LAWS(MAD)-2014-2-104

THAMBIYAPPAN @ SUBRAMANI Vs. K. RATHINAVELU

Decided On February 25, 2014
Thambiyappan @ Subramani Appellant
V/S
K. Rathinavelu Respondents

JUDGEMENT

(1.) THAMBIYAPPAN @ Subramani, the first defendant in O.S.No.157 of 2005 on the file of the Court of District Munsif, Thirupattur, Vellore District is the petitioner in the revision petition. K.Rathinavelu, the plaintiff in the said suit is the respondent in the revision petition.

(2.) THE respondent herein filed the above said suit against the revision petitioner and eight other persons for declaration of his title and permanent injunction against the defendants not to disturb his peaceful possession and enjoyment of the suit properties. In the said suit, one Sivaprakasam, who is none other than the son of the revision petitioner, had been arrayed as the 9th defendant and he filed a written statement contending that he had purchased the suit property from the other defendants, namely defendants 1 to 8 and was in peaceful possession and enjoyment of the same. It was also contended therein that neither the respondent herein/plaintiff nor the other defendants (D1 to D8), including the revision petitioner herein, did have any right, title or possession in respect of the suit property and that the said suit came to be filed based on forged documents and false averments. Out of the 9 defendants, 4th defendant Kaliyammal died. Second defendant Masilamani and the six defendant Aanchi did not enter appearance and failed to contest the case. Hence, they were set ex parte. All other defendants, including the revision petitioner, entered appearance by engaging one Mr.T.Sridharan, Advocate. Since they did not file written statement, after several extensions of time came to be given, the defendants 1, 3, 5 and 6 to 9 were set ex parte on 28.04.2006. After setting them ex parte, the suit was adjourned to 09.06.2006 for recording ex parte evidence. On 09.06.2006, ex parte trial was conducted in which the plaintiff appeared as PW1 and 8 documents were marked as Exs.A1 to A8. Based on the said evidence, the learned trial Judge decreed the suit as prayed for with costs by judgment and decree dated 09.06.2006.

(3.) THE learned trial Judge passed a conditional order on 29.01.2007 allowing the said application I.A.No.901 of 2006 on condition that a sum of Rs.250/ - should be paid to the plaintiff on or before 06.02.2007. The said costs was not paid. When the matter was again called on 07.02.2007, it was reported on behalf of the plaintiff that the condition was not complied with and the cost awarded therein was not paid. Recording the same, the learned trial Judge dismissed the said application by order dated 07.02.2007. Thereafter, without disclosing the same and suppressing the fact that his earlier petition filed along with the other defendants had been dismissed, another petition came to be filed as I.A.No.1038 of 2007 for the very same relief, namely to set aside ex parte decree dated 09.06.2006 along with I.A.No.1037 of 2007 under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the ex parte decree. In order to avoid unnecessary delay, the trial Court took the application filed under Section 5 of the Limitation Act on file as I.A.No.1037 of 2007 and the application filed under Order IX Rule 13 CPC as I.A.No.1038 of 2007.