J. Premakumari Wife of D. Melvin Prabha v. K. Thirumoorthy Son of Late G. Kathirvelu
2024-11-13
R.SAKTHIVEL
body2024
DigiLaw.ai
ORDER : R.Sakthivel, J. PRAYER IN CRP NO.779 OF 2023: Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the fair Order and decretal Order dated March 5, 2021 passed in I.A.No.3 of 2020 in O.S.No.420 of 2019 on the file of III Additional District Judge, Tiruvallur at Poonamallee. PRAYER IN CRP NO.780 OF 2023: Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the fair Order and decretal Order dated August 24, 2022 passed in I.A.No.5 of 2021 in I.A.No.3 of 2020 in O.S.No.420 of 2019 on the file of III Additional District Judge, Tiruvallur at Poonamallee. These Civil Revision Petitions are directed against the fair and decretal Orders passed in I.A.No.3 of 2020 dated March 5, 2021 and I.A.No.5 of 2021 dated August 24, 2022, in O.S.No.420 of 2019 on the file of ‘III Additional District Judge, Thiruvallur at Poonamallee' ['Trial Court' for short]. 2. In both these Civil Revision Petitions, the parties are one and the same. In both, the revision petitioner is the defendant while the respondent is the plaintiff in O.S.No.420 of 2019 on the file of Trial Court. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit. Brief Facts 3. Brief facts are that the plaintiff filed the Suit in O.S.No.420 of 2019 for specific performance of the Sale Agreement dated February 21, 2013. Along with the plaint, the plaintiff filed I.A.No. 2 of 2019 seeking interim order against the defendant not to alienate or encumber the Suit Property. The said Suit and the said Interlocutory Application were posted on December 19, 2019 and summon and notice were duly served respectively for the said hearing date. Since the defendant failed to appear, the defendant was called absent and ex-parte on that day viz., December 19, 2019 in both. 4. Thereafter, the defendant filed I.A.No.3 of 2020 in the main Suit as well I.A.No.4 of 2020 in I.A.No.2 of 2019, both under Order IX Rule 7 of Code of Civil Procedure, 1908 ['CPC' for short], praying to set aside the ex-parte Orders passed in the main Suit and in the said Interlocutory Application respectively.
4. Thereafter, the defendant filed I.A.No.3 of 2020 in the main Suit as well I.A.No.4 of 2020 in I.A.No.2 of 2019, both under Order IX Rule 7 of Code of Civil Procedure, 1908 ['CPC' for short], praying to set aside the ex-parte Orders passed in the main Suit and in the said Interlocutory Application respectively. Both the afore-said Interlocutory Applications were heard and were allowed, by a common Order on March 17, 2020, on the condition that the defendant shall pay a sum of Rs. 500/-in each Interlocutory Application, to the plaintiff on or before April 3, 2020, failing which the petition shall stand dismissed. The said common Order was not complied with and hence, the said Interlocutory Applications were dismissed on March 5, 2021. 5. Thereafter, the defendant filed I.A.Nos.5 and 6 of 2021, praying to restore Interlocutory Applications in I.A.Nos.3 and 4 of 2020 respectively under Order IX Rule 9 of CPC. A common Order was passed on August 18, 2022 in I.A.Nos.5 and 6 of 2021 allowing the said Interlocutory Applications on payment of Rs.500/- in each Interlocutory Application, to the plaintiff, on or before August 23, 2022. Since the same was not complied with, they were dismissed on August 24, 2022. 6. Now the defendant is before this Court through the C.R.P.Nos.779 and 780 of 2023, praying to set aside the fair and decretal Orders passed in the said I.A.No.3 of 2020 and I.A.No.5 of 2021 respectively. Arguments 7. Mr.G.Madhan Raj, learned Counsel for the revision petitioner / defendant submits that the Counsel for the defendant before the Trial Court, was little bit late to the Trial Court on the date of hearing of the main Suit viz., December 19, 2019 and therefore, he could not file Vakkalat. Hence, the defendant was called absent and set ex-parte. He would further submit that, the defendant could not comply with the Order dated March 17, 2020 passed in I.A.No.3 of 2020 due to the Covid-19 situation and therefore, the I.A.No.3 of 2020 was dismissed on March 5, 2021. Thereafter, the defendant filed I.A.No.5 of 2020 to restore the I.A.No.3 of 2020. The said petition was ordered on payment of costs of Rs.500/- to the defendant vide common order dated August 18, 2022.
Thereafter, the defendant filed I.A.No.5 of 2020 to restore the I.A.No.3 of 2020. The said petition was ordered on payment of costs of Rs.500/- to the defendant vide common order dated August 18, 2022. But, the defendant could not comply with the Order dated August 18, 2022 passed in I.A.No.5 of 2020 due to medical reasons and therefore, the same was dismissed on August 24, 2022. He would submit that there is no mala fide intention in the non-compliance of the said Orders and that the defendant is ready to obey the Orders of this Court. Accordingly, he prays to allow these Civil Revision Petitions. 8. Mr.Praveen for Mr.Appaswamee, learned Counsel on record for the respondent / plaintiff submits that there is no merit in these Civil Revision Petitions and that they are filed only with a view to drag on the proceedings, which is evident from the conduct of the defendant. Accordingly, he prays to dismiss these Civil Revision Petitions. Discussion and Decision 9. This Court has heard either side and perused the materials available on record. 10. Hon'ble Supreme Court in In re : Cognizance for Extension of Limitation reported in (2022) 3 SCC 117 , considering the challenges faced by the litigants, held that the period between March 15, 2020 and February 28, 2022 shall be excluded while reckoning the period of limitation in respect of all judicial and quasi-judicial proceedings. This Court is of the view that from March 15, 2020 to February 28, 2022 is a period of extraordinary circumstances warranting a compassionate approach towards litigants. Any adverse Order passed in the absence of the party against whom it is made or any non-compliance shall not be viewed rigidly. The Order in I.A.No.3 of 2020, since it is passed on March 5, 2021 i.e., during the period of extraordinary circumstances, is liable to be set aside. 11. As regards, I.A.No.5 of 2021, though the reason assigned by the defendant for non-compliance with the Order dated August 18, 2022 is not satisfactory, with a view to adhere to the principles of natural justice and offer one more opportunity to the defendant, and also in the interest of justice, this Court is inclined to set aside the Order dated August 24, 2022 passed in I.A.No.5 of 2021, however subject to payment of costs as stated infra. 12.
12. In view of the foregoing narrative, the Civil Revision Petitions shall stand allowed on payment of Rs.3,000/- (Rupees Three Thousand Only) in each Civil Revision Petition to the respondent / plaintiff by way of demand draft or in cash on or before December 12, 2024. 13. Call on December 12, 2024 ‘for reporting compliance’.