BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 23.11.2023 Pronounced on : 16.02.2024 CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.R.P.(MD)No.2992 of 2023 and C.M.P.(MD)No.15435 of 2023 Chelladurai ... Petitioner/

Respondent/

Plaintiff Vs.

1. Lingam

2. Backiyam

3. Ponnusamy ... Respondents/

Petitioners/ Defendants Prayer : This Civil Revision Petition filed under Section 115 of the Civil Procedure Code, to set aside the decree and order dated 10.02.2020 in I.A.No.292 of 2016 in O.S.No.417 of 2013 on the file of the learned District Munsif cum Judicial Magistrate No.1, Srivilliputhur, Virudhunagar District.

For Petitioner : Mr.Muthu Ganesa Pandian For R2 : Mr.M.Jothi Basu For R1 & R3 : No appearance

ORDER

The Civil Revision Petition is directed against the order passed in I.A.No.292 of 2016 in O.S.No.417 of 2013 dated 10.02.2020 on the file of the District Munsif cum Judicial Magistrate No.1, Srivilliputhur, allowing the application filed under Section 5 of Limitation Act.

2. The revision petitioner as plaintiff has filed the above suit claiming permanent injunction restraining the respondents/defendants and their men from in any manner interfering with the revision petitioner/ plaintiff's peaceful possession and enjoyment of the suit property. The respondents/defendants, after the receipt of suit summons, have entered into appearance. Since the respondents/defendants have not filed their written statement, they were called absent and set ex parte and subsequently ex parte decree came to be passed on 15.04.2014. The respondents/defendants have then filed the present application in I.A.No.

292 of 2016 under Section 5 of Limitation Act to condone the delay of 586 days in filing the application for setting aside the ex parte decree dated 15.04.2014 along with an application for setting aside the ex parte decree under Order 9 Rule 13 C.P.C. The revision petitioner/plaintiff has filed a counter statement raising serious objections. The learned District Munsif, after enquiry, has passed the impugned order dated 10.02.2020 allowing the application and thereby condoning the delay of 586 days in filing the application for setting aside the ex parte decree. Aggrieved by the impugned order, the plaintiff has preferred the present revision.

3. The case of the respondents/defendants, in the affidavit filed in support of the application under Section 5 of Limitation Act, is that the revision petitioner/plaintiff, by alleging false and untenable allegations, has filed the suit against the respondents/defendants including the deceased third respondent/third defendant for permanent injunction, that their counsel has entered into appearance on 27.01.2014, that their counsel informed them that the case was posted for filing of written statement, that though they have contacted their counsel several times, he has not given proper reply but directed them to bring the documents for preparing written statement, that their counsel had directed them to come to his office on 18.06.2014 and accordingly, they went to their counsel office and produced the documents and at that time, they were informed that since written statement was not filed, ex parte decree came to be passed on 15.04.2014, that the respondents/defendants were illiterates and were not aware of the Court proceedings, that the second respondent/second defendant, after the receipt of notice in a petition for police aid, has appeared before the Court directly and thereafter, they have not appeared, that they came to know about the ex parte decree only after the receipt of notice in the execution petition in E.P.No.85 of 2014, that the revision petitioner/plaintiff has no right or title in the suit property, that the delay occurred in filing the application for setting aside the ex parte decree is neither willful nor wanton and that therefore, the delay of 586 days has to be excused.

4. The defence of the revision petitioner/plaintiff is that even as per the respondents/defendants' affida