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R. Vimala and Another Vs. S. Manivannan and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.R.P(NPD)(MD)No. 2024 of 2016 & C.M.P(MD)No. 9522 of 2016
Judge
AppellantR. Vimala and Another
RespondentS. Manivannan and Another
Excerpt:
.....application in i.a.no.173 of 2015 to condone the delay in filing the petition to set aside the exparte decree, dated 12.03.2014 and also filed another application under order 9 rule 13 to set aside the ex-parte decree. the above said application was allowed by the court below subject to the condition that the petitioner shall pay a sum of rs.1,000/- to the respondents on or before 01.06.2015 and further posted for compliance on 02.06.2015. 3. according to the petitioner, that the date of compliance has been wrongly noted by the advocate clerk. hence, due to inadvertence, he could not comply with the order passed by the court below. therefore he filed an application in i.a.no.327 of 2015 to set aside the order passed in i.a.no.173 of 2015, dated 04.06.2015. along with the said.....
Judgment:

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, praying this Court to set aside the fair and decretal order made in I.A.No.327 of 2015 in I.A.No.173 of 2015 in O.S.No.99 of 2013, dated 30.10.2015, on the file of the III Additional District Judge, Trichy.)

1. This revision has been filed seeking for a direction to set aside the fair and decretal order made in I.A.No.327 of 2015 in I.A.No. 173 of 2015 in O.S.No.99 of 2013, dated 30.10.2015, on the file of the III Additional District Judge, Trichy.

2. The respondents herein filed O.S.No.99 of 2013 before the III Additional District Court, Trichy, for the relief of recovery and for possession. In the aforesaid suit, the Petitioners were set ex-parte on 12.03.2014. As the Petitioners/defendants have not filed written statement, the said suit was decreed ex-parte on the same date. Thereafter, the Petitioner has filed an application in I.A.No.173 of 2015 to condone the delay in filing the petition to set aside the exparte decree, dated 12.03.2014 and also filed another application under Order 9 Rule 13 to set aside the ex-parte decree. The above said application was allowed by the Court below subject to the condition that the Petitioner shall pay a sum of Rs.1,000/- to the respondents on or before 01.06.2015 and further posted for compliance on 02.06.2015.

3. According to the Petitioner, that the date of compliance has been wrongly noted by the Advocate Clerk. Hence, due to inadvertence, he could not comply with the order passed by the Court below. Therefore he filed an application in I.A.No.327 of 2015 to set aside the order passed in I.A.No.173 of 2015, dated 04.06.2015. Along with the said application, the Petitioner has also filed an application under Order 9 Rule 13 of C.P.C to set aside the ex-parte decree. Thereafter, the application in I.A.No.327 of 2015 to restore I.A.No.173 of 2015 was dismissed on 30.10.2015. Against the aforesaid order, the present C.R.P has been filed.

4. Per contra, the learned counsel for the respondents would submit that the Petitioner has filed the suit in the year 2013 for the relief of declaration and for recovery of possession against the respondents herein and the said suit was decreed ex-parte. Thereafter, the petitioners have filed application to set aside the exparte decree along with an application under Section 5 of the Limitation Act. Even if the Petition was allowed, the Petitioner was not diligent enough to comply with the order. Therefore the trial Court has rightly rejected the aforesaid application filed by the Petitioner. Hence, this Court does not want to interfere with the order of the Court below.

5. Heard the learned counsel for the Petitioners as well as the respondents and perused the materials on record.

6. It is an admitted fact that the suit has been filed before the III Additional District Court, Trichy for declaration and for recovery of possession. The revision Petitioner has not filed any written statement and he was set ex-parte on 12.03.2014 and ex-parte decree was passed by the trial Court. Hence the Petitioner has filed I.A.No.173 of 2015 to condone the delay in filing the application to set aside the ex-parte decree. The aforesaid application was allowed subject to the payment of Rs.1,000/- towards costs to the respondents herein. The said order was not complied with by the revision Petitioners. Hence the trial Court has dismissed the said application for non-compliance of the said order. The revision Petitioners have submitted that due to in-advertence of the Advocate Clerk of the Petitioners Office, wrongly noted the day for compliance of the conditional order passed by the Court below. Therefore, the mistake is neither wilful nor wanton but due to the above said bona-fide reason. However, taking into consideration of the facts and circumstances of the case, it is appropriate for this Court to enhance the cost amount to Rs.5,000/- to be payable by the Petitioners to the respondents herein.

7. The learned counsel for the respondents also undertakes to pay the costs to the learned counsel for the respondents within two days from today.

8. Hence, in view of the above submission, this Court is inclined to pass the following order:

The order passed in I.A.No.327 of 2015 in I.A.No.173 of 2015 in O.S.No.99 of 2013, dated 30.10.2015, on the file of the III Additional District Court, Tiruchirappalli is hereby set aside and the application in I.A.No.173 of 2015 in O.S.No.99 of 2013 is restored to file, subject to the payment of cost of Rs.5,000/- to the respondents herein within a period of two days from today. On such payment, the trial Court is directed to dispose of the application in I.A.No.173 of 2015 in O.S.No.99 of 2013 and pass appropriate orders on merits and in accordance with law.

9. With the above directions, the Civil Revision Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.

10. Post the matter for reporting compliance on 07.10.2016.


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