IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.08.2007 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM C.R.P.(NPD) No.2127 of 2007 and M.P.No.1 of 2007 1.Tmt. Manimegalai 2.Minor Yuvasri (Minor petitioner is rep. by her mother) ... Petitioners. Vs. 1.Tmt.Saraswathi 2.Meera 3.Gomathi ... Respondents Civil Revision petition against the Order dated 18.06.2007 passed by the learned Subordinate Judge, Kanchipuram, made in I.A.No.23 of 2007 in O.S.No.89 of 2002. For petitioners : Mr.G.Jermiah For Respondents : Mr.S.D.N.Vimalanathan O R D E R
The petitioners, who are shown as defendants in O.S.No.89 of 2002 and who suffered an exparte decree in a suit for cancellation of the earlier partition, have brought forth this Civil Revision petition.
2. Challenge is made to the order in I.A.No.23 of 2007 whereby they sought condonation of delay of 355 days in making the application to set aside the exparte decree.
3. The respondents herein filed O.S.No.89 of 2002 for the relief of cancellation of the alleged partition of the year 1995 and for other reliefs. It is not in controversy that these petitioners, who are shown as defendants, entered appearance and filed written statement. After framing issues, the matter was posted for trial finally during December, 1995. PW1 was examined in chief and cross-examined in part and it was adjourned for number of occasions. Neither the defendants nor the counsel was present and thus the exparte decree came to be passed. In order to set aside the exparte decree, an application was filed. In doing so, there was a delay of 355 days. In order to condone the delay, I.A.No.23 of 2007 was filed. On contest, the said application was dismissed. Now the revision has arisen at the instance of the petitioners/defendants.
4. The only contention put forth by the learned counsel for the petitioners is that the first petitioner is aged about 23 years, who has lost her husband, thus she is a widow and the second petitioner is a minor aged about 3 years and apart from this, in the instant case, the defendants actually contested the matter by engaging a counsel and by filing written statement and the first petitioner, in view of the loss of her husband, was not able to get instructions in time and thus, unable to prosecute the case. Thus, a delay of 355 days has occasioned. But taking into consideration the age of the petitioners, and the other circumstances, the lower Court should have allowed the application. But, on the contrary, dismissed the application, relying on the finding that there was no sufficient cause to condone the delay and hence the delay has got to be considered.
5. In answering to the above, learned counsel for the respondents/plaintiffs would submit that the matter was posted on 20.12.2005 for the trial and on the said date, PW 1 was examined and cross-examined in part and number of adjournments were given, which was not utilized by the petitioners. But they filed an application after a delay of 355 days and sufficient cause was not shown to such delay. In view of the same, the lower court has rightly dismissed the application. Added further, there was a claim made on the death of the husband of the first petitioner and an amount was also received from the Life Insurance Corporation of India to the extent of Rs.8 lakhs, in which, not only the petitioner,a but also her aged mother-in-law is also entitled to have a share and the entire amount was actually received by the first petitioner and she has not even deposited the minor’s share or nor she has given any amount to the first respondent/mother-in-law. But, she has retained the entire amount of Rs.8 lakhs. Under the circumstances, a direction has got to be issued to make the payment of mother-in-law’s share and also for deposit of the minor’s share into the Court. Added further, learned counsel, that in respect of the claim of Life Insurance Corporation, an independent application has been made and it is now pending proceedings in O.S.No.89 of 2002 and necessary orders were awaiting from that Court.
6. After careful consideration of rival submissions made, this Court is of the considered opinion that it is not the fact in controversy that the suit was filed in the year 2002 and the revision petitioners have already entered appearance through counsel and vehemently contested the suit. The suit was posted for trial on 20.12.2005, as could be evident from the available material and PW1 was examined in chief and cross-examination of PW1 was done in part. Further cross-examination was not done though number of adjournments were given. Under the circumstances, exparte decree came to be passed. Following the same, an application was filed in I.A.No.23 of 2007 in order to condone the delay of 355 days in making the application to set aside the exparte decree. The lower Court was not prepared to accept the reason and hence dismissed the application. Now this Court is of the considered opinion that the application has got to be allowed in view of the circumstances that the first petitioner is aged about 23 years that she lost her husband and thus, she is a young widow; the second petitioner is minor aged about 3 years, who is the daughter of the first petitioner and they are the revision petitioners before this Court and the defendants before the lower Court and the suit was filed for cancellation of the earlier partition seeking for fresh partition. Under such circumstances, since the property belonged to the joint family, in which, the husband of the first petitioner was also a member, the Court is of the considered opinion that in the interest of justice, it is a fit case, where she might be given an opportunity to put forth her defence and thus, the application has got to be ordered. True it is, there was a delay of 355 days ordinarily and that too in a case where PW1 was examined in chief and cross examination was done in part. Under such circumstances, this delay, subsequently caused by the party for her absence, has got to be condoned. Hence, this Court is of the considered opinion that liberal approach has got to be taken in a case like this and it would be suffice to condone the delay. Applying the same, the delay of 355 days has got to be condoned and the order of the lower Court is set aside. The application is ordered. The lower court is directed to proceed with the matter from the stage where it was stopped and also to dispose of the matter within a period of three months from the date of the order on merits and in accordance with law. It is brought to the notice of the Court that the first petitioner has received Rs.8 lakhs from the LIC on the death of her husband, for which herself and also the second petitioner minor and mother-in-law, who is the first plaintiff have got share. It is further averred by the learned counsel for the respondents that an application is made in this regard and now it is also pending. If to be so, after giving opportunity to the first petitioner herein, who is the first defendant to file her counter, the lower Court is directed to take a decision in that application and at the same time, the Court, while passing the order, must be taken into consideration the minor’s share, who is the second petitioner herein, and pass orders accordingly. The interest of minor, who is second petitioner herein aged about 3 years, must be protected properly, till she attains majority.
7. The Civil Revision Petition is disposed of. No costs. Consequently, MP.No.1 of 2007 is closed.
VJY
To
The Subordinate Judge,
Kanchipuram,