Madras High Court
OSA/301/2022 of KAMALA BAI NAHAR Vs Sharmila Nahar on 29 September 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29-09-2026
CORAM
THE HON'BLE MR JUSTICE P. VELMURUGAN
AND
THE HON'BLE MR.JUSTICE GK.MUTHUKUMAAR
O.S.A.Nos.301 & 308 of 2022
C.M.P.No.20523 & 21606 of 2022
CNR: {HCMA011613172022}
1. Kamala Bai Nahar
W/o.Shanthilal Nahar, No.189/2, V.M,Street, Royapettah, Chennai 600 014.
2. Mrs.Bhavana
W/o.Late Ramesh Nahar, No.189/2, V.M,Street, Royapettah, Chennai 600 014.
3. Mr.Anmol Nahar
S/o.Late Ramesh Nahar, No.189/2, V.M,Street, Royapettah, Chennai 600 014.
4. Roshini Nahar (Minor)
D/o.Ramesh Nahar, Minor Rep. by mother and natural guardian Mrs.Bhavana, No.189/2,
V.M,Street, Royapettah, Chennai 600 014.
..Appellants in
O.S.A.No.301/22
Shanthilal Nahar
S/o.Roopchand Nahar 189/2 V.M.Street,
Royapettah, Chennai-600014.
..Appellant in
O.S.A.No.308/22
Vs.
1. Sharmila Nahar
W/o..Ramesh Nahar, Both at No.189/2,
V.M.Street, Royapettah, Chennai 600 014.
2. Aryan Nahar
S/o.Ramesh Nahar, (2nd Plaintiff declared as major and 1st plaintiff is discharged from guardianship as per order dt. 22.01.2020 in Appln.No.77 and 78/2020) res at No.189,
V.M.Street, Royapettah, Chennai-600014.
3. Mr.Shanthilal Nahar
S/o.Roopchand Nahar 189/2 V.M.Street,
Royapettah, Chennai-600014
4. Ms.Santhoshini Marguerita Dezoysa
D/o.Ainsleyclive Dezoysa, No.54, Cotta Road, Borella Colombi - 8 Srilanka.
..Respondents in
O.S.A.No.301/22
1. Sharmila Nahar, W/o..Ramesh Nahar,
No.189/2, V.M.Street, Royapettah, Chennai - 600 014.
2. Aryan Nahar, S/o.Ramesh Nahar,
No.189, V.M.Street, Royapettah, Chennai - 600014.
3. Kamalabai Nahar, W/o.Shanthilal Nahar, No.189/2, V.M.Street, Royapettah, Chennai – 600 014.
4. Bhavana, W/o.Ramesh Nahar,
No.189/2, V.M.Street, Royapettah, Chennai – 600 014.
5. Anmol Nahar, S/o.Ramesh Nahar
Minor Represented by Mother & Natural Guardian Bhavana No.189/2, V.M.Street, Royapettah, Chennai – 600 014.
6. Roshini Nahar, D/o.Ramesh Nahar
Minor Represented by Mother & Natural Guardian Bhavana No.189/2, V.M.Street, Royapettah, Chennai – 600 014.
7. Santhoshini Margueritta Dezoysa, D/o.Ainleyelive Dezoysa, No.54, Cotta Road, Borella, Colombo – 8, Srilanka..
Respondents in
O.S.A.No.308/22
Prayer in both the OSAs: These Original Side Appeals are filed under Order XXXVI Rule 1 of Original Side Rules r/w Clause 15 of the Amended Letters Patent, 1865, to set aside the common order passed in Application Nos.969 &
314 of 2022 in C.S.No.330 of 2012 dt.29.07.2022 and allow the appeal by condoning the delay of 1070 days in filing the petition to set aside the exparte order, respectively.
For Appellants:
T.C.S.Raja Chockalingam in O.S.A.No.301/22
Mr.E.Prabu in O.S.A.No.308/22
For Respondents:
Mr.R.Ramanlaal, Senior Counsel for
Mr.S.Selvaraj for R1 & R2
No Appearance for R3
R4 – Ex-parte in C.S.No.330/2012
- in O.S.A.No.301/22
Mr.R.Ramanlaal, Senior Counsel for
Mr.S.Selvaraj for R1 & R2
Mr.T.C.S.Raja Chockalingam for R3 to R6
No Appearance for R7
- in O.S.A.No.308/22
******
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COMMON JUDGMENT
(Judgment of the Court was delivered by P.Velmurugan J.) The respondents 1 & 2 in both the suits are the plaintiffs in C.S.No.330 of 2012 filed for partition and other consequently reliefs. The appellants in both the appeals are the defendants.
The said suit in C.S.No.330 of 2012 came to be decreed ex-parte and hence the appellants filed the applications in A.Nos.969 & 314 of 2022 in C.S.No.330 of 2012 seeking to condone the delay in filing of applications to set aside the ex-parte decree.
The learned Single Judge observed that the appellants/defendants were given sufficient opportunities to contest the suit, but they did not comply with the conditional order of payment and after lapse of nearly four years, when the Court decreed the suit ex-parte, the appellants approached the Court seeking to condone the delay of more than 1000 days and hence dismissed the applications, vide order dated 29.07.2022.
Aggrieved against the order of the learned Single Judge dated 29.07.2022 dismissing the applications seeking to condone the delay of more than 1000 days in filing applications to set aside the ex-parte decree dated 20.07.2018, the appellants are before us with the present Original Side Appeals.
According to learned counsel for the appellants, due to age and health ailments of the appellant in O.S.A.No.308 of 2022, against whom the respondents 1 & 2/plaintiffs sought relief in the Civil Suit, they could not approach the counsel to give instructions and file written statement in the suit in time.
The learned Senior Counsel for the respondents 1 & 2/plaintiffs argued that the appellants/defendants were given sufficient opportunities to contest the suit, but they wantonly did not either file written statement in time or application to set aside the ex-parte decree. Further they kept quite for a more than two years and allowed the Court to pass ex-parte decree. The appellants/defendants now filed the present applications only to defeat the rights of the plaintiffs. Therefore the learned Single Judge rightly dismissed the applications, which needs no interference.
We have heard the learned counsel for the appellants and the learned Senior Counsel for the respondents 1 & 2 and perused the materials available on record.
It is seen that the appellants had not filed their written statement within the prescribed time and hence they were set ex-parte on 30.04.2014. The defendants, who are the appellants herein filed applications Nos.2603 & 2612 of 2014 to set aside the ex-parte order, which were dismissed for default. Hence they have filed Application Nos.8084 & 8085 of 2015 to restore the A.Nos.2603 & 2612 of 2014, in which, a conditional order of payment was passed and since the appellants/defendants did not comply with the conditions, the said Applications were also dismissed for default.
Thereafter the suit came to be decreed ex-parte on 20.07.2018. Hence the appellants/defendants had filed the present applications in Application Nos.969 & 314 of 2022 in C.S.No.330 of 2012 to condone the delay occurred in filing petition to set aside the said ex-parte decree dated 20.07.2018.
A careful perusal of the order impugned in the Original Side Appeals reveal that the appellants/defendants were given sufficient opportunities to contest the suit. Even though a litigant should not generally suffer due to the lapse, mistake, or negligence of their advocate in procedural formalities, in the present case it is seen that originally the appellants/defendants were set ex-parte on 30.04.2014 and the defendant filed applications to set aside the ex-parte order in the year 2014 itself. Thereafter the appellants allowed the said applications dismissed for default and thereafter again filed applications in A.Nos.8084 & 8085 of 2015 to restore to said applications, in which conditional order was passed and the appellants/defendants did not comply with the said conditions too and hence the said petitions were also dismissed for default on 21.01.2016.
Thereafter the Civil Suit in C.S.No.330 of 2012 came to be decreed ex-parte on 20.07.2018. The appellants/defendants kept quite for all these years and in the year 2022, they filed the present applications seeking condonation of delay of more than 1000 days in filing applications to set aside the ex-parte decree passed on 20.07.2018.
The appellants/defendants have not explained the inordinate delay with sufficient cause. The only reason assigned by the appellants/defendants is that due to age and health ailments the first defendant could not contest the suit, but the same could not be acceptable and would not suffice for condoning the inordinate delay in every stage of the suit.
For the foregoing observations and reasons, we are of the considered view that there is no merit in the appeals and the same are dismissed accordingly. Consequently connected miscellaneous petitions are closed. Considering the relationship of the parties, there shall be no order as to costs. (P.V.,J.) (G.K.M.,J.) 29-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No cgi
P.VELMURUGAN, J. AND GK.MUTHUKUMAAR, J. cgi O.S.A.Nos.301 & 308 of 2022 C.M.P.No.20523 & 21606 of 2022 29-09-2026