C.R.P(NPD).No.2786 of 2018, dt.02.02.2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.02.2021

CORAM:

THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY

C.R.P.(NPD) No.2786 of 2018

and

Cmp.No.16330 of 2018

1.Vijay @ Jaya

2.Raja

... Petitioners

Versus

Rajendiran

... Respondent

Civil Revision Petition filed under Section 115 of the Code of Civil

Procedure, to set aside the fair order dated 10.11.2017 made in I.A.No.84 of

2017 in Un-numbered CMA on the file of the Principal District Court, Salem.

For Petitioners

: Mr.S.Kaithamalai Kumaran

For Respondent

: Mr.S.Kamadevan

ORDER

This Civil Revision Petition has been filed against the order of dismissal

dated 10.11.2017 dismissing the I.A.No.84 of 2017 in Un-numbered CMA on the

file of the Principal District Court, Salem.

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C.R.P(NPD).No.2786 of 2018, dt.02.02.2021

2.Heard the learned counsel for the petitioners and the learned counsel

appearing for the respondent and perused the materials available on record.

3.The revision petitioners are the defendants in O.S.No.29 of 2010. The

suit was filed for partition and separate possession of the Plaint described

property and for a consequential injunction restraining the defendants from

interfering with the plaintiff's peaceful possession and enjoyment of the plaint

described properties. The suit was decreed exparte on 14.06.2010. On

04.01.2011, the defendants have filed an application in I.A. No.177 of 2011 to

condone the delay in filing the application to set aside the exparte decree dated

14.06.2010. They have also filed I.A. No.178 of 2011 to set aside the exparte

decree dated 14.06.2010. On 08.11.2011, I.A. No.177 of 2011 was allowed by

condoning the delay. Subsequently, on 08.06.2016, I.A. No.178 of 2011 was

also allowed subject to payment of costs of Rs.1,000/- to the plaintiff on or

before 24.06.2016. On 24.06.2016, when I.A. No.178 of 2011 was taken up for

hearing, it was noticed that the costs of Rs.1,000/- has not been paid. Further,

there was no representation for both sides on 24.06.2016. Therefore, I.A. No.

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C.R.P(NPD).No.2786 of 2018, dt.02.02.2021

178 of 2011 was dismissed.

4.Aggrieved by the order dated 24.06.2016 in I.A. No.178 of 2011 in

O.S.No.29 of 2010, the defendants have filed unnumbered CMA on 14.09.2016.

The appeal was returned by giving one month time to the defendants to correct

the date of the order in I.A. No. 178 of 2011. The defendants, therefore, filed a

Memo before the Sub Court, Attur and the corrected copy of the order was

delivered only on 21.10.2016. As the one month time granted for re-presentation

of the appeal lapsed, the defendants have filed I.A.No.84 of 2017 in Unnumbered

CMA on 24.10.2016 to condone the delay in re-presenting the appeal. A counter

was filed in IA No. 84 of 2017 by the plaintiff stating that the delay in re-

presenting the appeal is deliberate and intentional.

5.The Appellate Court, after hearing both sides, dismissed the I.A. No.84

of 2017 on 10.11.2017 on the ground that the main CMA itself is not

maintainable and the delay in re-presenting the CMA has not been properly

explained. Aggrieved by the order dated 10.11.2017, the present Civil Revision

Petition is filed by the defendants.

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C.R.P(NPD).No.2786 of 2018, dt.02.02.2021

6.On perusal of the order passed by the Court below, this Court finds that

the Court below has not taken into consideration the reason for delay but it has

decided the matter as if the Civil Miscellaneous Appeal itself is not at all

maintainable and on merits, it has passed the order. The application was filed for

condoning the delay in re-presentation of the appeal, but the Court below has not

restricted its order to the extent whether the delay can be condoned or not. After

condoning the delay, the merits of the appeal can very well be decided at the time

of adm