1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.06.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P.(PD)(MD)No.1188 of 2011 and M.P(MD)No.1 of 2011 Shahul Hameed :Petitioner/Respondent/Defendant -Vs- 1.Noor Jahan 2.Nijamudeen :Respondent/Petitioner/Plaintiff PRAYER:Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the Fair and Decretal order dated 23.08.2010 made in I.A.No.500 of 2009 in O.S.No.104 of 1996 on the file of Sub-Court, Pudukkottai. For Petitioner:Mr.M.Rajarajan For Respondent:Mr.B.Anand for Mr.S.Deenadhayalan ORDER The defendant is before this Court challenging the order passed in the petition to condone the delay in filing petition to set aside ex parte decree filed by the respondents. 2.Heard Mr.M.Rajarajan, learned counsel for the petitioner and Mr.B.Anand, learned counsel for Mr.S.Deenadhayalan learned counsel for the respondents. 3.The husband of the first respondent and father of the second respondent filed a suit for partition against the petitioner herein. The petitioner filed written statement and the matter was posted for trial on 07.10.2002. However, even before the original plaintiff, namely, the husband of the first respondent passed away on 14.12.1998. Therefore, the suit was dismissed for default. Only to restore the said suit, an application was filed along with petition to condone delay of 2,552 days in filing the set aside petition. That petition was allowed. Aggrieved by that, the defendant is before this Court challenging the said order. 4.Mr.M.Rajarajan, learned counsel for the petitioner strenuously argued that the respondents are aware of the pendency of the proceeding and they did not take steps to bring the legal-heirs of the original plaintiff on record in time. He also read from paragraph 4 of the counter affidavit filed by the petitioner herein, that knowing proceedings only a document dated 15.06.1999 was executed by the respondents herein. He further submitted that technically the petition is not https://hcservices.ecourts.gov.in/hcservices/ 2 maintainable, for not having filed petition to set aside the abatement. Therefore, he submitted that the trial Court should not have allowed the petition. Mr.B.Anand, learned counsel for the respondents submitted that the respondents did not know about the pendency of the proceedings as the original plaintiff passed away without informing about the pendency of the proceedings. 5.The learned counsel for the petitioner relied upon a judgment of the in Balwant Singh (Dead vs. Jagdish Singh reported in AIR 2010 SC 3043 to press the point that there is no justifiable reason to condone delay. In that case, the Hon'ble Supreme Court came to the conclusion that the delay petition filed in that case did not disclose correct and true facts and lacked bona fides and therefore, the Hon'ble Supreme Court came to the conclusion that there was no justifiable reason in the one page application and dismissed the condone delay petition. However, in this case as stated above, there is justifiable reason which is accepted by this Court. 6.Admittedly, the suit is for partition of the joint family property. The suit was filed in the year 1996 and the petitioner herein filed written statement and contested the suit. On 14.12.1998, admittedly the original plaintiff, the husband of the first respondent passed away. However, that fact was not known to the counsel for the original plaintiff. When the matter was called on 07.10.2002 on which date the suit was posted for trial in the list, the suit was dismissed for default, as the original plaintiff did not appear. It is very unfortunate that even if the original plaintiff did not appear on that day, the petitioner herein being brother of the original plaintiff should have informed the Court about the death of the original plaintiff. It is seen no such information was given by the petitioner/defendant and it only shows that he was only interested in getting the suit dismissed somehow. 7.The respondents categorically stated in paragraph 5 of the affidavit that they did not know about the pendency of the case and after death of the original plaintiff, when they demanded partition of the property, the petitioner herein informed the respondent herein that the suit filed by the first respondent's husband was already dismissed. Only after coming to know about those facts only the application was filed. It is very clear that there was no occasion for the respondents to know about the pendency of the proceedings. In all fairness, being the brother of the original plaintiff, the petitioner herein should have informed the Court on 07.10.2002 about the death of the original plaintiff. The trial Court is convinced with the reasons given by the petitioner and allowed the petition. Even otherwise this Court is very much convinced with the reasons for condoning the delay. Though it is too long, circumstances beyond their control only, the respondents could https://hcservices.ecourts.gov.in/hcservices/ 3 not file the petition in time. Therefore, justified well reason is there to condone delay. 8.Mr.M.Rajarajan learned counsel for the petitioner raised a valid point that without filing an applications for setting aside the abatement and to condone delay in filing to set aside the abatement, the condone delay petition to file set aside petition cannot be filed. The parties are approached only to give proper advice and to file appropriate application as they do not know law. In this case, no due care was taken to file applications to set aside the abatement and petition to file condone delay in filing setting aside abatement. For the fault of somebody else, the parties should not be prejudiced. The learned counsel for the respondents orally prayed to condone delay in filing the abatement petition and set aside the abatement. In order to render substantial justice, this court suo muto accepted the request and condone delay in filing set aside abatement and set aside the abatement. In view of that there will not be any technicality in allowing the condone delay petition, which was allowed by the trial Court rightly and the same is being confirmed by this Court. 9.As stated above, there is justifiable reason given by the respondents as to why the suit was dismissed for default and as to why set aside petition could not be filed in time Therefore, there will not be any prohibition for the trial Court even to restore the suit by allowing the set aside petition. This Court is convinced that the condone delay petition is to be allowed on merits without cost. However, the trial Court allowed the petition on payment of Rs.2,000/- as cost. Therefore, the order passed by the trial Court is allowing the application on payment of Rs.2,000/- is set aside and the trial court is directed to return the cost of Rs.2,000/- to the respondent. The C.R.P. is dismissed with the above directions. Consequently, connected miscellaneous petition is also closed. No costs. Sd/- Assistant Registrar (RTI) / TRUE COPY / Sub Assistant Registrar To: The Subordinate Judge, Pudukkottai. Skn RP/13.07.2011/3P/2C. C.R.P.(PD)(MD)No.1188 of 2011 and M.P(MD)No.1 of 2011 30.06.2011. https://hcservices.ecourts.gov.in/hcservices/