C.R.P.No.3453 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:02.12.2022

CORAM:

THE HONOURABLE Mr. JUSTICE S.SOUNTHAR

C.R.P.No.3453 of 2022

in CMP.No.18402 of 2022

1.Anthoni Ammal

2.Arokiasamy @ Arokiya Doss @ Palayam

...Petitioners

Versus

1.Kitheri Ammal

2.Vijayakulamerry @ Egalamerry

3.The President,

Tamil Nadu Slum Clearance Board,

Kamalarajar Salai,

Chennai – 600 005.

...Respondents

PRAYER: Civil Revision Petition filed under Section 115 of CPC, praying to

set aside the order of the learned Principal Judge, City Civil Court, Chennai,

dated 30.06.2022, passed in I.A.No.2 of 2022 in A.S.SR.No.1166 of 2022.

For Petitioners

:Mr.C.Umashankar

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C.R.P.No.3453 of 2022

O R D E R

The Civil Revision Petition is filed challenging the order passed

by the Court below, dismissing the petition to condone the delay of 3413

days, in filing first appeal against the ex parte decree for partition dated

10.08.2012.

2. The petitioners herein are the defendants 1 and 2 in a suit for

partition in O.S.No.379 of 2010 on the file of the learned Principal Judge,

City Civil Court, Chennai, filed by the respondents 1 and 2.

3. In the affidavit filed in support of the petition to condone the

delay of 3413 days, the petitioners have stated that they had no legal

knowledge and procedure. It was admitted by them that summon in the suit

was served on them and they filed a written statement on 28.09.2010. It was

alleged that after filing of written statement, they had been meeting their

Advocate and he used inform them that the case was pending and they need

not worry about the same. It was also alleged that the petitioners through

another Advocate acquired knowledge in the year 2017 that they had already

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C.R.P.No.3453 of 2022

filed a petition to set aside the ex parte order passed against them on

18.08.2010 in I.A.No.18342 of 2010. It was alleged that though the said I.A

was allowed on condition that the petitioners should deposit a sum of

Rs.400/- as costs, the same was not informed to them by their Advocate and

consequently, the said I.A was dismissed and subsequently, ex parte

preliminary decree of partition was passed on 10.08.2012. The failure of the

petitioners to pay costs of Rs.400/- as ordered in I.A.No.18342 of 2010 to set

aside the ex parte order is neither willful nor wanton.

4. The petitioners further alleged that after acquiring

knowledge about all these happenings in the year 2017, they had filed a

petition to set aside the ex parte decree and there was a delay of 1905 days in

filing a petition to set aside the ex parte decree. The petitioners filed

I.A.No.16250 of 2017 to condone the delay of 1905 days in filing the petition

to set aside ex parte decree and the same was dismissed by the trial Court.

Aggrieved by the same, the petitioners filed a revision before this Court in

CRP.No.1392 of 2019 and the same was dismissed. Subsequently, the

petitioners filed a SLP No.16187 of 2021 and the same was also dismissed on

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C.R.P.No.3453 of 2022

20.10.2021. Thereafter, the petitioners were advised to file an appeal against

the ex parte decree in the year 2010 and hence, they filed a regular first

appeal in AS.SR.No.1166 of 2022 before the First Appellate Court. Since

there was a delay of 3413 days in filing the said appeal, an application was

filed to condone the delay.

5. It was further averred that since the petitioners were

prosecuting the remedy under Order 9 Rule 13, they had not filed the regular

first appeal in time.

6. Not satisfied with the reasons assigned by the petitioners to

condone the inordinate delay, the Court below has dismissed the condone the

delay petition and