O R D E R

The Civil Revision Petition has been filed against the order passed by the Sub Judge, Cheyyar, Thiruvannamalai District in I.A.No.1 of 2022 in A.S.No.18 of 2016 against O.S.No.154 of 2007 dated 03.10.2023, dismissing the petition filed under Section 5 of the Limitation Act, seeking to condone the delay of 116 days in filing the set aside exparte decree.

2. The petitioners are the plaintiffs in O.S.No.154 of 2007 on the file of Principal District Munsif, Vandavasi. The suit was filed for permanent injunction restraining the defendants/respondents from interfering with the peaceful possession and enjoyment of the suit property. After full fledged trial, the suit was decreed in favour of the petitioners/plaintiffs on 03.01.2014 by the Principal District Munsif, Vandavasi. Against the judgment and decree dated 03.01.2014, the respondents/defendants preferred an appeal in A.S.No.18 of 2016 before Subordinate Court, Cheyyar at Tiruvannamalai and the Subordinate Judge, Cheyyar by judgment dated 25.02.2022 allowed the appeal exparte and set aside the decree and judgment of the trial Court. The petitioners/plaintiffs filed an application in I.A.No.1 of 2022 in A.S.No.18 of 2016 to set aside the exparte judgment along with a petition in I.A.No.1 of 2022 seeking to condone the delay of 116 days. It is the case of the petitioners/plaintiffs that exparte judgment was passed in A.S.No.18 of 2016 on 25.02.2022 and due to Covid, they were unable to file an application within time and thereby, there was a delay of 116 days. 3.The respondents/defendants have contended that the petitioners/plaintiffs were set exparte as early as 24.11.2016 and thereby there was a delay of 2065 days and objected to the condonation. The appellate Court holding that there was no explanation for the absence from 24.11.2016 and also holding that the petitioners/plaintiffs were directed to appear on 24.11.2016 and since they have not appeared before the Court, they were set exparte and the appellate court further holding that there was no Covid pandemic in the year 2016 and it was only from the year 2020 and stating that there was no satisfactory reasons adduced for the absence from 24.11.2016, dismissed the application in I.A.No.1 of 2022. Challenging the same, the present Civil Revision Petition has been filed.

4. Learned counsel for the petitioners/plaintiffs would submit that the first petitioner is a senior citizen and he has been taking care of the case. Learned counsel also submits that the trial court, after full fledge trial, has passed detailed judgment on 03.01.2014 in favour of the petitioners/plaintiffs and thereafter, without proper notice being served on them by the appellate Court, the petitioners/plaintiffs were set exparte on 24.11.2016 and later the appeal was allowed and an exparte judgment and decree was passed on 25.02.2022 during the prevalence of Covid. The petitioners/plaintiffs were unable to file an application during such period to set aside the exparte decree and therefore, there had been a delay of 116 days. The petitioners, in fact, have filed an application to condone the delay of 116 days, whereas, during the course of arguments, the petitioners were forced to change the date as 24.11.2016 in the affidavit. Learned counsel further submits that the trial Court had given an erroneous finding that there was no Covid during the year 2016 and even otherwise, the appellate court has allowed the appeal and passed an exparte decree which is not in compliance with the requirements of Order 41 Rule 31 of Civil Procedure Code. Thus non- observance of these requirements lead to infirmity in the judgment of the appellate Court.

5. Learned counsel for the petitioners/plaintiffs would further submit that the appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as on facts and the first appeal is a valuable right and at that stage, all questions of fact and law decided by the trial court are open for recons