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HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRA BAABU, J.
N.P. Srinivasan
Versus
S. Santhalakshmi
C.R.P.(NPD) No. 2980 of 2010 & C.R.P. (PD) No. 4223 of 2010 & M.P. No. 1 of 2010
Decided on: 08-02-2013
Delay Condonation - Setting Aside Ex Parte Decree - Limitation Act, Order 9 Rule 13 of C.P.C. - Section 5 of Limitation Act - [Limitation Act, Section 5, Order 9 Rule 13 of C.P.C.] - The court allowed the application under Section 5 of the Limitation Act seeking condonation of delay of 1828 days in filing a petition to set aside the ex parte decree. The court also allowed the application filed under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree. The respondent's explanation for the delay and non-service of summons was found satisfactory, and the court held that the delay was condonable. The court also found that the petitioner had played fraud on the court and set aside the ex parte decree for the parties to contest the matter on merits. The court referred to legal principles from N.Balakrishnan Vs. M.Krishnamurthy and Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai to support its decision.
Fact of the Case:
The plaintiff filed a suit seeking declaration of title and permanent injunction. The suit was decreed ex parte, and the respondent filed applications to condone the delay in filing a petition to set aside the ex parte decree and to set aside the ex parte decree under Order 9 Rule 13 of C.P.C. The respondent explained the delay by stating that she was incorrectly described in the plaint and was not served with any summons. The court found that the petitioner had played fraud on the court and set aside the ex parte decree for the parties to contest the matter on merits.
Finding of the Court:
The court found the respondent's explanation for the delay and non-service of summons satisfactory, and held that the delay was condonable. The court also found that the petitioner had played fraud on the court and set aside the ex parte decree for the parties to contest the matter on merits.
Issues: Delay Condonation, Setting Aside Ex Parte Decree, Fraud on the Court
Ratio Decidendi: The court held that the delay in filing the petition to set aside the ex parte decree was condonable based on the respondent's satisfactory explanation. The court also found that the petitioner had played fraud on the court and set aside the ex parte decree for the parties to contest the matter on merits.
Final Decision: The court dismissed the Civil Revision Petitions and directed the trial court to take up the suit and dispose of it on merits within a period of four months from the date of receipt of the order.
1. C.R.P.(NPD) No.2980 of 2010 is filed against the order dated 2.6.2010 in allowing the application filed under Section 5 of the Limitation Act seeking for condonation of delay of 1828 days in filing a petition to set aside the ex parte decree.
2. C.R.P.(PD) No.4223 of 2010 is filed against the order in allowing the application filed under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.
3. The petitioner herein is the plaintiff. He filed the said suit seeking for declaration of his title and for permanent injunction. The respondent herein is the first defendant in the said suit. On 20.12.2005, the suit was decreed exparte. The respondent filed an application in I.A. No. 134 of 2010 under Section 5 of the Limitation Act to condone the delay of 1828 days in filing the petition to set aside the ex parte decree. She also filed another application in I.A. No. 278 of 2010 under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.
4. Heard both sides and the records placed before this Court are perused.
5. The respondent filed an affidavit in support of her application seeking for condonation of the delay and explained the reasons for filing the application with such delay. It is stated in the affidavit that she was incorrectly described in the plaint as W/o Late Sivananda Mudaliar with incorrect address as if she was residing at No.15, Balaji Road, Krishna Nagar, Vellore, Vellore District, while she is only the daughter of the said Sivananda Mudaliuar.
6. The case of the respondent is that she was residing at Chennai long prior to 2005. The plaintiff and the second defendant seem to have stage managed to send the suit summons to her Vellore address and managed to get an endorsement, as if it could not be served as the door was locked on 21.6.2005. It is also stated by the respondent that the plaintiff again seems to have stage managed to send the suit summons and got an endorsement by the court processes server as if she refused to receive the summons. She was not residing in the suit house in Vellore long prior to 2005 and she was residing only at Chennai at the relevant point of time.
7. It is also stated by the respondent that the endorsements made by the process server are not true. They are collusively and falsely created endorsements. She had specifically stated that she had no knowledge of the filing of the suit and she was not served with any summons or summons with the suit plaint at any point of time. Even in the E.P. filed by the plaintiff, the respondent did not receive any notice. The endorsement made by the process server regarding the service of notice in the E.P. proceedings was also false. The plaintiff made an allegation in the plaint that the respondent had executed a letter dated 15.2.2005 and handed over the property to the plaintiff. This averment of the plaintiff is disputed by the respondent. It is the case of the respondent that only after perusing the court records on 25.1.2010, she came to know about the exparte decree passed and therefore she filed the application to condone the delay of 1828 days in filing the application to set aside the ex parte decree.
8. In the said application filed by the respondent notice was ordered on 5.3.2010 to the petitioner herein. Only on 29.4.2010, counsel for the petitioner herein as respondent in the said application entered appearance and sought time to file counter affidavit. Thereafter, the matter was posted on 2.6.2010 for filing counter. When the matter was taken up on 2.6.2010, the petitioner herein did not file counter and he was also called absent and thereby set ex parte. Consequently, the application in I.A. No. 134 of 2010 was allowed by the court below.
9. Insofar as the application filed under Order 9 Rule 13 C.P.C. is concerned the petitioner herein as the respondent in that application filed a counter affidavit and denied the averments. The Court below after considering all the facts and circumstances passed a detailed order and
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