CRP (NPD) No.1344 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on

26.06.2023

Pronounced on

28.07.2023

CORAM:

THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN

THILAKAVADI

CRP (NPD) No.1344 of 2016

and

CMP.No.7561 of 2016

H.Basheer Ahmed

... Petitioner/Plaintiff

Vs.

S.Anandakumar

... Respondent/1^st defendant

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution

of India seeking to set aside the fair and decreetal order dated 04.12.2015

made in I.A.No. 1995 of 2015 in O.S.No.691 of 2010, on the file of the

Principal District Munsif Court, Coimbatore.

For Petitioner

: Mr.C.R.Prasanan

For Respondent

: Ms.Kalaiselvi

*****

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CRP (NPD) No.1344 of 2016

O R D E R

The revision petition is preferred by the plaintiff against the order dated

04.12.2015 made in I.A.No.1995 of 2015 in O.S.No.691 of 2010 on the file

of the Principal District Munsif Court, Coimbatore, for condoning the delay

of 901 days in filing the petition to set aside the exparte decree passed on

09.01.2013, wherein and whereby the learned judge has allowed the petition

by imposing cost of Rs.2500/- to the respondent and Rs.200/- to District Legal

Authorities, Coimbatore.

Facts:

The petitioner/ plaintiff filed a suit for permanent injunction restraining

the defendants and his men encroaching into 4 feet width East West passage

and for mandatory injunction to demolish the building illegally constructed by

the defendants in 4 feet common pathway in the suit property. According the

petitioner/plaintiff, inspite of several opportunities afforded to the defendants,

the defendants wantonly prolonged the suit by not filing their written

statements for more than 2 years. The defendants having knowledge about the

fact of passing of ex parte decree on 09.01.2013 and the same can be inferred

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CRP (NPD) No.1344 of 2016

from the fact that they have filed a detailed counter statement on 13.10.2014

in E.P.No.18 of 2014 in O.S.No.691 of 2010 on the file of the Principle

District Munsif Court, Coimbatore. There is no explanation on the part of the

respondents/1^st defendant as to why he has not preferred an application to set

aside the ex parte decree along with his counter statement in E.P.No.18 of

2014 in O.S.No.691 of 2010, which was filed on 13.10.2010 itself. The

respondents/1^st defendant has come forward with the false statement that he

was suffering from psychiatric problem whereas he had been contesting the

execution petition. Though the respondent/1^st defendant opposed the

execution petition in the year 2014 itself, he has taken steps to set aside the

exparte decree only on 29.07.2015. The respondent/1^st defendant failed to give

sufficient reason in the affidavit for filing the petition to condone the delay of

901 days for setting aside the exparte decree. The trial Court failed to consider

the above facts and erroneously condoned the delay of 901 days in filing the

petition to set aside the exparte decree passed on 09.01.2013. Aggrieved by

this, the present revision petition filed.

2.The petitioner herein is the plaintiff in the suit in O.S.No.691 of 2010

on the file of the Principle District Munsif Court, Coimbatore. The plaintiff

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CRP (NPD) No.1344 of 2016

has filed the above suit for the following relief:

(a) Mandatory injunction to demolish the defendants illegal

construction in the 4 feet width East West common passage situated to the

north of the plaintiff's building.

(b) Permanent injunction restraining the defendants for putting up any

construction in the 4 feet width East West common passage situated to the

north of the plaintiff's building.

3. The defendants were set exparte on 09.01.2013 for not filing their

written statement. Thereafter, the respondent/1^st defendant filed I.A.No.1995

of 2014