1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:25.04.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN CRP(PD)(MD)No.758 of 2011 & MP(MD)No.1 of 2011 Pandiyammal :Petitioner/Petitioner/Defendant-2 -Vs- Subramaniyan :Respondent/Respondent/Plaintiff PRAYER:Civil Revision Petition filed under section 115 of CPC, to set aside the fair and decreetal order dated 27.01.2011 made in I.A.No.1769 of 2010 in O.S.No.15 of 2010 on the file of District Munsif Court, Sivagangai. For Petitioner :Mrs.K.R.Shiva Shankari For Respondent :Mr.S.P.Maharajan ORDER One of the defendants, who suffered an ex-parte decree is before this Court challenging the dismissal of her petition filed to condone the delay in filing the petition to set aside the ex-parte decree. 2.The respondent herein filed a suit against the petitioner as well as her husband for a declaration and for permanent injunction. The said suit was decreed as ex-parte on 27.03.2010. To set aside the said decree the petitioner filed a petition under Section 5 of the Limitation Act, to condone the delay of 176 days stating that she was suffering from jaundice and her husband was working abroad and therefore, she could not contest the said suit. The trial Court dismissed the said application. Challenging the same, the petitioner is before this Court. 3.Mrs.K.R.Shiva Shankari, learned Counsel for the petitioner submitted that due to the reason beyond her control, the said suit could not be contested. She further submitted that another suit in O.S.No.188 of 2010 has been filed by the respondent herein seeking for declaration and injunction in respect of the same suit property against the subsequent purchaser and the same is pending. If the ex-parte decree is not set aside, there cannot be any defence therein to contest the said suit. Therefore, she seeks for setting aside the dismissal order. 4.On the other hand, Mr.S.P.Maharajan, learned Counsel for the respondent strenuously argued that there is absolutely no plausible explanation for the delay and the petitioner is aware of the proceedings and after passing of ex-parte decree only, the petitioner sold the property to one Mr.Anthonysamy against whom again the respondent filed O.S.No.188 of 2010 seeking for declaration and permanent injunction. The learned Counsel submitted that in the absence of any proper explanation, for the delay, the trial Court rightly dismissed the petition. In fine, he defended the order of the trial Court and he also relied upon a few judgments of this Court. 5.Heard the learned Counsel for the petitioner and the learned Counsel for the respondent. 6.It is seen that O.S.No.15 of 2010 has been decreed as ex-parte on 27.03.2010 and the suit property measures about 1.97 hectares. The petitioner contended before the trial Court that her husband was working in abroad and she was suffering from jaundice and hence, she could not contest https://hcservices.ecourts.gov.in/hcservices/ 2 the matter. However, no medical certificate was produced to prove her ailment.Taking into consideration the lack of medical certificate or medical evidence, the trial Court dismissed the said application. The delay in this case is 176 days. Considering the fact that the petitioner's husband was working in abroad and the petitioner who is living alone, may not be in a position to defend the case and especially she alleges that she was suffering from jaundice, strict proof cannot be expected, in this regard. 7.As already observed, the suit is for declaration and for permanent injunction in respect of property measuring about 1.76 hectares of land The valuable rights are involved in respect of a vast property of 4.89 Acres. In this matter parties should be allowed to take part in the proceedings and the rights are required to be adjudicated on merits. 8.Though the suit property was sold to Anthonysamy, the respondent already filed a suit in O.S.No.188 of 2010 against the said Anthonysamy seeking for declaration and consequential injunction in respect of the same property and the same is pending. If the ex-parte decree in O.S.No.15 of 2010 is allowed to stand, absolutely, there could be no defence to Anthonysamy, the defendant in O.S.No.188 of 2010. Therefore, taking into consideration the facts and circumstances of the case, the delay is required to be condoned. Accordingly, the order is set aside and I.A.No.1769 of 2010 filed by the petitioner is allowed. 9.The judgments relied upon by the petitioner, no doubt speak about proper explanation for the delay. However, as already observed by this Court, this Court is convinced with the reasons given in the affidavit and also the valuable rights involved in the vast extent of property allows Section 5 application. Considering the delay, this Court suitably awards a cost of Rs.3,000/-(Rupees Three Thousand only) to be paid to the learned respondent Counsel on or before 29.04.2011. The other suit in O.S.No.188 of 2010 filed by the respondent against the Anthonysamy is also pending before the same Court. As the property in both the suits is one and the same, both the matters are directed to be tried jointly and to be disposed of on or before 30.09.2011. 10.With the above directions, this Civil Revision Petition is allowed No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (P&A) / TRUE COPY / Sub Assistant Registrar To: The District Munsif, Sivagangai. +1CC to Mr.S.Srinivasaraghavan, Advocate. SR.No.14676. +1CC to Mr.S.P.Maharajan, Advocate. SR.No.14720. Gsr C.R.P(PD)(MD)No.758 of 2011 RP/09.06.2011/2P/4C. 21.04.2011. https://hcservices.ecourts.gov.in/hcservices/