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2022 SCC OnLine Mad 7841

In the High Court of Madras†

(BEFORE B. PUGALENDHI, J.)

J. Vasanthi and Another … Petitioners;

Versus
N. Ramanikanthammal and Others … Respondents.
C.R.P(MD) No. 2060 of 2022 and CMP(MD) No. 9433 of 2022
Decided on October 18, 2022
Advocates who appeared in this case:
For Petitioners : Mr. G. Sridharan
For Respondents : Mr. H. Arumugam
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
20.09.2022 made in I.A. No. 31 of 2022 in O.S. No. 20 of 2014 on the
file of the Additional District and Sessions Judge, Palani, Dindigul
District and allow this Civil Revision Petition.
The Order of the Court was delivered by
B. PUGALENDHI, J.:— This Civil Revision Petition is filed as against
the order passed by the learned Additional District and Sessions Judge,
Palani, Dindigul in I.A. No. 31 of 2022 in O.S. No. 20 of 2014, dated
20.09.2022.
2. The petitioners are the defendants 3 & 4 in O.S. No. 20 of 2014.
The above suit was filed by the respondents/plaintiffs for the relief of
declaration to declare the Will and the sale deeds of the defendants 2 to
6 in favour of the third parties as null and void and also for permanent
injunction, restraining the defendants 2 to 6 from alienating the suit
schedule properties. The petitioners herein were set exparte on
08.04.2019 that they have not filed their written statements. The
petitioners filed an interlocutory application, under Order 9 Rule 7 of
Civil Procedure Code, to set aside the exparte order dated 08.04.2019
and the same was dismissed by the trial Court that no sufficient
reasons were assigned by these defendants for non-filing of their
written statements in time and for their absence on 08.04.2019.
Aggrieved over the same, the present Civil Revision Petition is filed.
3. The learned counsel appearing for the petitioners submits that the
third defendant is aged about 64 years. She is suffering with certain
ailments and due to her old age, she could not travel to meet her
counsel and to file the written statement in time. The counsel has also
requested for certain documents, which she could not produce it. The
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fourth defendant is working in Income Tax Department and he could

not get leave to follow up the case and therefore he also failed to
contact the counsel and file the written statement in time. Now
according to the learned counsel, the written statements are filed by
both the defendants 3 & 4 and if they have not been provided an
opportunity, they would be greatly affected. He further submits that no
time limit is prescribed for the application under Order 9 rule 7 of Civil
Procedure Code.
4. The learned counsel appearing for the respondents/plaintiffs
submits that the suit was originally filed in the year 2014 and the
defendants are attempting to drag on the proceedings in one way or
other. The defendants 2 to 6 have created a forged Will on 05.10.1986
and also created subsequent documents through the forged Will. In
earlier proceedings, this Court has directed the defendants to produce
the alleged original will dated 05.10.1986 before the trial Court.
However, the defendants have not complied with the same. The
defendants 2 & 6 have also filed the written statements after a lapse of
5 years and thereafter on the application filed by the plaintiffs in I.A.
No. 155 of 2019, the written statements filed by the defendants 2 & 6
were rejected. The petitioners/the defendants 3 & 4 have come forward
with similar nature of petition after a lapse of eight years and thereafter
they have entered appearance in the suit through their counsel on
27.03.2014 itself and considering the manner in which the defendants
are protracting the suit, the trial Court has rejected the application filed
by them. Therefore, there is no reason to interfere with the order of the
trial Court.
5. This Court considered the rival submissions made and also
perused the materials placed on record.
6. The petitioners are the defendants 3 & 4. They are wife and son of
the second defendant. The suit was filed by the plaintiffs for the relief
of declaration of sale deeds executed by the defendants 2 & 3 in favour
of the third party as null and void. The suit was filed in the year 2014.
The defendants have initially filed the application that the court fees
were not properly filed and the same was dismissed, as against which,
the defendants have contested the application upto the Honourable
Apex Court and the Honourable Apex Court allowed the application filed
by these petitioners with a direction to the respondents to pay the
Court fees as per section 40 of Tamil Nadu Court fees and suit valuation
Act. Thereafter, the suit was posted for filing of the written statement.
The defendants 3 & 4 wife and son of the second defendant failed to file
the written statements and therefore they were set exparte. The
defendants 2 & 6 have also filed the written statements after a lapse of
five years and therefore the trial Court has rejected their written
statements by order dated 17.09.2020. These petitioners have come
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forward with the present application, under Order 9 Rule 7 of Civil

Procedure Code that the third defendant could not contact his counsel
and furnish the details as claimed by him due to her old age and ill-
health and the fourth defendant/second petitioner is working in the
Income Tax Department and he could not get leave to approach his
counsel in time. The trial Court considering the manner, in which, the
suit was protracted by the petitioners herein has dismissed the
application filed by them. It appears that the defendants are not co-
operating with the trial. However, considering the nature of the relief
and that there is no period of limitation prescribed under the Act for an
application under Order 9 Rule 7 of Civil Procedure Code and also in
order to provide an opportunity to the petitioners/defendants 3 & 4,
this Court is inclined to allow this Civil Revision Petition by imposing
certain costs.
7. Accordingly, this Civil Revision Petition is allowed with a direction
to the petitioners herein to pay a cost of Rs. 10,000/- to each
respondents within a period of three weeks from the date of receipt of a
copy of this order. The impugned order passed by the learned
Additional District and Sessions Judge, Palani, in I.A. No. 31 of 2022 in
O.S. No. 20 of 2014, dated 20.09.2022 is set aside. It is open to the
trial Court either to accept or reject the written statements, which were
filed belatedly. The trial Court shall endeavour to conclude the trial as
expeditiously as possible, preferably within a period of six months from
the date of receipt of a copy of this order.
8. With these directions, this Civil Revision Petition is allowed. No
costs. Consequently, connected Miscellaneous Petition is closed.
———
† Madurai Bench

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