CRP(MD)/2480/2022 of Pavunthai (Died), R. Raveend Vs R. Anandhamohan on 21 September 2026

ORDER

This Civil Revision Petition has been filed challenging the fair and decreetal order passed by the Sub Court, Theni, made in CMA No.1 of 2016, dated 01/12/2018.

2. The suit in O.S.No.266 of 2006 was filed for partition and separate possession. The petitioner is the 5th defendant in the said suit. An ex-parte decree came to be passed against the petitioner and his mother, on 25/09/2006 on account of their non-appearance and failure to file their written statement.

3. The learned counsel appearing for the petitioner states that due to a communication gap between him and his counsel, he was unable to properly instruct his counsel and file the written statement in time. It is further submitted that the counsel who appeared on behalf of the petitioner was an aged person and due to certain difficulties, could not effectively communicate with the petitioner. Hence, the petitioner filed a petition on 19/10/2006 seeking to set aside the ex-parte decree. The said petition was dismissed by the Trial Court holding that the reason assigned by the petitioner was not acceptable. Aggrieved by the same, the petitioner preferred C.M.A.No.4 of 2016. The learned First Appellate Court also concurred with the findings of the Trial Court and dismissed the appeal. Hence, the present Civil Revision Petition has been filed.

4. The learned counsel appearing for the petitioner submitted that there was no deliberate or wilful negligence on the part of the petitioner. Though the petitioner had been represented through counsel, due to the communication gap and the age of the counsel, the petitioner was not made aware of the effective progress of the proceedings. It is further submitted that the ex-parte decree was passed on 25/09/2006 and immediately thereafter, the petitioner filed the petition to set aside the same on 19/10/2006. Therefore, there was no delay in approaching the Court for setting aside the ex-parte decree.

5. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that the petitioner had been represented through counsel on several hearings and was fully aware of the pendency of the suit. Despite the same, he had failed to participate effectively in the proceedings and had not filed his written statement. It is, therefore, contended that the reason of communication gap between the petitioner and his counsel cannot be accepted. It is further submitted that the proceedings have been pending for nearly two decades and the present proceedings would only result in further delay.

6. The learned counsel appearing for the 5th respondent submitted that there is no communication with the Advocate, but according to this respondent, though the petitioners were appearing on the date of hearing before the trial court purposely left. In support of his contention, he relied upon the B Diary extract, wherein it has been mentioned that the the petitioners were appearing in all the hearings without fail.

7. The learned counsel appearing for respondents 12 and 13 adopted the submissions made by the learned counsel for the first respondent. It is further submitted that the affidavit filed in support of the petition was sworn to by one Pavunthai, who has subsequently died and that no acceptable or sufficient reason has been stated for setting aside the ex- parte decree. It is, therefore, submitted that the orders passed by the Courts below do not warrant interference.

8. The learned counsel appearing for the other respondents also adopted the submissions made on behalf of the first respondent and contended that the petitioners had been represented through different counsel on several occasions and that the reason assigned by them is not acceptable.

9. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respective respondents and perused the materials available on record.

10. The point for consideration is whether the order passed by the Courts below dismissing the petition to set aside the ex-parte decree warrants interference by this Court.

11. It is not in dispute that the ex-parte decree was passed on 25/09/2006. It is also not in dispute that the petitioner approached the Court below by filing the petition to set aside the ex-parte decree on 19/10/2006. Thus, immediately after the ex-parte decree was passed, the petitioner had approached the Court seeking to set aside the same.

Therefore, there was no delay in filing the petition to set aside the ex- parte decree.

12. The explanation offered by the petitioner is that there was a communication gap between him and his counsel and that the counsel representing him was an aged person and was unable to effectively communicate with him. Though the petitioner had been represented through counsel, the fact remains that the petitioner approached the Court within a short period after the ex-parte decree was passed.

13. It is well settled that the Court, while considering an application to set aside an ex-parte decree, is required to adopt a justice-oriented approach, particularly when the party seeks an opportunity to contest the suit on merits and when no prejudice would be caused to the opposite party which cannot be compensated in terms of costs.

14. In the present case, though the suit is pending for a considerable length of time, the petitioner had approached the Court immediately after the ex-parte decree was passed. The mere fact that considerable time has elapsed thereafter cannot, by itself, deprive the petitioner of an opportunity to contest the suit on merits, particularly when the petitioner has shown sufficient cause for his non-participation in the proceedings.

15. Therefore, this Court is of the considered view that in order to afford a fair opportunity to the petitioner to put forth his defence and to decide the dispute on merits, the ex-parte decree is liable to be set aside. At the same time, the petitioner shall cooperate for the expeditious disposal of the suit without seeking unnecessary adjournments.

16. Accordingly, the order passed by the learned Trial Court and the order passed by the learned First Appellate Court are set aside. The petition filed by the petitioner to set aside the ex-parte decree, dated 25/09/2006 is allowed, subject to the condition that the petitioner shall file his written statement within a period of two weeks from the date of receipt of a copy of this order and shall cooperate with the learned Trial Court for the expeditious disposal of the suit.

17. Since the suit is pending for a considerable period, the learned Trial Court shall proceed with the suit without granting unnecessary adjournments to either party and dispose of the same, as expeditiously as possible, in accordance with law.

18. Accordingly, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.

21.09.2026 er To

1. The Sub Court, Theni.

2. The District Munsif Court, Theni.

3. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA, J. er

CRP(MD)No.2480 of 2022 21/09/2026