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2014 DIGILAW 535 (MAD)

Govindasamy v. Ravichandran

2014-02-27

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. Notice before admission was given and the respondents are represented by counsel. The arguments advanced on both sides are heard. 2. The plaintiff in O.S.No.165 of 2007 on the file of the Principal District Munsif-cum-Judicial Magistrate, Chengam, is the petitioner in the present revision. The defendants therein are the respondents in the revision. The suit came to be filed by the revision petitioner for a declaration that he is the absolute owner of the suit property and for a permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the same. The respondents are none other than the son of the revision petitioner born through his first wife and his wife (daughter-in-law of the revision petitioner). 3. After receipt of summons in the suit, the respondents entered appearance through counsel and took time for filing written statement. After getting a number of adjournments, they failed to file written statement. Besides they also failed to turn up on the date of hearing, as a result of which they were set ex-parte and an ex-parte trial was conducted. The ex-parte trial resulted in the passing of an ex-parte decree on 29.10.2007 granting the reliefs as prayed for by the revision petitioner herein. The respondents, who suffered such an ex-parte decree, did not approach the Court within time with an application to set aside the ex-parte decree. On the other hand, they chose to file such an application under Order IX, Rule 13 C.P.C. belatedly and hence, it was filed along with a petition under Section 5 of the Limitation Act. The said application filed under Section 5 of the Limitation Act was taken on file as I.A.No.325 of 2008. The application was resisted by the revision petitioner herein contending that the delay was not properly accounted for, besides the extent of delay having been wrongly stated. In addition, the revision petitioner also contended that the respondents deliberately allowed the suit to be decreed ex-parte and belatedly approached the Court with the application under Order IX, Rule 13 C.P.C. to harass the revision petitioner. 4. The learned trial Judge, after hearing, held that the delay was not 69 days as stated in the petition but was 97 days. 4. The learned trial Judge, after hearing, held that the delay was not 69 days as stated in the petition but was 97 days. It also accepted the contention of the respondents herein that they were prevented by a reasonable cause from filing the application to set aside the ex-parte decree in time and accordingly allowed the above said application stating that the delay in filing the application under Order IX, Rule 13 C.P.C. was to be condoned. The said order is challenged in the present revision. 5. The learned counsel for the revision petitioner submits that the respondents had confused the Court below and the learned trial Judge, out of utter confusion and without application of mind, simply passed an order which is in effect, a non speaking order, condoning the delay. The learned counsel took this Court through the relevant dates and pointed out the fact that the ex-parte decree came to be passed on 29.10.2007, whereas the affidavit filed in support of the application bears the date 02.01.2008. The ex-parte decree was passed on 29.10.2007 whereas the first respondent, in his affidavit, has noted the date of ex-parte decree as 01.10.2006. The number of the suit is O.S.No.165 of 2007, whereas the same has been wrongly furnished in the affidavit and also the petition as O.S.No.165 of 2005. 6. If the date of ex-parte decree is taken to be the date as mentioned in the affidavit, the calculation of number of days of delay will be erroneous. This Court is at a loss to understand as to how the Court below came to give a different figure as the number of days of delay. The learned trial Judge has not referred to the dates for arriving at a conclusion that the delay was 97 days. On the other hand, the learned trial Judge, without bestowing attention on the above said facts and without considering the glaring mistakes found in the affidavit and petition even regarding the number of days of delay and the number of the suit, mechanically passed an order allowing the application. This Court is not in a position to accord its stamp of approval to such an order passed by the learned trial Judge. This Court is not in a position to accord its stamp of approval to such an order passed by the learned trial Judge. The order deserves to be interfered with in view of the fact that the respondents herein have furnished erroneous particulars, which are also illogical and also the fact that the supporting affidavit contains a recital that the first respondent was suffering from jaundice for about 14 years, which is highly improbable. This Court comes to the conclusion that the order of the learned trial Judge has to be set aside and the application filed by the respondents before the trial Court viz., I.A.No.325 of 2008 deserves to be dismissed. 7. In the result, the Civil Revision Petition is allowed. The order passed by the learned trial Judge in I.A.No.325 of 2008 dated 29.08.2011 is set aside. I.A.No.325 of 2008 shall stand dismissed. Consequently, the un-numbered I.A. filed under Order IX, Rule 13 C.P.C. shall stand rejected. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.