Sellamuthu v. Palanisamy

O R D E R The present Civil Revision Petition has been filed by the petitioner under Section 115 of C.P.C., against the fair and decreetal order in I.A.No.47 of 2016 in O.S.No.65 of 2005, on the file of the Sub Court, Thuraiyur, dated

29.01.2018.

¶2The petitioner is the defendant and the respondent is the plaintiff before the trial Court. The plaintiff has filed a suit for the relief of declaration in respect of the "B" schedule property and in the alternative, sought for the prayer of partition.

¶3It appears that an exparte decree was passed in the said suit on

15.11.2005. Against which the petitioner herein has filed an application to set aside the exparte decree along with an application for condonation of delay of 1956 days. The reason alleged in the affidavit, is that though he was served a summon and notice, since he has misplaced the summons, he could not appear before the Court. And when he was once again served summons in the execution petition, he came to know about the pendency of the case and filed the connected application to set aside the exparte decree with a delay of 1956 days. Hence, he prayed to condone the delay.

¶4However, the respondent objected the application on the ground that he is differently-abled person and having disability of 65%, and that after exparte decree, he has also filed necessary application before the Tahsildar for patta transfer, in which, this petitioner was given notice. It was also further submitted that since the petitioner herein objected, he has given a police complaint against the petitioner, informing about the exparte decree.

¶5It is the further contention of the respondent that, according to affidavit, the allegation of the petitioner is that though he has received summons, summons have been misplaced, hence he could not appear before the trial Court. But contrary to the averment in the affidavit he has engaged a counsel before the trial Court, and only upon the ground of non-filing of written statement, an exparte decree was passed. Hence, he prayed to dismiss the application.

¶6Before the trial Court, on the side of the petitioner, two witnesses were examined and no documents were marked. However, on the side of the respondent, two witnesses were examined and 11 documents were marked as Ex.R1 to R.11.

¶7The learned trial Judge, after considering the either side submissions, has dismissed the application on the ground that the delay on the part of the petitioner was wanton.

¶8The learned counsel for the petitioner would submit that aggrieved with the order of the trial Court, the petitioner has come forward with the instant application. He would further submit that the petitioner and the respondent are brothers and that the petitioner has got a very good case and delay was neither wilful nor wanton.

¶9However, the learned counsel for the respondent would submit that even after the exparte decree, the petitioner was put on notice about the exparte decree by sending a separate notice, and that very conduct of the petitioner filing a false affidavit would disentitle him from any relief. Hence, he prayed to dismiss the application.

¶10This Court has given anxious consideration to the submissions of the learned counsel on either side.

¶11It is an admitted fact that the exparte decree was passed on

15.11.2005 and it is also an admitted fact that there was a delay of 1956 days. Now, he must find out, whether the reason assigned by the petitioner is bonafide, and whether the same would come within definition of "sufficient cause". Hence, the only reason assigned by the petitioner is that he misplaced his summons which resulted in his non-appearance. However, on perusal of the decree, which has been filed along with the typed set of papers on behalf of the defendant. This Court could find the appearance of the counsel on behalf of the defendant.

¶12To fortify the above finding, the learned trial Judge has extracted the evidence of the petitioner. Wherein it is stated as follows: "m.t vz;.65/2005 tof;F jhf;fy; nra;J mjpy; vdf;F rk;kd; te;jJ vd;W nrhd;dhy; rhp jhd;.

ehd;

jpUr;rpapYs;s

tof;fwpQh; jpU.Xk;gpufh\; vd;gtiu vd; tof;fwpQuhf epakdk; nra;Njd; vd;why; rhpjhd; 6 khjk; vjph; tof;Fiu jhf;fy; nra;tjw;fhf tha;jh Nghlg;gl;L gpd;dh; vjph; tof;Fiu jhf;fy; nra;ahjjhy; xUjiy gl;r cj;juT gpwg;gpf;fg;gl;lJ vd;why; rhpjhd;." Therefore, even according to the submission made by the petitioner himself, he has engaged the counsel. But he has referred a false reason in the affidavit as if he has misplaced the summons. At this juncture, the learned counsel for the respondent would invite the attention of this Court in respect of the Ex.R1, and the findings of the learned trial Judge in respect of Ex.R1 and Ex.R2. As per the findings, after the decree dated 15.11.2005, the respondent/plaintiff has sent two notices to the petitioner herein on 17.07.2016 and 15.03.2008 intimating the exparte decree. In spite of such intimation, the very conduct of the petitioner in not approaching the Court at once, would only project his dormant conduct. It is well settled principle of law that the Court would only help the vigilant person and not the dormant person. Furthermore, from the perusal of the counter statement, it appears that subsequent to the exparte decree, the respondent/plaintiff has also filed some applications before the Tahsildar and some mutation had taken place in the revenue records. Therefore, by the lethargic conduct of the defendant, in the interregnum period, a valuable right has also been accrued upon the plaintiff.

¶13Therefore, in such circumstances, this Court could not find any sufficient cause to condone the delay. The learned trial Judge also considered all aspects and rejected the delay condonation application. Therefore, this Court could not find any infirmity in the order passed by the learned trial Judge.

¶14In the result, this Civil Revision Petition stands dismissed. There shall be no order as to costs.

24.07.2023 NCC : Yes/No Index : Yes / No Internet : Yes / No ebsi To

¶1The Sub Court, Thuraiyur. C.KUMARAPPAN,J. ebsi C.R.P(NPD)(MD)No.1036 of 2018

24.07.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.07.2023 CORAM: THE HONOURABLE MR.JUSTICE C.KUMARAPPAN C.R.P.(NPD)(MD)No.1036 of 2018 Sellamuthu ... Petitioner/Petitioner/Defendant -vs- Palanisamy ... Respondent/Respondent/Plaintiff PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C., against the fair and decretal order in I.A.No.47 of 2016 in O.S.No.65 of 2005, on the file of the Sub Court, Thuraiyur dated 29.01.2018. For Petitioner : Mr.N.Anandakumar For Respondent : Mr.H.Murali Shankar