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Madras High Court · body

2016 DIGILAW 2054 (MAD)

R. Natarajan v. M. Jayakumar

2016-06-30

M.DURAISWAMY

body2016
ORDER : Challenging the fair and final order passed in I.A.No.8687 of 2014 in I.A.No.9601 of 2013 in O.S.No.1462 of 2011 on the file of the XIV Assistant Judge, City Civil Court, Chennai, the 2nd defendant has filed the above Civil Revision Petition. 2. The respondent/plaintiff filed the suit in O.S.No.1462 of 2011 for declaration and permanent injunction. 3. Since the 2nd defendant failed to appear before the trial Court, he was set exparte and an exparte decree was passed in the suit on 27.07.2012. Thereafter, the 2nd defendant filed an application in I.A.No.9601 of 2012 to condone the delay of 322 days in filing an application to set aside the exparte decree dated 27.07.2012. The respondent/plaintiff filed his counter and was contesting the application. While so, the 2nd defendant again remained absent before the trial Court and the application in I.A.No.9601 of 2012 was dismissed for non-prosecution. Thereafter, the 2nd defendant filed another application in I.A.No.8687 of 2014 in I.A.No.9601 of 2013 to condone the delay of 75 days in filing an application to restore the application in I.A.No.9601 of 2013. In the affidavit filed in support of the petition, the 2nd defendant has stated that his counsel did not follow up the matter and the dismissal of the application in I.A.No.9601 of 2013 was not known to him and the same was brought to the notice of the 2nd defendant only on a later date. Further, the 2nd defendant has stated that the non-appearance on 24.01.2014 before the trial Court is only due to the bona fide belief that the case has been posted on 23.01.2014 and the actual date of hearing was wrongly noted down by his counsel as 23.01.2014 instead of 24.01.2014. The averment stated in the affidavit filed in support of the petition was disputed by the plaintiff in his counter. 4. The trial Court, taking into consideration the case of both parties, dismissed the application and refused to condone the delay of 75 days in filing the petition to restore the application on the ground that the 2nd defendant has not given sufficient cause for condoning the delay of 75 days. 5. No doubt, earlier, there was a delay of 322 days in filing the application to set aside the exparte decree and there is a delay of 75 days in restoring the application in I.A.No.9601 of 2013. 5. No doubt, earlier, there was a delay of 322 days in filing the application to set aside the exparte decree and there is a delay of 75 days in restoring the application in I.A.No.9601 of 2013. Since the 2nd defendant has explained the reasons for the delay in the affidavit filed in support of the petition, in the interest of justice, the trial Court should have allowed the application. 6. Since the 2nd defendant was not diligent in prosecuting the matter in a proper manner, I am of the view that the delay of 75 days in restoring the application in I.A.No.9601 of 2013 can be condoned on payment of costs. Accordingly, the fair and decreetal order passed in I.A.No.8687 of 2014 in I.A.No.9601 of 2013 in O.S.No.1462 of 2011 are set aside. 7. The application in I.A.No.8687 of 2014 is allowed on condition the petitioner/2nd defendant paying a sum of Rs.7,500/- (Rupees seven thousand and five hundred only) to the respondent/plaintiff as costs on or before 01.07.2016. 8. The learned counsel appearing for the petitioner submitted that he would be making the payment of the sum of Rs.7,500/- to the counsel appearing for the respondent in this Civil Revision Petition before this Court today itself. 9. The submission made by the learned counsel appearing for the petitioner is recorded. 10. The Civil Revision Petition stands allowed. The XIV Assistant Judge, City Civil Court, Chennai, is directed to take up the application in I.A.No.9601 of 2013 in O.S.No.1462 of 2011 and decide the same, on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order. The learned counsel on either side submitted that they would appear before the trial Court on 11.07.2016.