Vijaya vs M. Selvaraj

G. Rajasuria, J.—Inveighing the order dated 18.8.2008 passed in I.A. No. 873 of 2007 in O.S. No. 271 of 2005 by the Principal District

Munsif, Namakkal, this civil revision petition is focused.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:

(i) The Respondent herein filed the suit for declaration and for injunction in respect of the house property, which happened to be the suit property.

The revision Petitioner herein, who happened to be Defendant, remained ex-parte. Subsequently, the revision Petitioner filed the application to get

the ex-parte decree set aside along with the application to get the delay of 728 days condoned in filing such application. On contest, the lower

Court dismissed the said application.

Being aggrieved by and dissatisfied with the said order passed in the LA., this civil revision petition is focussed on the following grounds:

(i) The trial Court could have given one more opportunity to the Defendant to contest the matter, as this is a matter between the brother and sister

and that too with regard to the immovable property.

(ii) The lower Court failed to take into consideration the illiteracy of the Petitioner/Defendant and also a relationship of the Petitioner with that of

the Respondent herein and also the fact of the Respondent having hoodwinked the Petitioner.

Heard both sides.

The learned Counsel for the Petitioner reiterating the grounds would pray for viewing the matter leniently and condoning the delay in filing the

application to get set aside the ex-pare decree even on terms.

Whereas, the learned Counsel for the Respondent would submit that the Respondent/Plaintiff is in possession of the suit property on the strength

of the Will executed by the original owner and the Petitioner/Defendant is not at all in any way connected with the suit property and she is also not

in possession of it and that was why she allowed the ex-parte decree to remain in force for such a long time and only as an after thought, she did

choose to file the application to get the delay condoned to protract the proceedings and to harass the Respondent/Plaintiff.

The point for consideration is as to whether there is any justification in condoning the delay in filing the application to get the ex-parte decree set

aside and whether there is any infirmity in the order passed by the lower Court.

Ex facie and prima facie it is clear that the Respondent is the brother of the Petitioner. It is the contention of the Petitioner herein that the original

owner of the property was the aunt of both the parties and that she executed a settlement deed in favour of the Petitioner. Whereas, the

Respondent/Plaintiff would content that the property belonged to the uncle of both the parties and that he executed a ''Will'' and after his death, the

Respondent/Plaintiff became the owner of the property and he has been in possession and enjoyment of the same.

As such, in view of the rival contentions, I feel that there is some serious dispute between the parties. In such a case, taking into consideration

the nearness of relationship between the parties and the rival contentions over the immovable property, a lenient view could be taken to condone

the delay instead of taking a strict view. However, in view of the enormous delay, the Respondent/Plaintiff should be compensated by awarding

cost.

It appears, the lower Court took a strict view and dismissed the petition for getting the delay condoned in filing the application to get set aside

the ex-parte decree. Hence, in these circumstances, the revision is allowed, setting aside the order of the lower Court and consequently allowing

the said LA. for getting the delay of 728 days condoned, subject to the condition that on or before 23.6.2010, a sum of Rs. 3,000/- (rupees three

thousand only) should paid by the Petitioner herein to the Respondent/Plaintiff, whereupon alone the said I.A. No. 873 of 2010 shall stand

allowed, as otherwise, this revision shall stand dismissed and this order will not enure to the benefit of the Petitioner.

The civil revision petition is ordered accordingly. No costs.