IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.08.2018

CORAM:

THE HONOURABLE MS.JUSTICE M.S.SATHYANARAYANAN

C.R.P. No.1123 of 2013

Karunanidhi

... Petitioner

Vs.

Arul

... Respondent

Prayer: Civil Revision Petition filed under Article 115 of

the Civil Procedure Code against the order and decree dated

07.11.2012 made in I.A.No.309 of 2012 in O.S.No.50 of 2002, on

the file of learned District Munsif, Vanur.

For petitioner : Mr.P.Dinesh Kumar

For Respondents: Ms.J.Prithvi for

Mr.Kaithamalai Kumaran

ORDER

The revision petitioner is the defendant in O.S.No.50 of

2002, on the file of the court of District Munsif, Vanur.

2. The respondent in the present civil revision petition

filed I.A.No.309 of 2012 under section 5 of the Limitation Act

to condone the delay of 1774 days in filing the application to

set aside the order dated 10.08.2007 of dismissal for default of

the suit in O.S.No.50 of 2002. The said order was confirmed by

the final order dated 07.11.2012 on terms and challenging the

illegality of the same, the revision petitioner has come forward

to file the civil revision petition.

3. The respondent / plaintiff filed the above said suit

praying for declaration that the suit pathway is a common one

and also for permanent injunction restraining the defendants to

interfere with the usage of the pathway and also for mandatory

injunction to remove the construction put up on the suit

pathway. The revision petitioner / defendant has entered

https://hcservices.ecourts.gov.in/hcservices/

appearance and filed his written statement. It appears from the

materials that the original suit was decreed exparte and the

revision petitioner / defendant filed an application to set

aside the exparte decree and it was allowed on terms.

Subsequently, on account of non appearance of the plaintiff, the

suit came to be dismissed for default on 10.08.2007.

4. Learned counsel for the revision petitioner / defendant

has drawn the attention of this court to the affidavit filed in

support of I.A.No.309 of 2012 and would submit that as per the

reasons adduced, the clerk of the counsel Gajendravaradan did

not inform the setting aside of the exparte decree and though

the suit has been adjourned twice, the plaintiff did not appear

for the purpose of prosecuting the suit and the suit came to be

dismissed on 10.08.2007, and in the absence of any specific or

reasonable reason for such huge delay, the application in

I.A.No.309 of 2012 ought not to have been allowed by the learned

District Munsif, Vanur, on a meagre payment of Rs.500/-, and

prays for interference.

5. Per contra, learned counsel for the respondent /

plaintiff would submit the revision petitioner had the

benevolence of setting aside the exparte decree as the clerk

attached to the counsel for the plaintiff has failed to inform

about the setting aside and also not informed about the date of

hearing and therefore, the respondent was under the genuine

impression that the exparte decree has not been set aside and on

becoming aware of the same, he immediately contacted the

advocate and filed the application for restoration of the suit

and would further submit that, the suit was filed for

comprehensive relief of declaration and mandatory injuction and

in the event of order of dismissal of suit being sustained, he

may not be able file a fresh suit for the same cause of action

and that it would be barred by limitation and therefore, prays

for sustaining the impugned order.

6. This Court

has carefully considered the rival

submissions and also perused the materials placed. The fact

remains that the revision petitioner / defendant had the

benevolence of exparte decree passed against him and he has also

paid the costs for setting aside the exparte decree. It is

also to be noted at this juncture that the