Subramanian Vs Fathima Ammal by her power agent S. Humaiyun Kabeer

@JUDGMENTTAG-ORDER

S. Tamilvanan, J.@mdashHeard both the learned Counsel appearing for the Petitioner as well as the Respondent.

2. This Civil Revision has been preferred, challenging the order, dated 30.10.2009 passed in I.A. No. 424 of 2009 in O.S. No. 70 of 2007 on the file of the District Munsif Court, Thiruthuraipoondi.

3. The Petitioner herein is the Defendant in the suit, that was filed by the 2 Respondent herein, seeking bare injunction and other consequential relief in respect of an immovable property, described in the plaint schedule of property.

4. The impugned order, dated 30.10.2009 relates to the Interlocutory Application in I.A. No. 424 of 2009 filed u/s 5 of Limitation Act to condone the delay of 445 days in filing the petition to set aside an exparte decree passed in the suit in O.S. No. 70 of 2007 on 07.11.2007.

5. After considering the arguments advanced by both the learned Counsel and also the averments of pleadings made by the Petitioner as well as the Respondent, the petition was dismissed by the trial court. Aggrieved by which, the revision has been preferred.

6. Learned Counsel appearing for the Petitioner submitted that after the exparte decree, the Petitioner approached village panchayatdars and that was settled and hence, the Petitioner could not file a petition under Order 9 Rule 13 Code of Civil Procedure, immediately after the exparte decree. According to the Petitioner, he is in possession and enjoyment of the property by putting up superstructure.

7. Learned Counsel appearing for the Respondent submitted that the 3 Petitioner is a former president of the village panchayat and he is no way connected with the suit property. His property is situated nearby the suit property, hence, after the exparte decree, he did not file any petition under Order 9 Rule 13 CPC to set aside the exparte decree and subsequently, he had violated the decree and hence, the Respondent filed contempt application and subsequently, Execution Petition was also filed. In the said Execution Petition, the Petitioner herein appeared through counsel, however, he failed to file any petition to set aside the exparte decree. Learned Counsel for the Respondent also drew the attention of this Court to the findings of the Court below.

8. As per the order passed by the Court below, it is seen that the Respondent herein filed Execution Petition in E.P. No. 30 of 2008, in which he filed E.A. No. 88 of 2008, seeking police protection, in which the Petitioner appeared through his counsel on 25.08.08, 28.08.08, 9.9.08, 26.09.08, 13.10.08, 15.10.08, 29.10.08, 5.11.08, 12.11.08, 26.11.08, 17.11.08, 31.12.08, 2.1.09. Though he had knowledge about the exparte decree, no application was filed by the Petitioner in time to set aside the exparte decree. It is seen further that there was no supporting document to show that the Petitioner is having any substantial right in the property.

9. Learned Counsel appearing for the Petitioner submitted that the Court 4 has to take a liberal view in deciding the petition filed u/s 5 of Limitation Act. In support of his contention, he relied on the decision, Adhikesavan Vs. Kalavathi, , wherein this Court (A.C.ARUMUGAPERUMAL ADITYAN, J), referring various decisions of the Hon''ble Apex Court and this Court held that when an exparte decree was passed due to the fact that the counsel for the Defendant did not intimate about the hearing, the same is liable to set aside, since the Defendant had not committed any deliberate act.

10. In the instant case, the Petitioner had not established the fact that the default was committed by his lower court counsel. Having appeared through his counsel, the Petitioner cannot raise a defence that he was not aware of the decree till the date of filing the petition, after appearing before the Executing Court.

11. This Court in Kaliammal, Ardhanari, Valliammal and Kottathooran Vs. Sundharammal and Ramalingam, (R.BANUMATHI, J) has held in a similar case that though a petition for condonation of delay was filed for a short period of 32 days, as the Petitioner had knowledge about the exparte decree and failed to file a petition to set aside the decree immediately, the delay was construed as deliberate and found that the trial court has exercised its discretion refusing to condone the delay, as 5 Revisional Court, this Court would not interfere with the same, as the order was not perverse.

12. In the instant case, the Petitioner has not satisfactorily explained the delay, as contemplated u/s 5 of Limitation Act. Similarly, there is no circumstances to establish that there would be failure of substantial justice, if the revision petition is not allowed. Admittedly, bare injunction was granted by the trial court against the Petitioner/tenant, in spite of the Execution Petition filed by the Respondent herein and after appearing on various dates, the Petitioner has not chosen to file any petition under Order 9 Rule 13 CPC before the trial court, to set aside the exparte decree. On the aforesaid facts and circumstances, the delay caused by the Petitioner has to be construed as deliberate, as per law.In the light of various decisions of the Hon''ble Apex Court and this Court, I am of the view that the revision is liable to be dismissed.

13. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there is no order as to costs.