A party should not be penalized for the negligence of their counsel, especially in cases involving vital rights over immovable property; such negligence can constitute sufficient cause for condoning delay in setting aside an ex-parte decree.

PRAYER:

Civil Revision Petition filed under Section 115 of Civil Procedure Code, to set aside the fair and decreetal order dated 02.12.2021 passed in I.A.No.1 of 2019 in O.S.No.31 of 2016 on the file of II-Additional District Judge, Tiruchirapalli and allow the Civil Revision Petition.

O R D E R

Heard Mr.K.R.Kishore Ram, for Revision Petitioner and Mr.R.Murali, for Respondent.

2. The Civil Revision Petition is filed challenging the order passed by the learned II-Additional District Judge, Tiruchirappalli in I.A.No.1 of 2019, in O.S.No.31 of 2016, dated 02.12.2021, whereby the application filed under Section 5 of Limitation Act came to be dismissed.

3. For the sake of convenience, the parties shall be referred to as per their rank in the suit.

4. The idol of Arulmighu Thayumanaswamy Kovil Temple, Tiruchirappalli is the plaintiff. It presented O.S.No.31 of 2016, seeking the reliefs of declaration of title, recovery of possession and for mesne profit. The 5th defendant is the purchaser of the property from the 3rd defendant, through the power of attorney, the 4th defendant.

5. The case of the plaintiff is that the property originally belonged to one Chandra, wife of K.T.K.Pathy. She had purchased the same by way of registered sale deed on 25.08.1958. Chandra executed a settlement deed on 28.04.1980, whereby she settled the property in favour of her daughter one Mrs.Valliammai. Under the settlement deed, the settlee had no right of alienation. After the death of Valliammai, the property was to be enjoyed by 3rd defendant for his life time without any power of alienation. After the death of Valliyammai and 3rd defendant, the property was to vest with the Thiru Muruga Perumal Swamy in the plaintiff's temple.

6. The plaintiff pleaded that, during the life time of settlees, they were called upon to perform certain charities to the temple. The plaintiff further pleaded that the 3rd defendant is entitled to a life estate in the property, without the power of alienation. Since defendants 1 and 2 along with the 3rd defendant had alienated the property, through the power agent, 4th defendant, in favour of the 5th defendant, the same is void and invalid and not binding on the plaintiff. As the property had been sold, the temple filed the suit for recovery of possession.

7. It is not in dispute that summons were served on the defendants and the 5th defendant alone contested the suit by filing a written statement. The Court framed the issues and the matter was listed for trial on 03.01.2018. On 10.07.2018, the Executive Officer of the Temple was examined as P.W.1, he marked Ex.A1 to Ex.A10. The matter was posted on four occasions for the cross-examination of P.W.1 by the defendants. However, the counsel for the 5th defendant was not ready to cross-examine P.W.1. Consequently, on 16.08.2018, the 5th defendant was called absent and set ex-parte and the suit was adjourned thereafter. Finally, on 24.09.2018, the Court passed an exparte decree in the said suit, granting the reliefs sought for by the plaintiff. Subsequently, the 5th defendant filed an application in I.A.No.01 of 2019, to set aside the ex-parte decree as well as to condone the delay in filing the said application.

8. It is her plea that she came to know about the ex-parte decree only when she was served with the summons in E.P.No.320 of 2019. She further pleaded that her earlier Advocate had not intimated her regarding the pendency of the suit and, hence, she could not follow up the case. She pleaded that the delay was neither wanton nor wilfull and prayed that the same may be set aside.

9. This app