex parte Decree is one and the same, the said decision relied on by the learned Counsel for the Petitioners is not helping him in any manner, as the same is factually distinguishable. Accordingly, I find no merits to interfere with the impugned Order of the Court below. The Civil Revision Petition fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.