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2019 DIGILAW 2011 (MAD)

Parvathi v. Kolanthagounder

2019-08-05

ABDUL QUDDHOSE

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JUDGMENT : ABDUL QUDDHOSE, J. Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the order passed in I.A. No. 110 of 2012 in O.S. No. 72 of 2007 on the file of the Subordinate Court, Bhavani, Erode District, dated 01.2.2014. 1. The instant Civil Revision Petition has been filed challenging the order dated 01.02.2014 passed by the Subordinate Court, Bhavani, Erode District in I.A. No. 110 of 2012 in O.S. No. 72 of 2007. 2. Brief facts leading to the filing of the instant Civil Revision Petition: The petitioner is one of the Legal Representatives of the deceased second defendant in the suit O.S. No. 72 of 2007. The said suit was filed for partition by the respondent/ plaintiff against the defendants. An ex-parte preliminary decree dated 21.04.2008 came to be passed in favour of the respondent. Thereafter, the respondents filed I.A. No. 211 of 2008 in O.S. No. 72 of 2007 for passing of final decree, by appointment of Advocate Commissioner to divide the properties by metes and bounds. The petitioner, who is the daughter and one of the Legal Representatives of the deceased second defendant filed I.A. No. 110 of 2012 in O.S. No. 72 of 2012, seeking to condone the delay of 1388 days in filing an application to set aside the ex-parte decree dated 21.04.2008. 3. As seen from the affidavit filed in support of I.A. No. 110 of 2012, the petitioner claims that the suit schedule properties are ancestral properties and she has a share in the same after the death of the second defendant Chinnakolantha Gounder alias Kolantha Gounder. This fact is not disputed by the learned counsel for the respondent. The reason given in the affidavit filed in support of I.A. No. 110 of 2012 is that the petitioner came to know about the ex-parte decree only in the year 2008 after the application for final decree was filed by the respondent. Further, it was stated that she was suffering from Jaundice and was taking country treatment. With these reasons, she has filed an application to condone the delay of 1388 days in filing an application to set aside the ex-parte decree. 4. A counter statement was also filed by the respondent before the Trial Court in I.A. No. 110 of 2012 denying the averments contained in support of I.A. No. 110 of 2012. With these reasons, she has filed an application to condone the delay of 1388 days in filing an application to set aside the ex-parte decree. 4. A counter statement was also filed by the respondent before the Trial Court in I.A. No. 110 of 2012 denying the averments contained in support of I.A. No. 110 of 2012. Oral evidence was also let in by both the parties before the Trial Court in I.A. No. 110 of 2012. 5. By order dated 01.02.2014, the Trial Court dismissed I.A. No. 110 of 2012 filed by the petitioner on the ground that no sufficient reasons have been given for condoning the inordinate delay. Aggrieved by the same, the instant Civil Revision Petition has been filed under Article 227 of the Constitution of India. 6. Heard Ms. R. Shase, learned counsel for the petitioner and Mr. K.S. Jeya Ganeshan, learned counsel for the respondent. 7. Admittedly, the petitioner, who is the daughter of the second defendant in the suit, who died after passing of the ex-parte decree is one of his Legal Representatives. It is also an admitted fact that the second defendant has a share in the suit schedule properties and since he died subsequent to the passing of the ex-parte decree, the petitioner also gets a share in the suit schedule properties. Even though the reasons given in the affidavit filed in support of I.A. No. 110 of 2012 for condonation of delay is not satisfactory, considering the fact that the suit filed by the respondent is a partition suit and the petitioner is having a share in the suit schedule properties, she should be allowed to contest the suit on merits. But however, considering the fact that the petitioner has not been vigilant in contesting the suit despite knowledge of the suit and that too when the delay being an inordinate one, costs will have to be imposed on the petitioner to enable her to defend the suit O.S. No. 72 of 2007 on merits. 8. In the considered view of this Court, since there are seven items of properties in the suit schedule and the fact that the suit was valued at Rs. 2,36,882/- a sum of Rs. 8. In the considered view of this Court, since there are seven items of properties in the suit schedule and the fact that the suit was valued at Rs. 2,36,882/- a sum of Rs. 25,000/- as costs will be a reasonable sum to compensate the respondent for making him to defend this revision belatedly as well as for the indifference and laxity shown by the petitioner for defending the suit O.S. No. 72 of 2007. 9. In the result, the following directions are issued: (a) the impugned order, dated 01.02.2014 in I.A. No. 110 of 2012 in O.S. No. 72 of 2007 is hereby set aside and the Civil Revision Petition shall stand allowed on condition that the petitioner pays a sum of Rs. 25,000/- (Rupees twenty five thousand only) as costs to the respondent/plaintiff within a period of four weeks from the date of receipt of a copy of this order. On such payment within the stipulated period, the ex-parte preliminary decree dated 21.04.2008 passed in O.S. No. 72 of 2007 by the Sub-ordinate Court, Bhavani also stands set aside. (b) In default of payment of costs of Rs. 25,000/- by the petitioner to the respondent within the stipulated time mentioned above, the Civil Revision Petition shall stand automatically dismissed. (c) The petitioner is directed to file the written statement in the suit O.S. No. 72 of 2007, within a period of two weeks from the date of payment of costs. On the filing of the written statement, the Trial Court shall frame issues and thereafter shall dispose of the suit within a period of four months. (d) Consequently, the connected miscellaneous petition is closed.