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IN THE HIGH COURT OF JUDICATURE AT MADRAS
J.SATHYA NARAYANA PRASAD, J.
B.Rajendran – Appellant
Versus
D.Bakthavachalu – Respondent
C.R.P(PD)Nos.3447 & 3448 of 2016 and C.M.P.No.17586 of 2016
Decided on : 10-12-2021
Civil Procedural Code, 1908 - Order IX Rule 13 - Limitation Act - Section 5 – Condoning delay - Interlocutory Applications - Civil Revision Petitions have been filed by petitioner/plaintiff challenging order - Whether reasons stated in affidavit filed in support of I.A.by respondent/defendant are substantiated by relevant materials and facts - Interlocutory Application in I.A. under Section 5 of Limitation Act, for condoning delay of 356 days in filing petition under Order IX Rule 13 of C.P.C (Para 2.1).
Findings of Court – Interlocutory Applications were filed by respondent/defendant belatedly, only after a period of one year, which shows his lethargic attitude in conducting case - Even after receiving notice in E.P, respondent/defendant did not choose to participate in said proceedings and remained ex-parte - Subordinate Judge ought to have taken into consideration conduct of respondent/defendant, while passing orders in I.A., allowing Applications - Suit in O.S. was filed by petitioner/plaintiff for specific performance and sale deed was also executed in favour of petitioner/plaintiff as early - Both I.A. were filed after a delay of 356 days and that too with certain defects, for which, respondent/defendant took nine months to rectify same and filed petition only - Hence, nothing survives in suit itself - But, all these facts were not taken into consideration by learned Subordinate Judge while allowing Interlocutory Applications filed by respondent/defendant in I.A - Reason given by learned Subordinate Judge for allowing these Applications is to avoid multiplicity of proceedings is not valid and tenable.
Result – Civil Revision Petitions allowed.
ORDER :
These Civil Revision Petitions have been filed by the petitioner/plaintiff challenging the order passed by the learned Subordinate Judge, Cheyyar in I.A.Nos.665 of 2015 & 437 of 2016 in O.S.No.115 of 2012 dated 30.06.2016 respectively, in and by which, the learned Subordinate Judge has allowed the two Interlocutory Applications filed by the respondent/defendant, viz.,
(ii) I.A.No.437 of 2016 filed under Order IX Rule 13 of C.P.C, for setting aside the ex-parte decree dated 27.02.2014.
2. The brief facts of the case are as follows:
The petitioner/plaintiff has filed an Original Suit in O.S.No.115 of 2012 before the Subordinate Court, Cheyyar for the following reliefs:
(b) Directing the respondent/defendant to deliver the suit properties to the petitioner/plaintiff and if he does not act as per the sale agreement.
(c) Restraining the respondent/defendant, his men and agent from encumbering the suit lands or alienating it to anybody executing to this petitioner/plaintiff and if he does not execute the sale deed.
(d) To execute the sale deed in favour of the petitioner/plaintiff and deliver the lands to the petitioner/plaintiff through Court.
(e) If for any reason this Court comes to the conclusion that the petitioner/plaintiff is not entitled to the relief of specific performance then directing the respondent/defendant to return an advance sum of Rs.2,00,000/- with damages by way of interest at 24% in a sum of Rs.25,400/- till today and thereafter, at 12% p.a on Rs.2,00,000/- till realization.
(f) Directing the respondent/defendant to pay the suit costs to the petitioner/plaintiff.
2.1. When the suit O.S.No.115 of 2012 was posted for trial on 27.02.2014, the respondent/defendant did not appear before the trial Court.
Therefore, he was set ex-parte and an ex-parte decree was also passed by the learned Subordinate Judge, Cheyyar. Subsequently, the respondent/defendant has filed an Interlocutory Application in I.A.No.665 of 2015 under Section 5 of the Limitation Act, for condoning the delay of 356 days in filing the petition under Order IX Rule 13 of C.P.C. The respondent/defendant has filed an affidavit in support of the said Application, in which, he has stated that he could not appear for trial on 27.02.2014 since he was suffering from Jaundice at that time and due to which, he could not go out his house.
2.2. The petitioner/plaintiff has filed a counter affidavit in I.A.No.665 of 2015, in which, he has stated that when the suit was initially taken up for hearing on 03.12.2012, the respondent/defendant did not appear before the trial Court and thereafter, on 10.01.2013, the respondent/defendant was set ex-parte and on the very same day, the exparte decree was passed by the learned Subordinate Judge, Cheyyar, as against which, the respondent/defendant has filed an application for setting aside the ex-parte decree dated 10.01.2013 passed by the trial Court. In the affidavit filed in support of the said application, the respondent/defendant has stated that on 02.02.2013, he was suffering from severe fever. The said application was allowed by the trial Court and thereafter, the suit was posted for cross examination of the petitioner/plaintiff by the respondent/defendant on 17.01.2014 and then, time has been extended for the same till 26.02.2014, however, the respondent/defendant did not appear before the trial Court for cross examination. Finally, on 27.02.2014, the trial Court has passed an ex-parte decree in O.S.No.115 of 2012. Subsequent to the said ex-parte decree, the respondent/defendant has filed two Interlocutory Applications, viz., (i) I.A.No.665 of 2015 filed under Section 5 of t
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