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2016 DIGILAW 1222 (MAD)

Ganapathy Velalar v. Thiruvaleeswaran (died)

2016-03-21

V.M.VELUMANI

body2016
ORDER : The Civil Revision Petitions in C.R.P(MD).Nos.2656 to 2659 of 2015 are filed against the fair and decreetal order dated 20.07.2015 passed in I.A.No.2166 of 2013 in O.S.No.806 of 2005 and I.A. Nos. 96 to 98 of 2015 in O.S.No.806 of 2005 on the file of Principal District Munsif Court, Tenkasi. 2. The Civil Revision Petition in CRP(MD).No.2124 of 2015 is filed to call for the records and set aside the fair and executable order dated 10.07.2015 passed in execution petition in E.P.No.3 of 2013 in O.S.No.806 of 2005 on the file of Principal District Munsif Court, Tenkasi. 3. In all these Civil Revision Petitions issue is one and the same. Therefore, all the Civil Revision Petitions are heard together and disposed of by this common order. 4. The revision petitioner is the defendant. The deceased plaintiff/Thiruvaleeswaran is husband of first respondent and father of the respondents 2 and 3. 5. The deceased plaintiff filed a suit in O.S.No.806 of 2005 for declaration and recovery of possession and injunction and the said suit was decreed ex parte on 23.08.2006. The petitioner filed an application to set aside the ex parte decree along with I.A.No.2166 to of 2013 to condone the delay of 2529 days in filing an application to set aside the ex parte decree. According to the petitioner, he filed an application to set aside the ex parte order on 04.09.2006. The said application was returned on 11.06.2006 for certain defects. The returned papers were stolen from the office of the Advocate on 14.04.2013. On 12.08.2013, the petitioner met advocate and filed fresh application to set aside the ex parte decree along with petition to condone the delay in filing an application to set aside the ex parte decree. The respondent filed a memo stating that the plaintiff died on 06.02.2008 itself and subsequently, that application filed against the dead person and therefore, the petition is not maintainable. Thereafter, the petitioner filed I.A.Nos.96 to 98 of 2015 to condone the delay of 2500 days in filing an application to set aside the abatement caused due to the death of the plaintiff and to set aside the abatement and to bring the LRs on record. 6. Thereafter, the petitioner filed I.A.Nos.96 to 98 of 2015 to condone the delay of 2500 days in filing an application to set aside the abatement caused due to the death of the plaintiff and to set aside the abatement and to bring the LRs on record. 6. The respondent filed counter affidavit stating that the petitioner knew about the death of the plaintiff in the year 2008 itself and the allegation that he came to know about the death only when the respondent's filed a memo is contrary to facts. In the year 2011, the petitioner gave complaint against the Advocate who appeared for plaintiff to Bar Council of Tamil Nadu. In the said complaint, petitioner stated that plaintiff died on 06.02.2008. The learned Judge considering all these facts and materials on record dismissed all the applications as devoid of merits. Against the said order of dismissal, the petitioner filed the present Civil Revision Petitions. 7. The learned counsel for the revision petitioner contended that an application for condoning the delay must be liberally considered. The learned Judge dismissed all the applications contrary to the Principles of Natural Justice and the learned Judge did not properly exercised his power conferred on him. 8. The learned counsel for the caveator submitted that the petitioner did not approach this Court with clean hand. The petitioner knowing fully well that the plaintiff died on 06.02.2008, itself falsely alleged that he knew about the death only in the year 2014, when the memo was filed by the respondent. The petitioner has not given any valid reason for condoning the delay. The petitioner has stated that the application for condoning the delay was filed in the year 2006 itself. But, he was not diligent enough to get the same numbered. The petitioner has not given any particulars with regard to filing of said applications. The petitioner filed application to condone the delay in the year 2013 stating that the earlier application was stolen in the advocate's office. The petitioner did not give any valid reason for keeping quiet from 2006 to 2013 and he has also given a complaint to the Bar Council of Tamil Nadu in the year 2011. 9. I have heard the learned counsels appearing on either side and perused the materials on records. 10. The petitioner stated that plaintiff died in the year 2008 itself. 9. I have heard the learned counsels appearing on either side and perused the materials on records. 10. The petitioner stated that plaintiff died in the year 2008 itself. As far as condonation of delay is concerned it is well settled that length of delay is not criteria, but, the intention must be bonafide and should not be malafide. The petitioner must be given sufficient reason for condoning the delay. In the present case the petitioner has not given sufficient and valid reason for condoning the delay. In such circumstances, the learned Judge considered all the materials on record in proper perspective and has given valid and cogent reasons for dismissing the applications. Further the learned Judge has exercised his power conferred on him properly and there is no irregularity or illegality warranting interference by this Court. 11. In the result, the Civil revision petitions are dismissed confirming the impugned order dated 10.07.2015 passed in E.P.No.3 of 2013 in O.S.No.806 of 2005 and the order dated 20.07.2015 passed in I.A.No.2166 of 2013 in O.S.No.806 of 2005 and I.A. Nos. 96 to 98 of 2015 in I.A.No.2166 of 2013 in O.S.No.806 of 2005 on the file of Principal District Munsif Court, Tenkasi. No costs. Consequently, connected Miscellaneous Petition is closed.