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2023 DIGILAW 635 (MAD)

Kumudha v. N. Kuppusamy Mudaliyar

2023-02-27

V.BHAVANI SUBBAROYAN

body2023
ORDER : 1. The Civil Revision Petition has been filed to set aside the order and decreetal order dated 12.09.2019 made in I.A.No.85 of 2010 in O.S.No.112 of 1998 passed by the learned Additional Subordinate Judge, Kanchipuram. 2. The brief facts of the case are as follows: The petitioner's husband, viz., K.Devarajan is the plaintiff and the respondent is the defendant in O.S.No.112 of 1998, which was filed to pass a decree of declaration that the plaintiff is the absolute owner of the C,D,E and F portion vacant site mentioned in the schedule and to grant permanent injunction against the respondent/defendant and his men restraining them from in any way interfering with the plaintiff's peaceful possession and enjoyment of the said vacant site and further, a decree of declaration that the impugned sale deed dated 22.01.1996 purported to have been executed by the plaintiff in favour of the defendant is forged, concocted, void ab initio, invalid and unenforceable and not binding upon the plaintiff and as consequence grant a permanent injunction against the defendant. The said was decreed ex-parte on 23.12.2003. The respondent/defendant has filed I.A.No.85 of 2010 to condone the delay of 2155 days in filing the petition to set aside the ex-parte decree. The said I.A. was allowed on payment of Rs.2,000/- to the petitioner. As against the same, the petitioner/plaintiff has preferred the present Revision. 3. The learned counsel for the petitioner/plaintiff would submit that the court below failed to see that the respondent has not examined the advocate's clerk, who alleged to have wrongly noted the order and the respondent has not explained each day of delay with sufficient cause. Further, the application for receiving the copy of the order was not filed and it is only a hearsay that the suit was dismissed for default and this piece of evidence is not admissible. That apart, there is no oral or corroborative evidence to support the respondent's illness, hence pleaded to set aside the order passed by the court below. 4. Further, the learned counsel for the petitioner has relied on the Judgment of the Hon'ble Supreme Court in Civil Appeal No.2075 of 2010 (Arising out of S.L.P.(C) No.10965 of 2009) [Oriental Aroma Chemical Industries Ltd., Vs. Gujarat Industrial Development Corporation & Another] 5. Per contra, the plea of the learned counsel for the respondent/defendant is that the petitioner/plaintiff prolonged the case till the year 2003. Gujarat Industrial Development Corporation & Another] 5. Per contra, the plea of the learned counsel for the respondent/defendant is that the petitioner/plaintiff prolonged the case till the year 2003. In the year 2003, the respondent suffered with brain problem called Acute Subdural Hematoma Gross Midline Shift due to head injuries. The respondent was admitted and operated on 16.10.2003 and discharged in December, 2003. After recovery in March, 2004, the counsel for the respondent before the court below informed the respondent that the suit was dismissed for default. Since the respondent was in need of money for his treatment, he sold the suit property on 16.05.2006 to one Mohan and the said Mohan had sold the property to another person and so on. Moreover, the petitioner's advocate clerck instead of making a note that the suit was decreed as exparte, he wrongly noted as dismissed for default, therefore, the delay has occured and the same has rightly been condoned by the court below, thereby pleaded to dismiss the present Revision Petition. 6. Besides the above, the learned counsel for the respondent has relied on the following Judgments in support of his case. (i) Judgment of the Hon'ble Supreme Court in C.A.Nos.1892 of 1990 & 1893 of 1990 [Wander Limited and Another Vs. Antox India P. Ltd.,] reported in CDJ 1990 SC 365. (ii) Judgment of the Hon'ble Supreme Court in Civil Appeal No.4507 of 2019 @ S.L.P.(c) No.35428 of 2017 [Robin Thapa Vs.Rohit Dora] reported in CDJ 2019 SC 775 (iii) Order of this Court in C.R.P.No.4112 of 2019 [N.Jeyaraj Vs. K.Palanisamy] reported in CDJ 2021 MHC 2769 (iv) Order of this Court in C.R.P.(NPD) No.3463 of 2013 & M.P.No.1 of 2013 [Mariyaselvam Vs. Hemasanthi & another]. 7. Heard the learned counsel on either side and perused the documents produced on record carefully. 8. It is the contention of the respondent that the respondent/defendant suffered with Acute Subdural Hematoma Gross Midline Shift due to head injuries and the surgery was performed on 16.10.2003 and was discharged from the hospital during December, 2003. After recovery, during March, 2004, their counsel informed that the suit was dismissed for default. In the meanwhile, the respondent, in need of money for his treatment, sold the property to one V.Mohan on 16.05.2006. In turn, the said V. Mohan sold the property to one Chellakutty on 18.06.2007, thereafter, the said Chellakutty sold the same to one Deivasagayam. After recovery, during March, 2004, their counsel informed that the suit was dismissed for default. In the meanwhile, the respondent, in need of money for his treatment, sold the property to one V.Mohan on 16.05.2006. In turn, the said V. Mohan sold the property to one Chellakutty on 18.06.2007, thereafter, the said Chellakutty sold the same to one Deivasagayam. When the said 4th purchaser tried to take possession of the suit property, the same was resisted by the respondent/plaintiff. Further, on verification of case records, it came to light to the respondent that the advocate clerck wrongly noted as dismissed for default instead of noting that the suit is decreed ex-parte. 9. Though the reasons given by the respondent that under the guise of dismiss for default, he remainded silence and he came to know about the fact of exparte decree passed in the year 2003 only after operation in the year 2004, does not appear to be reasonable and no documents have been filed to substantiate that the respondent/defendant had suffered with the above said ailments, considering the fact that the suit is filed for declaration to declare the respondent/plaintiff's title to C,D,E and F Portion and also to declare the sale deed dated 22.01.1996 purported to be executed by the petitioner/plaintiff in favour of the respondent/defendant as ab initio and taking note of the fact that the suit property was transfered to many subsequent purchasers, until the dispute regarding the sale deed dated 22.01.1996 is not solved, there could not be peaceful possession by any of the party and the litigants will not be benefitted if the issue is not solved and the same can only be solved by letting in proper evidence, only on the said sole ground alone and to avoid multiplicity of proceedings and to secure the interest of the subsequent purchasers, this Court is inclined to condone the delay of 2155 days in filing the petition to set aside the ex-parte decree in the suit by directing the respondent/defendant to pay a sum of Rs.30,000/- [Rupees thirty thousand only] as cost, to the petitioner through their counsels within a period of four weeks from the date of receipt of copy of this order. If the petition is not allowed, definitely, the subsequent purchasers will approach the court and it will accumulate multiplicity of proceedings. 10. If the petition is not allowed, definitely, the subsequent purchasers will approach the court and it will accumulate multiplicity of proceedings. 10. In view of the above, the present Civil Revision Petition is disposed of with the above said direction. The order passed by the court below in I.A.No.85 of 2010 dated 12.09.2019 is modified to the extent indicated above and the suit in O.S.No.112 of 1998 is restored to file. Further, parties are directed to include the subsequent purchasers as party to the suit proceedings in order to decide the issue. No costs.