Advocates:
['R JAYAPRAKASH', '', 'R S MAITREYA', 'B KAVYA', 'm/s v sekar']

CRP.No. 451 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14.12.2022

CORAM:

THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

CRP.No. 451 of 2021

1.Indirani

Nallathambi (Deceased)

Ramar (Deceased

2.Jayaprakash

3.Jothi

4.Rajesh

.. Petitioners

Versus

P. Usharani

.. Respondent

Prayer:

Civil Revision Petition is filed under Article 227 of the Constitution

of India, praying to set aside the fair and decretal order passed in

I.A.No.1118 of 2018 in O.S.No. 154 of 2011, dated 20.01.2020 on the file

of I Additional District Munsif Court, Salem.

For Petitioners

: Mr.R. Jayaprakash

For Respondent

: Ms.Nirmala

For Mr.V.Sekar

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CRP.No. 451 of 2021

O R D E R

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

decretal order passed in I.A.No.1118 of 2018 in O.S.No.154 of 2011,

dated 20.01.2020 on the file of I Additional District Munsif Court, Salem.

2. The learned counsel for the petitioners/defendants contended that

the petitioners appeared through their Advocate Mr.Ragothaman from the

year 2011. Since their advocate not diligent in representing the matter,

they were set ex-parte. The above suit for permanent injunction has been

entrusted to Mr.Sankarapandiyan, Advocate, subsequently and he has not

informed about the stage of the suit proceedings. Hence, there is a delay of

385 days in filing the petition under Order 9 Rule 13 of CPC., to set aside

the ex-parte decree passed against them on 23.01.2017. Therefore, he

prays to set aside the findings of the trial Court.

3. Per contra, the learned counsel for the respondent/plaintiff

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CRP.No. 451 of 2021

contended that no vakalath of Sankarapandiyan, Advocate, has been filed

and hence, they could not take immediate steps to set aside the ex-parte

decree in the suit proceedings and the reasons for condoning delay to set

aside the ex-parte decree has not been properly explained and there is no

documentary evidence to support their contention and the same is liable to

be dismissed.

4. Heard both side and perused the records.

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

has filed the suit in O.S.No.154 of 2011 on the file of District Munsif

Court, Salem, for permanent injunction restraining the defendants from in

any manner interfering with the plaintiff's peaceful possession and

enjoyment of the suit property. The second defendant contested the suit

by way of filing written statement and the same was adopted by the

defendants 1, 4 and 6. After perusing the records, the trial Court

pronounced the ex-parte judgment and decree, dated 23.01.2017. Since

the petitioners' previous advocate has joined in the judicial service and

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CRP.No. 451 of 2021

another advocate who looked after their case, the same was not informed

to the petitioners about the stage of the suit proceedings. Thereafter, they

met with Mr.Sankarapandiyan, Advocate, and got their case bundle and

the same was found that the ex-parte judgment and decree have been

passed in the suit proceedings against the petitioners/defendants on

23.01.2017. After knowing the same, the petitioners/defendants filed

I.A.No.1118 of 2018 under Section 5 of the Limitation Act seeking to

condone the delay of 385 days in filing the petition under Order 9 Rule 13

of the Code of Civil Procedure, praying to set aside the ex-parte judgment

and decree dated 23.01.2017 pronounced against the petitioners. After

perusing the entire records, the trial Court dismissed the said application

without cost by order, dated 20.01.2020. Challenging the said order, the

petitioners/defendants have filed this revision.

6. On a further perusal of the records, it reveals that the 4th

petitioner was examined as PW1 on the side of the petitioners and no oral

and documentary evidence have been adduced