C.R.P.(N.P.D).No.2903 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.07.2021

CORAM

THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

C.R.P.(NPD) No.2903 of 2018 and

CMP.No.16983 of 2018

1.Muthusamy

2.Mariammal

...

Petitioners

Vs

Gnanaprakasam

...

Respondent

Prayer :- Civil Revision Petition is filed under Article 227 of the

Constitution of India against the fair and decretal order dated 21.09.2017

passed in IA.No.480 of 2017 in OS.No.139 of 2015 on the file of the

District Munsif Court at Mettur.

For Petitioners

: Mr.R.Nalliyappan

For Respondent

: Mr.S.Mahesh

ORDER

This Civil Revision Petition is filed against the fair and decretal

order dated 21.09.2017 passed in IA.No.480 of 2017 in OS.No.139 of 2015

on the file of the District Munsif Court at Mettur, thereby dismissing the

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C.R.P.(N.P.D).No.2903 of 2018

petition to condone the delay in filing the petition to set aside the exparte

decree.

2. The respondent filed suit for declaration, delivery of possession

and permanent injunction in respect of the suit property. On receipt of suit

summons, the petitioners engaged advocate and thereafter failed to file

written statement and as such they were set exparte on 12.01.2016 and the

exparte decree was passed on 04.02.2016. On the strength of the decree, the

respondent filed execution petition for taking delivery of possession in

respect of the suit property. At that juncture, the petitioners came to

understand about the exparte decree and immediately filed petition to set

aside the exparte decree with delay of 382 days and the same was dismissed.

Aggrieved by the same, the present civil revision petition has been filed.

3. The learned counsel for the petitioners would submit that they

are coolis. The first petitioner was only looking after the case and engaged

counsel. The second petitioner is being wife, she is running a tea stall in the

suit property. Due to avocation, the first petitioner went to Madhya Pradesh

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C.R.P.(N.P.D).No.2903 of 2018

and as such they could not able to give proper instruction for their counsel

to file their written statement. In fact, they are in possession and enjoyment

of the suit property from the year 1987. While being so, the respondent is

being influenced person and obtained patta for the suit property in his name.

Except patta, no other documents to show that he is the owner of the

property. Admittedly, the suit property is 'natham' and the petitioners are in

possession and enjoyment of the suit property from the year 1987. In fact,

when the respondent disturbed their possession and enjoyment, the

petitioners were constrained to file suit in OS.No.284 of 2011 for injunction

in respect of the very same property. Unfortunately, it was dismissed for

default and thereafter they did not pursue the same since the first petitioner

was out of the State. Utilising the said circumstances, the respondent filed

the present impugned suit with false and frivolous allegations and obtained

exparte decree.

3.1 He further submitted that the petitioners categorically stated

the reasons for delay caused in filing the petition to set aside the exparte

decree. Even then, the court below without considering the same dismissed.

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C.R.P.(N.P.D).No.2903 of 2018

However, the suit is for declaration and recovery of possession and as such

they may be given one more opportunity to defend the suit. He further

submitted that along with the petition, they also filed their written statement.

4. Per contra, the learned counsel for the respondent submitted

that the petitioners were engaged as tenant in the year 2006 and they duly

paid the rent till the year 2010. Immediately, they filed suit in OS.No.284 of

2011 for injunction and the same was also dismissed for default. Therefore,

the respondent filed suit for declaration and recovery of p