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2021 DIGILAW 3235 (MAD)

J. Raju v. S. Arumugam Pillai

2021-11-22

R.THARANI

body2021
JUDGMENT : (Prayer: Civil Revision Petition is filed under Article 115 of Code of Civil Procedure Code, to set aside the fair and decreetal order passed in I.A.No.474 of 2015 in O.S.No.24 of 2011 on the file of II Additional Subordinate Court, Nagercoil, Kanyakumari District dated 01.12.2016.) 1. This Civil Revision Petition filed against the order in I.A.No.474 of 2015 in O.S.No.24 of 2011 on the file of the II Additional Subordinate Court, Nagercoil, Kanyakumari District dated 01.12.2016. 2. The petitioner is the second defendant in the O.S.No.24 of 2011 and the petitioner in I.A.No.l474 of 2015. The respondents are plaintiffs in O.S.No.24 of 2011 and are the respondents in I.A.No.1474 of 2021. 3. The respondent herein filed a suit in O.S.No.24 of 2011 for declaring the sale deed, dated 18.04.2005 executed by the first respondent infavour of the second respondent as null and void and to declare the deposit of title deeds, dated 20.12.2005 as null and void and to recover possession and for permanent injunction restraining the defendants 1 and 2 from altering the existing physical features. Since there was no representation for the defendants, the defendants were set ex-parte and an ex-parte decree was passed on 09.03.2012. 4. The petitioner herein filed a petition in I.A.No.474 of 2015 to condone the delay in filing petition to set aside the ex-parte decree, dated 09.03.2012 and the same was dismissed by the trial Court. Aggrieved by the same, the present Civil Revision Petition is filed. 5. The brief facts in I.A.No.474 of 2015 are as follows:- The petitioner is the second defendant in the Suit. On behalf of the second defendant, vakalath was filed and time was granted for filing written statement. Due to Spinal card problem, the petitioner could not attend the Court on 23.02.2012 and could not contact his Advocate to give proper instructions to file a written statement. Therefore, the petitioner was set as ex-parte on 09.03.2012. In view of the absence of petitioner on 23.02.2012 and on 09.03.2012, an ex-parte decree was passed. The petitioner has taken steps to set aside the ex-parte decree with a delay of 1265 days. 6. The brief facts of the counter as follows:- The defendants 1, 3 and 4 did not file any vakalath and they were set ex-parte even prior to 09.03.2012, only the second defendant has filed a Vakalath. The petitioner has taken steps to set aside the ex-parte decree with a delay of 1265 days. 6. The brief facts of the counter as follows:- The defendants 1, 3 and 4 did not file any vakalath and they were set ex-parte even prior to 09.03.2012, only the second defendant has filed a Vakalath. The suit was filed on 03.02.2011, but till 09.03.2012, no counter was filed by the second defendant. The petitioner/second defendant alone has filed a petition to condone the delay in filing a petition to set aside the ex-parte decree. The defendants 1, 3 and 4 have not filed any petition. The first defendant sold the property to the second defendant. The third defendant/bank has collected the loan amount from the second defendant. Hence, the third defendant did not make any appearance. The second defendant was not available in India for the past two years. The alleged B. Kollappan died on 28.07.1991 and there was no possibility for the said B. Kollappan to have executed the sale deed dated 18.04.2005. Immediately after four months, the first defendant has executed a document in favour of the second defendant to obtain loan from the bank. Even if the petition is allowed and even if the ex-parte order is set aside, the petitioner/second defendant will not turn up to the Court. No document was filed to prove the petitioner's illness and the reason for the delay is not properly explained. 7. After hearing both sides, the trial Court had dismissed the petition against the revision petitioner. 8. On the side of the petitioner, it is stated that the suit was filed on 08.02.2011 by one S. Arumugham Pillai, who is the first respondent herein. The defendants received the summons and appeared on 22.02.2014. The revision petitioner met with an accident in the year 2005 and the revision petitioner was in a very critical unconscious stage as inpatient for a period of more than 3 months. Due to the accident, the revision petitioner sustained fracture in the right leg, right hand fingers and suffered spinal card disc prolapse compressing the spinal cord nerve roots. The doctors has strictly advised the revision petitioner, to take bed rest. Due to the said accident, the petitioner's health condition became worse and he was forced to take treatment at Ealing Hospital, United Kingdom, where the revision petitioner was advised to undergo surgery on 28.1.2012. The doctors has strictly advised the revision petitioner, to take bed rest. Due to the said accident, the petitioner's health condition became worse and he was forced to take treatment at Ealing Hospital, United Kingdom, where the revision petitioner was advised to undergo surgery on 28.1.2012. In the above circumstances, the revision petitioner was also under a depressed stage of mind, due to which, the petitioner was not able to attend the Court on 23.02.2012 and on 09.03.2012. The revision petitioner was also not informed about the hearing dates by his lawyer. The revision petitioner's absence before the trial Court is neither willful nor wanton. 9. The revision petitioner was continuing his M.B.A. Studies at the University of Sunderland, London Campus, U.K.. During that time, the revision petitioner was not able to contact his lawyer and give proper instructions with regard to O.S.No.24 of 2011 and the revision petitioner permanently returned to India on 17.04.2015 from UK after finishing his higher studies. The suit property in O.S.No.24 of 2011 was sold by the revision petitioner to one Mr. Sahaya Reegan on 24.09.2010 and he has to be impleaded in the suit. Only on the information from the subsequent purchaser, by name, Sahaya Reegan, the petitioner came to know about the ex-parte decree and there was a delay of 1265 days in filing a petition to set-aside the ex-partee decree. The impugned decree passed by the Court below is illegal and the same is liable to be set aside. The delay has to be considered in a liberal manner and the same is to be condoned. 10. On the side of the respondents, it is stated that the delay of 1265 days has not been explained by the revision petitioner. The alleged accident took place in the year 2005 and the ex-parte order was passed in the year 2012. During this period, the petitioner did not try to attend the Court or try to contact his Lawyer. If is further stated that the revision petitioner has failed to produce the copy of the passport to prove that he was not available in India for a period of 4 years and that the petition is to be dismissed. 11. On the side of the revision petitioner, some medical reports were produced, for taking treatment for some Dermatology problem and not for fracture as alleged by the petitioner. 11. On the side of the revision petitioner, some medical reports were produced, for taking treatment for some Dermatology problem and not for fracture as alleged by the petitioner. The petitioner has not produced copy of the passport and the petitioner has failed to explain the delay in the proper manner. Hence, the order passed by the trial Court cannot be termed as perverse and this Court is not inclined to interfere with the order in I.A.No.474 of 2015 in O.S.No.24 of 2011 on the file of II Additional Subordinate Court, Nagercoil, Kanyakumari District dated 01.12.2016. 12. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. No Costs.