Dismissed

T.Manoharan v. Kolanthasamy

Madras HC3 Jul 2019CRP/2508/2014

Case brief

AI extract

What is this about?

The High Court dismissed this civil revision petition. The Single Judge upheld the Trial Court's decision rejecting the petitioner's application to set aside an ex parte decree due to a 904-day delay, noting the lack of documentary evidence and insufficient reasons for the condonation of delay.

What did the court decide?

Civil revision petition dismissed; no costs; consequently connected miscellaneous petition closed.

T.Manoharan Vs Kolanthasamy — Execution and Attachment | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 03.07.2019

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C O R A M

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THE HON'BLE Mr.JUSTICE ABDUL QUDDHOSE

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C.R.P.(NPD) No.2508 of 2014 &
M.P.No.1 of 2014
T.Manoharan ... Petitioner
Vs.
Kolanthasamy ... Respondent

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PRAYER: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the judgment and decree dated 29.04.2014 in I.A.No.1738 of 2012 in O.S.No.164 of 2009 on the file of the Principal District Munsiff Court, Bhavani, Erode.

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For Petitioner ... Mr.N.Karthikeyan

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For Respondent ... Mr.V.Regunathan

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ORDER

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The instant civil revision petition has been filed challenging the order dated 29.04.2014 passed by the learned Principal District Munsiff, Bhavani, Erode in I.A.No.1738 of 2012 in O.S.No.164 of 2009.

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http://www.judis.nic.in

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Brief facts leading to the filing of the instant revision:

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2. The petitioner is the defendant in the suit O.S.No.164 of

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2009 filed by the respondent seeking for delivery of possession of the suit

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schedule property from the petitioner/ defendant apart from seeking other reliefs. The petitioner/defendant received the suit summons and engaged an Advocate to defend the suit O.S.No.164 of 2009. However, he remained ex parte and thereafter, an ex parte judgment and decree dated 08.04.2010 came to be passed in favour of the respondent/plaintiff decreeing the suit O.S.No.164 of 2009 as prayed for. Thereafter, I.A.No.1738 of 2012 was filed by the petitioner/defendant seeking to condone the delay of 904 days in filing an application to set aside the ex parte decree dated 08.04.2010 passed in O.S.No.164 of 2009. The reason stated in the affidavit filed in support of I.A.No.1738 of 2012 is that he was suffering from serious illness including jaundice and further, he has

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stated that the respondent/plaintiff has approached the wrong forum as he himself has admitted that the petitioner/defendant was allowed to occupy the suit schedule property only as a tenant as contended in his plaint.

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http://www.judis.nic.in

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A counter affidavit was also filed by the respondent/plaintiff

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in I.A.No.1738 of 2012 denying the allegations contained in the affidavit

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filed in support of I.A.No.1738 of 2012. By order dated 29.04.2014, the

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Trial Court dismissed I.A.No.1738 of 2012 filed by the petitioner/defendant on the ground that no sufficient reasons have been given for condonation of inordinate delay of 904 days in filing an application to set aside the ex parte decree and also no documentary evidence has been produced by the petitioner/defendant to condone the said inordinate delay. Aggrieved by the dismissal of I.A.No.1738 of 2012 in O.S.No.164 of 2009, the instant civil revision petition has been filed

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under Section 115 of Code of Civil Procedure.

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Heard Mr.N.Karthikeyan, learned counsel for the petitioner

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and Mr.V.Regunathan, learned counsel for the respondent.

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Discussion:

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5. It is an admitted fact that the petitioner/defendant received

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the suit summons in O.S.No.164 of 2009 and had also entered appearance

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through an Advocate in the said suit. However, he remained ex parte

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http://www.judis.nic.in

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thereafter and an ex parte decree dated 08.04.2010 came to be passed against the petitioner/defendant, since the petitioner/defendant failed to appear either by himself or through his counsel before the Trial Court, subsequent to the filing of the written statement by him.

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The suit was filed for recovery of possession by the

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respondent/plaintiff against the petitioner/defendant and the respondent/plaintiff claims absolute right over the suit schedule property by virtue of a registered sale deed dated 15.11.2006 executed by the power of attorney of the petitioner/defendant in his favour. Admittedly, the sale deed has not been challenged before any Court of law by the petitioner/defendant, even though it is the contention of the petitioner/defendant that no such sale deed was executed in favour of the respondent/plaintiff. Based on the registered sale deed dated 15.11.2006, the respondent/plaintiff had filed the suit seeking for recovery of possession from the petitioner/defendant.

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As observed earlier, the petitioner/defendant received the suit summons and having entered appearance in the suit through an

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http://www.judis.nic.in

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Advocate and having filed the written statement, ought to have been vigilant in defending the suit on merits. However, in the instant case, the petitioner/defendant filed the application to condone the delay of 904 days in filing an application to set aside the ex parte decree dated 08.04.2010, based on the averment that he came to know about the ex parte decree only after the receipt of notice in the execution petition filed by the respondent/plaintiff.

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If really the petitioner/defendant was interested in defending the suit on merits, that too, where the petitioner/defendant pleads that he was inducted only as a tenant and that the respondent/plaintiff has approached the wrong forum by filing the suit before the Civil Court in stead of going before the rent controller, he should have been vigilant and in constant touch with his Advocate who entered appearance on his behalf before the Trial Court and also filed his written statement.

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As seen from the affidavit filed in support of I.A.No.1738 of 2012, the petitioner/defendant has not given any explanation as to the period from the date of passing of the ex parte decree till the date of filing of the application to condone the inordinate delay in filing an

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http://www.judis.nic.in

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application to set aside the ex parte decree. The petitioner/defendant

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has also alleged in the affidavit filed in support of I.A.No.1738 of 2012 that he was suffering from serious illness which included jaundice, however, no documentary evidence has been produced to establish his illness before the Trial Court.

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The Trial Court has considered all these factors and only

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thereafter, has dismissed the application filed by the

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petitioner/defendant as sufficient reasons have not been given to

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condone the inordinate delay of 904 days.

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Conclusion:

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This Court is in agreement with the view taken by the Trial

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Court and does not find any merit in this revision. Accordingly, the civil

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revision petition is dismissed. No costs. Consequently connected miscellaneous petition is closed.

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03.07.2019

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Index : Yes / No Internet: Yes/No Speaking/Non-Speaking orders

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http://www.judis.nic.in

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The Principal District Munsiff Court, Bhavani, Erode.

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ABDUL QUDDHOSE. J,

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http://www.judis.nic.in

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CRP (NPD) No.2508 of 2014
03.07.2019

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http://www.judis.nic.in

T.Manoharan v. Kolanthasamy

Case brief

What is this about?

What did the court decide?

T.Manoharan v. Kolanthasamy

Case brief

What is this about?

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