Govindasamy vs Dhandapani, Karthikeyan and Jayavel

T. Mathivanan, J.—This memorandum of Civil Revision is directed as against the fair and decreetal order dated 22.10.2007 and made in I.A. No. 489/2007 in O.S. No. 17/1999 on the file of the learned District Munsif cum Judicial Magistrate, Uthangarai. It is manifested from the records that the revision petitioner had filed the suit in O.S. No. 17/1999 on the file of the learned District Munsif cum Judicial Magistrate, Uthangarai as against the respondents herein and one Angappa Mudaliar who is none other than the brother of 1st respondent, Dhandapani and thereby sought the relief of declaration of his title to the suit property and also for permanent injunction.

It is pertinent to note that the suit was filed in the year 1999. The respondents herein had not chosen to appear in the suit despite service of summons and they had also not filed their respective written statements and on account of this reason, the suit was decreed ex parte on 30.10.2000. Then, it is also revealed that the first defendant had passed away after the decree was passed. Thereafter, the respondents 1 to 3 herein had filed an application in I.A. No. 489/2007 to condone the delay of 1697 days in filing an application to set aside the decree and this petition was also resisted by the revision petitioner by filing his counter. However, the learned trial Judge has proceeded to allow the application on the ground that an opportunity might be given to the defendants to contest the suit. Challenging the order of the learned Trial Judge dated 22.10.2007, the revision petitioner being plaintiff stands before this court with this revision.

It may be noted from the revision petition that the respondents have not chosen to appear before this court despite the service of notice on them and the learned counsel for the petitioner, Mr. R. Asokan is able to demonstrate by producing the affidavit of service of notice on them. Therefore, it has become necessary for this court to dispose this revision petition on merit in the absence of the respondents.

Mr. R. Asokan, the learned counsel for the petitioner submitted that without going into the facts of the case, the learned Trial Judge had simply proceeded to allow the application saying that though sufficient cause was not shown, delay could be condoned for giving an opportunity to the defendants to contest the case. The learned Trial Judge has placed reliance upon the decision in (K. Thirumurthy and another Vs. Muthammal and others) reported in (2003) 3 MLJ 369.

In their affidavit, the respondents have stated that the 2nd and 3rd respondents have been working as a drivers and that they had not come to their house for about 4 or 5 months and that the 1st respondent herein being their father had been conducting tea shop where the festivals are conducted and that they were not aware of the fact of service of summons. They have also stated that they were not properly informed by their counsel about the decree passed in the above said suit on 30.10.2012.

It is also revealed from the affidavit that despite the suit was posted on 28.09.1990 and 17.10.2000 and 27.10.2000 for the purpose of filing written statement, they did not file the written statement; and ultimately, the suit was posted on 30.10.2007 for filing their written statement. Even then, they have not chosen to file their respective written statements and therefore, the suit was decreed ex parte for want of written statement.

The learned counsel for the petitioner, Mr. R. Asokan has pointed out that there is a delay of 1697 days, nearly 4 years and 10 months and after a very long and inordinate delay, the respondents being defendants had come forward with the above I.A. No. 489/2001 only for the purpose of protecting the proceeding. It is the settled principles of law that the delay is not the criteria; but the intention of the petitioner has to be considered. If the intention is mainly to protract the proceedings and to defeat the ends of justice, the principle of liberal approach cannot be made applicable in so far as this case is concerned.

The principle of liberal approach cannot be applied in this case, because the application has been filed nearly after 4 years and 10 months without showing any sufficient cause or proper explanation. This Court has carefully perused the averments of the affidavit, filed in support of the petition and the other materials available on record. Having regard to the related facts and circumstances of the case, this court does incline to allow the Revision Petition. Accordingly, this Revision Petition is allowed and the fair and decreetal order dated 26.10.2007 and made in I.A. No. 489/2007 are set aside and the petition in I.A. No. 489/2007 is dismissed with costs. Consequently, the connected miscellaneous petition is also closed.