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2024 DIGILAW 2606 (MAD)

Elumalai S/o. Arunachalam v. Malikambal W/o. Raj

2024-11-15

R.SAKTHIVEL

body2024
ORDER : This Civil Revision Petition is directed against the Order and Decree dated March 15, 2023 passed in I.A.No.148 of 2022 in O.S.No.156 of 2015 on the file of 'Additional District Munsif, Tindivanam' [henceforth 'Trial Court']. 2. The revision petitioner is the defendant and the respondents are the plaintiffs in the Suit in O.S.No.156 of 2015 before the Trial Court. 3. For the sake of convenience, hereinafter the parties will be referred to as per their array before the Trial Court. 4. The plaintiffs filed a Suit for declaration and permanent injunction. In the said Suit, the defendant filed written statement. Thereafter, the defendant allowed the Suit ex-parte and ex-parte decree was passed on July 1, 2019. The said ex-parte decree was set aside vide order dated September 18, 2020. Thereafter, when the Suit was posted for cross examination of P.W.1 and P.W.2 on April 9, 2021, the revision petitioner/defendant did not appear and cross examine the witnesses. Hence, an ex-parte decree was passed on July 15, 2021. 5. The revision petitioner/defendant filed an Interlocutory Application in I.A.No.148 of 2022 in O.S.No.156 of 2015 under Section 5 of the Limitation Act, 1963 praying to condone the delay of 158 days. The Trial Court, after hearing both sides, dismissed the said Interlocutory Application stating that the main Suit is pending for more than seven years and no acceptable reason was assigned by the revision petitioner/defendant to condone the delay of 158 days. 6. Mr.K.Mohammed Hydher Ali for Mr.D.Ravichander, learned Counsel for the revision petitioner has submitted that the revision petitioner was suffering from COVID-19 and hence, he could not appear before the Trial Court and give suitable instructions to his counsel to cross examine P.W.1 and P.W.2. The learned counsel has brought to the notice of this Court the Judgment of the Hon'ble Supreme Court in In Re: Cognizance for Extension of Limitation [Suo Motu Writ Petition (C) No.3 of 2020] and prayed this Court to allow the Civil Revision Petition. 7.Per contra, Mr.K.Sridhar, learned Counsel for the respondents has submitted that the plaintiffs filed a Suit for declaration and injunction. The plaintiffs trace their title through the Sale Deed dated April 24, 1940. The defendant has no right to the Suit Properties. However, he attempted to interfere with the plaintiffs' possession and enjoyment of the Suit properties. Hence, the Suit for declaration and injunction was filed. The plaintiffs trace their title through the Sale Deed dated April 24, 1940. The defendant has no right to the Suit Properties. However, he attempted to interfere with the plaintiffs' possession and enjoyment of the Suit properties. Hence, the Suit for declaration and injunction was filed. In the said Suit, the defendant, only with an intention to delay the proceedings, allowed the Suit ex-parte. There is no merit in the said Interlocutory Application. The reason assigned by the defendant/revision petitioner is not bonafide. The Trial Court after considering the entire facts and circumstances of the case, dismissed the said Interlocutory Application and hence, there is no warrant to interfere with the same. 8. This Court has considered the submissions made on either side. 9. In an earlier occasion, the Suit was decreed ex-parte. At the instance of the revision petitioner / defendant, ex-parte decree was set aside on September 18, 2020. Again, when the matter was posted for cross examination of P.W.1 and P.W.2, the defendant side was not ready to cross examine the plaintiffs' side evidence. Hence, ex-parte decree was again passed on July 15, 2021. After 158 days, the revision petitioner/defendant filed an Interlocutory Application under Section 5 of the Limitation Act, 1963 to set aside the ex-parte decree. The revision petitioner/defendant did not state any acceptable reason to condone the delay. Further, there is no evidence available on record to show that the revision petitioner / defendant was affected by COVID-19 during that period. 10. However, considering the nature of the Suit and also considering the state of affairs that prevailed on July 15, 2021, i.e., COVID-19 Pandemic situation and also considering the judgment of the Hon'ble Supreme Court in In Re: Cognizance for Extension of Limitation [Suo Motu Writ Petition (C) No.3 of 2020] and in the interest of justice, this Court is inclined to allow the Civil Revision Petition, however, subject to payment of cost of Rs.3,000/- (Rupees Three Thousand Only) payable by the revision petitioner/defendant to the respondents/plaintiffs by way of demand draft on or before 05.12.2024. The petitioner/defendant shall handover the Demand Draft either directly to the respondent/plaintiff or shall send through Registered Post with acknowledgement. 11. Post the matter on 06.12.2024.