C.R.P.(PD)(MD).No.771 of 2019 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.04.2024 CORAM: THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR C.R.P.(PD)(MD)No.771 of 2019 and C.M.P(MD) No.4706 of 2019 P.Prakash ... Petitioner/Respondent/ Plaintiff -vs- N.Krishnaraj (Died) 1. Kamalini 2. Minor Krishnalini 3. Minor Rakshana ... Respondents/Applicants Defendants (The minors 3 and 4 are represented by their mother and guardian and next friend Kamalini). PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decreetal order dated 01.04.2019 made in I.A.No.1 of 2019 in O.S.No.194 of 2015 on the file of the III Additional District Munsif Court, Tiruchirappalli. For Petitioner : Mr.P.Arun Jayatram For Respondents : Mrs.P.Krishnaveni – for R1 1/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.771 of 2019 O R D E R The plaintiff in O.S.No.194 of 2015 on the file of the III Additional District Munsif Court, Tiruchirappalli is the revision petitioner. 2. The plaintiff has filed the said suit for permanent injunction. The plaintiff had examined himself as P.W.1 and he was cross-examined by the Court appointed guardian for the defendants 3 and 4. Thereafter, when the suit was posted for letting evidence on the side of the defendants, there was no response and the defendants had remained exparte. 3. Thereafter, based upon the evidence let in on the side of the plaintiff, an exparte decree came to be passed on 31.07.2018. The defendants had filed I.A.No.1 of 2019 on 21.01.2019 to set aside the set exparte decree. The plaintiff/decree holder had filed a counter contending that an application under Order 9 Rule 13 has been filed with a delay. The said application is not maintainable without filing a condone delay application. The trial Court after arriving at a finding in favour of the plaintiff had allowed the application under Order 9 Rule 13 C.P.C. Challenging the same, the present Civil 2/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.771 of 2019 Revision Petition has been filed. 4. According to the learned counsel appearing for the revision petitioner, all the findings have been rendered by the trial Court in favour of the plaintiff/decree holder, but in the last line, the trial Court had allowed the application filed under Order 9 Rule 13 of C.P.C. Therefore, no reasons have been assigned by the trial Court for allowing the condone delay application under Order 9 Rule 13 of C.P.C. That apart, without filing any condone delay application or explaining the reasons for the delay, the Court ought not to have allowed the application. 5. 5. The learned counsel appearing for the respondents, defending the order of the trial Court had contended that an independent application to condone the delay is not necessary, if the reasons have been assigned for the delay in the main application itself. She further contended that due to viral fever, the parties could not appear on 31.07.2018. Hence, the exparte decree came to be passed. Considering the said circumstances, the trial Court had allowed the application and granted an opportunity to the parties to defend the suit. Therefore, the order of the trial Court may not be interfered with. 3/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.771 of 2019 6. I have carefully considered the submissions made by the learned counsel on either side and perused the materials available on record. 7. The present suit has been filed for the relief of permanent injunction. The plaintiff has examined himself as P.W.1 and he was cross-examined by the counsel for the defendants. However, the matter was posted for letting evidence of the defendants, but they have not turned up. Since they have remained exparte, an exparte decree came to be passed, based upon the evidence let in by P.W.1 and documents filed on the side of the plaintiff. 8. A perusal of the affidavit filed by the defendants would reveal that they have explained reasons for their non-appearance on 31.07.2018. However, when an application is filed under Order 9 Rule 13 of C.P.C with a delay, the reasons for the delay ought to have been mentioned in the same affidavit itself, if not by way of a separate application. However, no such explanation is forthcoming in the affidavit filed in I.A.No.1 of 2019, for filing the said application with a delay of 143 days. 9. The trial Court categorically found that the defendants have not 4/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.771 of 2019 established the fact that they were suffering from viral fever and they have not filed any document to establish the same. However, the trial Court has proceeded to allow the application without assigning any reasons whatsoever. Therefore, this Court is of the opinion that the order of the trial Court is not sustainable. 10. Accordingly, this Civil Revision Petition stands allowed and I.A.No.1 of 2019 in O.S.No.194 of 2015 on the file of the III Additional District Munsif Court, Tiruchirappalli, stands dismissed. There shall be no order as to costs. Consequently connected Miscellaneous Petition is closed. 10.04.2024 NCC : Yes/No Index : Yes / No Internet : Yes / No ebsi To 1. The III Additional District Munsif, Tiruchirappalli. 5/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.771 of 2019 R.VIJAYAKUMAR,J. ebsi C.R.P.(PD)(MD)No.771 of 2019 10.04.2024 6/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.771 of 2019 7/7 https://www.mhc.tn.gov.in/judis