V. RADHAKRISHNAN Vs. P. RADHAKRISHNAN

JUDGEMENT

(1.) The petitioner in C.R.P.No.683 of 2009 is the plaintiff in O.S.No.69 of 1982 on the file of the Sub Court, Chengalpet. The petitioner in C.R.P.No.684 of 2009 is the defendant in O.S.No.263 of 1981 on the file of the Sub Court, Chengalpet. In both the civil revision petitions, the petitioner is one and the same. The petitioner filed the said suit in O.S.No.69 of 1982 against the respondents herein for permanent injunction. The respondents herein filed the other suit in O.S.No.263 of 1981 for declaration and injunction. Both suits are in respect of the same properties and are tried together and a common judgment was delivered on 05.07.1983, whereby the petitioner's suit in O.S.No.69 of 1982 came to be decreed and the respondents' suit in O.S.No.263 of 1981 came to be dismissed. Thus, the respondents filed A.S.No.150 and 151 of 1993 on the file of the District Court, Chengalpet wherein a common judgment was made on 01.10.1984, by remanding the suits to the trial court for fresh consideration and disposal. Consequent upon such remand, on 17.11.1984, O.S.No.263 of 1981 filed by the respondents came to be decreed exparte while O.S.No.69 of 1982 filed by the petitioner came to be dismissed for default. Within 30 days, the petitioner filed I.A.Nos.122 and 123 of 1985 seeking to set aside the exparte decree as well as for restoration of the suit respectively. The said applications were, however, dismissed for default on 27.07.2001. After nearly six years, the petitioner filed I.A.Nos.787 and 848 of 2007, under section 5 of the Limitation Act, for condonation of delay of 2,121 days in restoring those I.A.Nos.122 and 123 of 1985. The said applications were dismissed by the court below. Aggrieved against the same, the present civil revision petitions are filed.

(2.) Heard the learned counsel appearing for the petitioner and the respondents.

(3.) Mr.A.Muthukumar, learned counsel appearing for the petitioner contended that only due to the negligence of the counsel in lower Court, the petitioner could not file the application immediately. In both the suits, the petitioner has merits to succeed. When the application to set aside the exparte decree and restore the suit were filed within 30 days, the present application filed for condonation of delay in restoring those applications ought to have been allowed. He also contended that the exparte decree passed against the petitioner is not a valid one and thus, such decree is a nullity. When the decree passed was without adjudication of the rights of the parties, it can be set aside. In support of his submission, he relied on the following decisions: