C.R.P.(PD).No. 749 of 2020 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17.02.2025 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA C.R.P.(PD).No. 749 of 2020 M.Mani ...Petitioner Vs. 1.Kavitha Vasantha (died) 2.Minor Dinesh Kumar 3.Minor Mahalakshmi 4.Dhanabackiyam 5.Raju 6.Thulasiraman 7.Thulasi 8.Kasi 1/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 9.Chinnapillai 10.Krishnan ...Respondents Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dt. 25/11/2019 passed in I.A.No.42/ 2011 in unnumbered Appeal Suit of 2011 on the file of the Sub Court, Rasipuram. For Petitioner : Mr. S.Senthil For Respondents : No Appearance. O R D E R Challenging the dismissal of his application for condoning the delay of 626 days in preferring the First Appeal before the Sub Court, Rasipuram, the petitioner is before this Court. The brief facts are set out herein below. 2. The petitioner is the 3rd defendant in a suit for partition. He is 2/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 a purchaser from the co-owners. The suit was decreed ex parte by Judgement dated 18.11.2009. The petitioner challenged this Judgement with a delay in the year 2011 by filing an appeal before the Sub Court, Rasipuram. In the said appeal, he had taken out an application in I.A.No.42 of 2011 for condoning the delay of 626 days in filing the appeal. 3. In the affidavit filed in support of the condone delay petition, the petitioner would submit that he had received summons in the suit and he had approached the defendants 1 and 2, in the suit, who are respondents 6 and 7 in the appeal, who had entered into an agreement of sale with him. They assured the petitioner that they would contest the suit for and on his behalf as well and would keep him informed about the case. 4. The petitioner who is a coconut merchant is mostly away on work. Therefore, since defendants 1 and 2 had promised to take care of the suit, the petitioner trusted them in entirety. However, contrary to 3/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 their assurance, they had not kept him posted with any details. It is only when the notice in the final decree proceedings was received by him, did the 3rd defendant come to know about the decree which had gone against him. Immediately, the petitioner has taken steps to file an appeal, however with a delay. The petitioner would submit that the delay is neither wilful nor wanton. 5. The 4th respondent herein filed a counter denying the contentions raised by the petitioner. She would submit that even after receiving notice in the final decree proceedings, the petitioner has not immediately approached the Court. Therefore, the application has to be dismissed. 6. It is seen that before the Appellate Court, the parties adduced evidence in I.A.No.42 of 2011. Ultimately, the learned Sub Judge, Rasipuram, had proceeded to dismiss the said application on the ground that even after receipt of the final decree proceedings the petitioner had taken 626 days to prefer an appeal. This appears to be the basis on 4/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 which the condonation of delay was rejected. 7. Challenging the same, the petitioner is before this Court. 8. Heard the learned counsel perused the records. 9. The non application of the mind on the part of the learned Appellate Judge is manifest from the fact that it is the petitioner's case that it was only he had received notice in the final decree proceedings that he had come to know about the ex parte order. The notice in the final decree proceedings was received by the petitioner on 25.02.2011 and the appeal has been filed in the month of September 2011. However, the learned Sub Judge has proceeded to dismiss the petition for condonation of delay on the ground that even after getting the notice in the final decree proceedings, it has taken the 3rd defendant 626 days to file an application for condoning the delay. 10. This observation on the face of the records is per se 5/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 erroneous. This erroneous approach has led to the dismissal of the application for condoning the delay. Further, the respondents have not vehemently contested the condone delay petition. Even in this revision, though the 1st respondent has been served on 28.02.2020 through Court she has not entered appearance and contested the revision. 11. Therefore, the order under challenge has to necessarily be set aside. Accordingly, the Civil Revision Petition is allowed, on condition that the civil revision petitioner pays a sum of Rs.5,000/- to the Madras High Court Advocates Welfare Association, by 10.03.2025. No costs. 12. Post the matter under the caption “For Reporting Compliance” on 12.03.2025. 17.02.2025 Index : Yes/No Internet : Yes/No 6/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 kan To The Sub Judge, Rasipuram. 7/8 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 749 of 2020 P.T. ASHA, J, kan C.R.P.(PD).No. 749 of 2020 17.02.2025 8/8 https://www.mhc.tn.gov.in/judis