ORDER

This civil revision petition has been filed to set aside the order dated

10.04.2019 passed in IA.No.687 of 2019 in OS.No.35 of 2014 on the file of the learned II Additional District Judge, Thiruvallur at Poonamallee, thereby dismissed the petition to condone the delay of 328 days in filing the application to set aside the exparte decree.

2. The petitioner is the defendant and the respondent is the plaintiff. The respondent filed suit for declaration and permanent injunction in respect of the suit property. On receipt of suit summons, the petitioner after engaging the counsel, failed to appear before the trial court and failed to file written statement. Therefore, the petitioner was set exparte and exparte judgment and decree were passed on 05.05.2017. The petitioner filed application to set aside the exparte decree with delay of 328 days and the same was dismissed. Aggrieved by the same, the present civil revision petition has been filed.

3. Mr.M.Elumalai, the learned counsel for the petitioner would submit that no suit summons were served to the petitioner. The respondent had set up a counsel and entered his appearance on behalf of the petitioner. Thereafter, conveniently he was absent before the trial court and as such, the petitioner was set exparte. Though the petitioner had taken specific stand that summons were not served to the petitioner, the trial court without even verifying the court records, mechanically dismissed the application on the ground that already the petitioner engaged counsel and he failed to appear before the trial court even after appropriate opportunity was given to file written statement.

3.1 He further submitted that change of power agents can no way defeat the rights of the petitioner to prosecute the case and there is no such legal impediment or embargo in contesting the case through a new power of attorney. The petitioner has got very good case to succeed in the suit and as such she may be given an opportunity to defend the suit. Condoning delay is the descretion of the court and also the length of delay is immaterial and as such, the court below ought to have allowed the application to condone the delay of 328 days in filing the application to set aside the exparte decree.

3.2 He further submitted that the petitioner's property was also sold out by the respondent. Therefore, the petitioner lodged complaint and the same has been registered in crime No.71 of 2014. Under the influence of the respondent, the investigation officer filed referred charge sheet and closed as mistake of fact on the basis of the report submitted by the Deputy Tahsildar saying that the patta in respect of the subject property was not issued to the petitioner herein. Whereas the Revenue Divisional Officer categorically stated that on the basis of the sale deed, the petitioner was issued patta for the subject land and on the basis of the report, the petitioner filed protest petition on the referred charge sheet filed in crime No.71 of 2014. The learned Magistrate by order dated 07.01.2023 in Crl.MP.No.17003 of 2022 set aside the referred charge sheet filed by the investigation officer i.e. Central Crime Branch Team IX A, Vepery, Chennai and ordered for reinvestigation by the Deputy Commissioner of Police, CCB, Avadi, Chennai and directed the Deputy Commissioner of Police to nominate other Inspector of Police and to conduct investigation and file final report. Now investigation is under progress. Therefore, the petitioner has got very good case to succeed in the suit. The respondent played fraud upon the Court and on her political and muscle power, she herself engaged counsel on behalf of the petitioner and filed vakalat before the trial court. Thereafter, she remained absent and made the petitioner exparte before the trial court.

4. Per contra, Mr.V.Ayyadurai, learned Senior Counsel appearing for the respondent submitted that the trial court rightly dismissed the petition to condone the delay of 328 days in filing the appl