Allowed

P.Vadivel v. R.Selvakumar

Madras HC6 Dec 2018CRP/3057/2018

Case brief

AI extract

What is this about?

This revision petition challenges the rejection of an application to condone a 254-day delay in setting aside an ex parte decree. The High Court set aside the impugned order, held that the delay can be condoned as the petitioner raised a bona fide defence regarding the non-execution of a sale agreement, and directed expeditious disposal of the suit within six months.

What did the court decide?

The impugned order rejecting the application to condone delay is set aside; the delay is condoned; the Civil Revision Petition is disposed of; the trial court must dispose of the suit within six month

P.Vadivel Vs R.Selvakumar — Specific Performance | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.12.2018

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CORAM

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THE HONOURABLE MR. JUSTICE M.S. RAMESH

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C.R.P.(NPD).No.3057 of 2018 & C.M.P.No.17725 of 2018

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P.Vadivel, S/o.Palanisamy, No.7/101 B, Mel Kathavukkarai, Karegoundanpalayam, Annur Taluk, Coimbatore District. ... Petitioner Vs. 1. R.Selvakumar, S/o.K.R.Ramasamy, D.No.3/6, Rajammal Layout, Murugampalayam, Tirupur South Taluk, Tirupur District.

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S.Easwaramurthy, S/o.R.Sennaippan, No.414/A, Aravindar Colony, Karamadai, Mettupalayam Taluk, Coimbatore District. ... Respondents

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PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, praying to set aside the order dated 23.08.2018 passed in I.A.No.76 of 2018 in O.S.No.410 of 2016 pending on the file of the I Additional District Judge, Coimbatore.

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For Petitioner : Mr.A.V.Raja For R1 & R2 : Mr.S.Kumaresan

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http://www.judis.nic.in

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O R D E R

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The petitioner herein, who was set exparte in a suit for

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specific performance, for non-filing of the written statement, has filed the present revision petition. The order under challenge is the rejection of his application, seeking to condone the delay of 254 days

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in filing the application to set aside the exparte decree.

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2. The reason assigned by the petitioner herein is that the

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petitioner was not aware of the exparte decree and only after they received the summons in the execution proceedings, he had taken note of the same. According to the learned counsel for the petitioner, he has a valid defence in the suit. In the written statement which he

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had produced along with the application to set aside the exparte decree, he has taken a defence that he had not executed the sale agreement and that the property in question was given only as a security for a loan obtained by him.

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3. This aspect is a stoutly denied by the counsel for the respondent herein, who submits that the sale agreement was a registered sale agreement and that though he was ready and willing to perform his part, the respondent herein had not come forward and therefore, he had filed the present suit. The Court below by stating

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http://www.judis.nic.in

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that each and every day's delay was not been properly explained, had rejected the application filed under Section 5 of the limitation Act.

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4. On a perusal of the order passed by the Court below, it cannot be said that there is an infirmity in the order. The Court had taken into consideration of the lethargic attitude in which the petitioner has caused delay in filing the application to set aside the exparte decree. However, it was the view of the trial Court that the merits of the case need not be looked into while dealing with an application to condone the delay.

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5. No doubt the delay is inordinate in nature.

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Nevertheless, when the petitioner had taken his defence that he had neither executed the sale agreement and that the document was only for the purpose of securing a hand loan given by the respondent herein, such pleadings can be taken into consideration while dealing with the application under Section 5 of the Limitation Act, which proposition has been well established in various judgments of this Court as well as the Hon’ble Apex Court.

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6. In the light of the above observations, I am of the view

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http://www.judis.nic.in

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that the petitioner can be given one more opportunity to defend the suit.

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7. Accordingly, the order passed by the learned I Additional District Judge, Coimbatore, in I.A.No.76 of 2018 in O.S.No.410 of 2016, dated:23.08.2018, is hereby set aside. Consequently, the delay of 254 days in filing the application to set aside the exparte decree stands condoned.

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8. By taking into consideration that the suit is pending

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from the year 2016 onwards, the trial Court shall disposed of the same as expeditiously as possible, in any event, within a period of six months, from the date of receipt of a copy of this Order. Accordingly, the Civil Revision Petition is ordered. Consequently, connected Miscellaneous Petition is also closed. No costs.

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06.12.2018

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bsm Index : Yes/No Speaking/Non-speaking order

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To,

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The Learned I Additional District Judge, Coimbatore.

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M.S.RAMESH.J,

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http://www.judis.nic.in

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bsm

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C.R.P.(NPD).No.3057 of 2018
06.12.2018

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http://www.judis.nic.in

P.Vadivel v. R.Selvakumar

Case brief

What is this about?

What did the court decide?

P.Vadivel v. R.Selvakumar

Case brief

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