CRP.No. 1016 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.02.2023

CORAM:

THE HONOURABLE MRS. JUSTICE V. BHAVANI SUBBAROYAN

Civil Revision Petition No. 1016 of 2021

and

CMP No. 8148 of 2021

Narasimhan Naidu

.. Petitioner

Versus

Venkatammal

.. Respondent

Civil Revision Petition is filed under Section 115 of CPC., praying to

set aside the fair and decretal order in I.A.No. 1 of 2020 in O.S.No. 136 of

2013 on the file of Special Court, Additional Special Judge, Krishnagiri, dated

12.03.2021.

For Petitioner

:

Mr. V. Raghavachari

For Respondent

:

No Appearance

O R D E R

This Civil Revision Petition has been filed to set aside the fair and

decretal order dated 12.03.2021 passed in I.A. No. 1 of 2020 in O.S.No. 136 of

2013 on the file of Special Court, Additional Special Judge, Krishnagiri.

2.

The revision petitioner herein is the first defendant and the

respondent herein is the plaintiff in the suit proceedings.

1/12

https://www.mhc.tn.gov.in/judis

CRP.No. 1016 of 2021

3.

On a perusal of the records, it is seen that the respondent/plaintiff

filed the suit in O.S.No.136 of 2013 before the learned Principal Subordinate

Judge, Krishnagiri, for partition and other relief. On notice, the first defendant

has filed his written statement, denying all the averments made in the plaint.

4.

However, for non-appearance of the counsel for the first

defendant, an ex-parte judgment and decree were passed on 07.12.2017

against the revision petitioner/1st defendant. Subsequently, when the Court

notice was served on the 1st defendant/revision petitioner herein in the final

decree application, he approached his Counsel, but, his Counsel has informed

him that he called him over phone to inform about the exparte decree, but he

did not attend to his phone call. His counsel has also stated that he had also

written a letter intimating about the exparte decree, but according to the first

defendant/revision petitioner, no such communication had been received from

his counsel. Therefore, the revision petitioner/first defendant asked his

counsel to return the case bundle. Accordingly, his Counsel has also given No

Objection Vakalath on 13.10.2019 but he did not return the case bundle by

stating that it has been misplaced. The revision petitioner/first defendant has

therefore engaged the present Counsel on 17.10.2019 and a Vakalath was filed

on 21.10.2019, the date of hearing of the final decree application.

2/12

https://www.mhc.tn.gov.in/judis

CRP.No. 1016 of 2021

5.

The petitioner thereafter, through his new counsel, filed the

instant application for condonation of delay of 653 days in filing the

application to set aside the exparte decree dated 07.12.2017. It is stated that he

ought to have filed the petition to set aside the ex-parte decree within 30 days

from the date of exparte decree i.e., on or before 06.01.2018, but the said

application was filed only on 21.10.2019. It was reasoned that his erstwhile

counsel did not intimate him about the exparte decree and only after he

received notice in the final decree application, he came to know about the

exparte decree dated 07.12.2017. Thus, the revision petitioner/first defendant

would submit that the delay of 653 days in filing the petition to set aside the

ex-parte preliminary decree is neither intentional nor wanton. It is also stated

that it is not his intention to drag on the suit proceedings especially when he

had already filed his written statement through his erstwhile counsel.

6.

The plaintiff has filed a counter affidavit in I.A. No. 1 of 2020

stating that it is not correct to state that his previous counsel has not informed

him about the ex-parte preliminary decree passed by this Court on 07.12.2017

to the petitioner. This according to the plaintiff is not a valid reason to

condone the huge delay. The 1st defendant having filed a written sta