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2017 DIGILAW 2150 (MAD)

Amutha Kala v. Ganesan Chettiar (Died)

2017-07-21

T.RAVINDRAN

body2017
ORDER : In this civil revision petition, the fair and decreetal orders, dated 03.03.2006, passed in I.A.No.30 of 2004 in O.S.No.209 of 2000, on the file of the Principal Sub Court, Tenkasi, are challenged. 2. The revision petitioner, who is the plaintiff in O.S.No.209 of 2000, has laid the suit against the respondent / defendant for damages on the footing that he had wilfully and unlawfully demolished the compound wall to which, the revision petitioner is entitled to. It is found that the said suit ended in a decree in favour of the plaintiff. No doubt, the said decree is an ex-parte decree. To set aside the same, it is found that the defendant had preferred an application under Order IX Rule 13 of the Code of Civil Procedure and inasmuch as there has been a delay of 1133 days in preferring the said application, it is found that the defendant has preferred I.A.No.30 of 2004 to condone the said delay. The reason given by the defendant for the condonation of delay is that the summons in the suit had not been served on him and only during the course of execution proceedings laid by the plaintiff, he had come to know about the ex parte decree passed against him and further according to the defendant, in respect of the wall in dispute, the same being belonging to him, and according to him, he has sought for appropriate reliefs against the plaintiff by filing a suit in O.S.No.226 of 1998, on the file of the District Munsif Court, Senkottai and the said suit had been decreed in his favour and challenging the same, according to him, the plaintiff had preferred an appeal in A.S.No.31 of 2003 and the said appeal had ended in her favour and further according to him, challenging the first appellate Court's Judgment and Decree, he has preferred second appeal before this Court and the same is pending and inasmuch as the plaintiff had not whispered anything about the pendency of the present suit, he was unaware of laying of the present suit by the plaintiff for damages and also the ex parte decree obtained by her in the suit and hence, he could not file an application to set aside the ex parte decree in time and hence, the delay should be condoned. 3. 3. Resisting the above case of the defendant, it is contended by the plaintiff by filing a counter that the reasons given by the defendant for the condonation of huge delay are false and the summons had been duly served upon the defendant in the suit and despite the receipt of the summons inasmuch as the defendant did not care to enter appearance and also file the written statement, the ex parte decree has been passed against him and it is false to state that the defendant had come to know about the ex parte decree only during the course of execution proceedings and further, according to the plaintiff, the defendant had laid a false suit in O.S.No.226 of 1998 and the appeal preferred by the plaintiff as against the Judgment and Decree passed in said the suit had been allowed and therefore, it is stated that the defendant is well aware of the decree passed in the present suit and on the other hand, in order to avoid the plaintiff from enjoying the fruits of the decree passed in the suit, the defendant has come forward with a false case to condone the huge and inordinate delay and hence, the application does not deserve acceptance and liable to be dismissed. 4. The Court below, on a consideration of the rival contentions put forth by the respective parties, holding that by providing an opportunity to the defendant to contest the matter, no prejudice would be caused to the plaintiff and in this connection, the Court below has also taken into consideration the suit laid by the defendant as regards the disputed wall in question and the pendency of the said suit proceedings in the High Court by way of second appeal and on the above said grounds, it is found that the Court below had allowed the application of the defendant on payment of Rs.250/- to the plaintiff. Challenging the said order, the present civil revision petition has been preferred. 5. The defendant suffered an ex parte decree in the suit laid by the plaintiff seeking for damages. Pursuant to the said decree, it is found that the plaintiff had levied execution proceedings. Challenging the said order, the present civil revision petition has been preferred. 5. The defendant suffered an ex parte decree in the suit laid by the plaintiff seeking for damages. Pursuant to the said decree, it is found that the plaintiff had levied execution proceedings. According to the defendant, only during the course of execution proceedings levied by the plaintiff, he had come to know about the ex parte decree passed against him and hence according to him, he could not prefer the application to set aside the ex parte decree passed against him in time and there occurred a delay of 1133 days and to condone the said delay, it is found that the defendant had preferred I.A.No.30 of 2004. The said application was strongly resisted by the plaintiff on the footing that summons had been duly served upon the defendant and despite having knowledge about the pendency of the suit, he had left the matter to go for ex parte and therefore, it is stated that the defendant is well aware and has knowledge about the ex parte decree passed in the said suit and it is false to state that he had come to know about the said ex parte decree only during the pendency of the execution proceedings. 6. As seen from the contentions put forth by the respective parties, in respect of the disputed wall it is found that the defendant had also laid a suit in O.S.No.226 of 1998, on the file of the District Munsif, Senkottai, against the plaintiff for appropriate reliefs. The said suit had ended in favour of the defendant. The appeal preferred by the plaintiff against the same ended in her favour. It is also admitted that the defendant had preferred second appeal before this Court against the Judgment and Decree of the First Appellate Court. 7. In the light of the above position, according to the defendant, inasmuch as the suit in respect of the disputed wall is pending, the Court below had found it fit that an opportunity should be given to the defendant to contest the suit laid by the plaintiff for damages on merits and therefore, the Court below was right in condoning the delay and according to him, the said order is passed in the interest of justice and not liable to be interfered with. Per contra, it is contended by the learned counsel for the plaintiff that that the suit laid by the defendant in O.S.No.226 of 1998 is a false one and accordingly, the said suit had come to be dismissed by the First Appellate Court and it is also stated by the learned counsel for the plaintiff that the second appeal preferred by the defendant in S.A.(MD) No.1282 of 2004 has been dismissed by this Court on 27.08.2010 itself holding that the First Appellate Court has rightly dismissed the suit laid by the defendant and therefore, the contention now put forth by the defendant that that the second appeal is pending is false. In this connection, a copy of the Judgment and Decree passed in the said second appeal is placed before this Court. The learned counsel for the defendant did not dispute the same and therefore, it is found that as regards the claim of the defendant that the disputed wall belonged to him, the same has been found to be a false claim by this Court in the above said second appeal and therefore, the contention put forth by the defendant that since the ownership of the disputed wall is at issue and not yet resolved, the order of the Lower Court should not be set aside as such cannot be accepted. 8. Be that as it may, it is found that the defendant has come forward with an application to condone the delay of 1133 days. However, the only reason given by him for the condonation of the same is that he has not been served with the summons in the suit. However, as rightly put forth by the learned counsel for the plaintiff, it is seen that the summons has been duly served upon the defendant and therefore, his case that he is unaware of the pendency of the suit laid by the plaintiff and the decree passed in the said suit and he had come to know about the ex parte decree only during the course of execution proceedings as such cannot be countenanced. Therefore, the Court below had failed to consider the same and erred in allowing the application preferred by the defendant. Therefore, the Court below had failed to consider the same and erred in allowing the application preferred by the defendant. The Court below, as found earlier, had taken into consideration the pendency of O.S.No.226 of 1998 laid by the defendant as regards the disputed wall and the pendency of the second appeal with reference to the same. Having now been found that the second appeal preferred by the defendant had come to be dismissed, it is found that the defendant has no right to claim ownership on the disputed wall. Therefore, as rightly put forth by the learned counsel for the plaintiff, the Court below has erred in allowing the application laid by the defendant for the condonation of the huge delay without any acceptable ground. 9. The approach of the Court below in taking a lenient view in the condonation of the huge delay of 1133 days without there being any acceptable reason and when the said reason is also found to be a false one, it is noted that the impugned order cannot be sustained in the eyes of law. Therefore, in my considered opinion, the Court below should have rejected the application preferred by the defendant and on the other hand, it is found that the Court below had entertained the application preferred by the defendant by showing leniency without any basis or good cause. 10. In the light of the above reasons, the civil revision petition is allowed with costs and the fair and decreetal orders, dated 03.03.2006, passed in I.A.No.30 of 2004 in O.S.No.209 of 2000, on the file of the Principal Sub Court, Tenkasi, are set aside. Consequently, connected miscellaneous petition is closed.