R. SUBRAMANIAM AND ANR. Vs. RANGAMMAL

JUDGEMENT

(1.) This Civil Revision Petition is filed to set aside the fair and decretal order dated 07.02.2015 made in I.A.No.551 of 2013 in O.S.No.728 of 2005 on the file of the II Additional District Munsif, Coimbatore.

(2.) The petitioners are plaintiffs and respondent is the defendant in O.S.No.728 of 2005 on the file of the II Additional District Munsif, Coimbatore. The petitioners filed the said suit against the respondent for mandatory injunction directing the respondent to remove the unauthorised and illegal thatched shed put up in the suit property and for permanent injunction restraining the respondent from putting up further construction in the suit property. The respondent filed written statement and subsequently, did not contest the suit. The respondent was set exparte on 08.12.2010 and exparte decree was passed on 16.12.2010. The respondent filed I.A.No.551 of 2013 to condone the delay of 1014 days in filing the application to set aside the exparte decree. According to the respondent, from June 2010, she was suffering from Osteoarthritis and Lumbosacral Spondilitis disease and she could not contact her Advocate and appear before the Court as instructed by her Advocate. The earlier Advocate returned the case bundle to her on 23.07.2010. Due to her illness, she could not appear before the Court and engage new Advocate. She came to know about the exparte decree only when she received a notice in E.P.No.120 of 2013. Therefore, the delay is neither wilful nor wanton.

(3.) The petitioners filed counter affidavit and denied the allegations that respondent was suffering from illness as stated in the petition. The notice sent in E.P.No.120 of 2013 by RPAD was returned with an endorsement as "Addressee absent and intimation served". The respondent has obtained medical certificate only using her influence. The respondent or the Doctor who gave the certificate has not submitted the summary report of the patient. When the earlier counsel returned the bundle, the respondent ought to have engaged new counsel immediately and ought to have prosecuted the case. The reason given by the respondent is not valid and bonafide.