Madras High Court · 2025

C.R.P.No.345 of 2025.R3-D.Mohanambal – party in personR4-D.Senthil Kumar – party in personORDERThis civil revision petition has been filed challenging the order dated 23.04.2024 passed by the learned District Judge, The Nilgiris District at Udhagamandalam, dismissing the application in I.A.No.02 of 2024 filed by the defendants 1, 3 and 4 in the suit, under Order XLI and Rules (3) and (4) of CPC r/w Section 5 of the Limitation Act, seeking to condone the delay of 2886 days in filing the appeal against the judgement and preliminary decree dated 18.08.2015 made in O.S.No.107 of 2014 on the file of the learned Subordinate Judge at Udhagamandalam.2. The respondents 5 and 6 herein are the plaintiffs 2 & 3; the respondents 7 to 9 are the legal heirs of the deceased 1st plaintiff - Papathy; the revision petitioners herein are defendants 1, 3 and 4; the respondents 1 to 4 herein are the legal heirs of the deceased 2nd defendant - K.Dharmaraj in the suit.3. The array of parties in the delay condonation petition in I.A.No.02 of 2024 in A.S. CFR No.4028 of 2023 on the file of the learned District Judge, Udhagamandalamm, The Nilgiris District, is furnished hereunder for better and easy understanding:-2 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.I.A.No.02 of 2024in A.S. (SR) No.4028 of 20231.K.Arjunraj (1st Defendant)2.K.Devaraj (3rd Defendant)3.K.Haridass (4th Defendant) ….. Petitioners/Appellants-Versus-1.K.Dharmaraj (Since deceased) (2nd Defendant)2.Ruckmani(LR of the deceased 2nd Defendant)3.D.Vijayakumar(LR of the deceased 2nd Defendant)4.D.Mohanambal (LR of the deceased 2nd Defendant)5.D.Senthil Kumar (LR of the deceased 2nd Defendnat)6.Papathy (Since deceased) (1st Plaintiff)7.Saraswathi (2nd plaintiff)8.Suseela (3rd plaintiff)9.Nithyanandam (LR of the deceased 1st plaintiff)10.Vani(LR of the deceased 1st plaintiff)11.Tamil Selvi(LR of the deceased 1st plaintiff) ….. Respondents/Respondents4. For the sake of convenience, the parties in this revision petition will hereinafter be referred to as per their array in the suit. 5.1 Tmt.Papathy (deceased 1st plaintiff) along with her sisters - Saraswathi and Suseela, the plaintiffs 2 and 3, filed a suit in O.S.No.107 of 2014 for (i) partition and separate possession of the suit properties into 7 equal shares and allotment of 3/7th share in favour of them, by metes and bounds, taking into consideration the nature of the properties and its good and bad soil, nature of construction, road approach and other related factors and (ii) for appointment of an Advocate Commissioner to effect such division and allotment of properties as per the preliminary decree. The plaintiffs are the 3 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.sisters of the defendants. 5.2 The immovable properties which are subject matter in the partition suit are as follows:SCHEDULE OF PROPERTIESSCHEDULE - IRegistration District:The NilgirisRegistration Sub-District:KotagiriTown or Village:Kagguchi Revenue VillageSl.No.Old Survey NumberNew Survey NumberExtent01Item No.1 – 72/2246/2 & 359/92.03 Acres of land in 2 Plots02Item No.2 – 61353/1, 353/3, 352/60.32 Acres together with building thereon03Item No.3 – 571247/1, 247/2, 246/11, 246/8, 358/1, 358/2S.No.356/2 and S.No.357/20.64 Acres of land04Item No.4 – 159/1246/2 & 357/90.31 Acres of land(Schedule No: 1 – Item Nos.1 to 4 comprising totally 3.30 Acres of land together with buildings thereon as per the partition deed dated 09.12.1994 as per Schedule No.1)SCHEDULE – IIRegistration : The NilgirisRegistration Sub-District: CoonoorTown or Village: Hulical Revenue VillageSurvey Nos.: 54/2 and 54/2Extent: 0.03 Acres of land together with the buildings thereon bearing D.Nos.6/80, 6/80A and 6/81 with Hulical PanchayatSCHEDULE III4 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.Registration District: GopichettipalayamRegistration Sub District: Thokka Naicken PalayamTown or Village: VaniputturSurvey Number: 302/5Extent: 246 ½ square feet of land together with a building 5.3 It appears that though the defendants entered appearance in the suit through their counsel, they did not sincerely pursue the suit and they were called absent and set ex parte. The trial court had, therefore, proceeded to decide the suit ex parte and passed an ex parte preliminary decree in the suit with costs as prayed for, by its judgement and decree dated 18.08.2015.5.4. However, it appears that pending suit proceedings, in a private mediation, it was mutually agreed between the parties in the suit to allot 30 cents to the plaintiff 1 to 3 together. However, that mediation agreement, said to have been reached among the parties before the mediator, was not filed before the court. The fact, however, remained that after the agreement entered into among the parties in the private mediation, the defendants did not choose to contest the suit seriously. The defendants remained absent and as such, they were set ex parte, and therefore, on 18.08.2015, the trial court had passed an ex parte preliminary decree for partition and division of the suit properties as prayed for with costs.5.5 Thereupon, it appears that the plaintiffs have taken out an application on 14.11.2018 for passing a final decree by appointing an Advocate 5 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.Commissioner for the division of the suit properties as per the preliminary decree and for the allotment of a 3/7th share in the suit properties in favour of the plaintiffs and putting them in separate possession of the properties allotted to them. That application was taken on file on 19.11.2018 as I.A.No.310 of 2018 by the learned Subordinate Judge, Udhagamandalam. In that application also, the defendants remained absent, and as such, they were set ex parte, and a final decree came to be passed on 03.10.2023. Only thereafter, upon realising the fact that a final decree was passed against them, the defendants 1 to 4 have taken out an application under Section 5 of the Limitation Act seeking to condone the delay of 2886 days in filing an appeal under Section 96 r/w Order XLI and Rule 1 of CPC against the ex parte judgement and decree dated 18.08.2015 made in O.S.No.107 of 2014 on the file of the learned Subordinate Judge at Udhagamandalam. That delay condonation application was numbered as I.A.No.02 of 2024 in A.S.CFR No.4028 of 2023. After hearing both the parties, the learned District Judge, by order dated 23.04.2024, refused to condone the delay in preferring the appeal and as a result dismissed the application by holding that there was no reason much less sufficient reason shown to condone the inordinate delay of 2886 days in preferring the appeal against the ex parte preliminary decree and judgement dated 18.08.2015. It is this order which is now under challenge in the present revision.6 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.6. When the delay condonation application came up for hearing on 22.01.2025, Mr.Nithiyanandan, the 7th respondent, Mrs. Vani, the 8th respondent, and Mrs. Tamil Selvi, the 9th respondent, who are the legal heirs of the deceased 1st plaintiff, Papathy, were present before this court, and they had stated that they were ready and willing for a settlement. As regards the other family members are concerned; the respondents 7 to 9 assured this court that they would see the other members of their family present before this court on the next date of hearing. The respondents 8 & 9 had, however, submitted that they would not be appearing before this court on that date as they had some medical issues. The respondents 8 & 9 had, however, submitted that his brother, the 7th respondent, would take care of their right over the suit properties.7.1 Today, when the delay condonation application came up for hearing at first, the revision petitioners 1 to 3 and the respondents 1 to 7 in the revision petition were present. They submitted before this court that they have arrived at a settlement, and they are mutually agreeable for partition and division of suit properties. The revision petitioners and the respondents have filed their compromise memoranda dated 29.01.2025 separately. 7.2 On considering the settlement arrived at among the parties, this court, by way of a separate order, condoned the delay of 50 days in preferring the revision against the order refusing to condone the delay of 2886 days in 7 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.preferring the appeal suit. Thereafter, the revision was numbered as C.R.P.No.345 of 2024 and this court has taken up the same for disposal.8.1 A scanned reproduction of the compromise memo filed by the civil revision petitioners/defendants 1, 3 and 4 is as follows:8 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.9 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.10 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.11 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.8.2 A scanned reproduction of the compromise memo filed by the respondents 5 and 6/plaintiffs 2 and 3, respondents 7, 8, and 9/legal heirs of the deceased 1st plaintiff, which was signed by the respondents/5 and 6 and 7th respondent for himself and on behalf of his sisters, who are respondents 8 & 9 in the revision, is as follows:12 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.13 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.14 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.15 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.16 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.17 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.9. The revision petitioners/defendants 1, 3, and 4; the respondents 1 to 4/legal heirs of the deceased 2nd defendant; and respondents 5 and 6/plaintiffs 2 and 3; and the 7th respondent/a legal heir of the deceased 1st plaintiff are present. The revision petitioners are represented by Mr. E.V. Chandru, the respondents 5 and 6 are represented by Mr. Kingston Jerold, and the respondents 7, 8 & 9 are represented by Mr. R. Sugumaran. 10. As already stated supra, 7th respondent-Nithiyanandan represented the cause of his sisters who are respondents 8 & 9. 11. It is pertinent to note that the compromise as reached between the parties, taking note of the fact that there had already been a registered WILL executed by the father of the parties originally arrayed in the suit.12. The terms of compromise were read over to the revision petitioners 1 to 3 and the respondents 1 to 7, and the same were admitted by them to be true and correct. The parties, who appeared in person and the learned counsel who represented the parties have also signed the memoranda of compromise. This court is satisfied that the compromise is true and lawful. In view thereof, the compromise memoranda are recorded. 13. The learned counsel appearing for the parties have shown the array of parties in the compromise memoranda as per their array in the condone delay application filed before the appellate court for ease and to prevent confusion. 18 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.Nonetheless, the parties in this revision will, as already stated supra, be referred to as per their array in the suit for convenience and to avoid confusion. 14. The learned counsel appearing for the respective parties would submit that though the order under revision challenges the order of the learned District Judge refusing to condone the delay in filing the appeal against the ex parte preliminary decree and judgment, in order to meet the ends of justice, it would suffice if the ex parte final decree dated 03.10.2023 passed in I.A.No.310 of 2018 on the file of the learned Subordinate Judge at Udhagamandalam, is set aside and the final decree application is directed to be restored to file directly and heard afresh and disposed of in terms of the compromise entered into among the parties. 15. In the light of the compromise and settlement reached at among the parties amicably for partition and division and allotment of the suit properties, this court, in order to meet the ends of justice, in exercise of its power under Article 227 of the Constitution of India, is inclined to set aside the order under revision and to restore the application in I.A.No.310 of 2018 directly so as to sub serve the interest of justice and direct the learned Subordinate Judge to proceed with further in the final decree proceedings, instead of directing the District Judge to number the appeal against the preliminary decree and decide the same on merits and in accordance with law..19 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.16.1 As per the compromise entered into among the parties, (i) the plaintiffs 2 and 3 are allotted 13.67 cents each in R.S.No.358/1 and R.S.No.358/2 of Kagguchi Revenue Village, Udhagamandalam Taluk, The Nilgiris District; (ii) the legal heirs of the 1st plaintiff are allotted 13.67 cents together in R.S.No.358/1 and R.S.No.358/2 of Kagguchi Revenue Village, Udhagamandalam Taluk, The Nilgiris District; (iii) the defendants 1, 3 and 4 are entitled 30.08 cents each in R.S.No.358/1 and R.S.No.358/2 of Kagguchi Revenue Village, Udhagamandalam Taluk, The Nilgiris District; (iv) the legal heirs of the deceased 2nd defendant are allotted 30.08 cents together in R.S.No.358/1 and R.S.No.358/2 of Kagguchi Revenue Village, Udhagamandalam Taluk, The Nilgiris District; (v) the defendants 1, 3 and 4 each and the legal heirs of the deceased 2nd defendant together, are allotted equal share in R.S.No.356/2 and R.S.No.357/2 of Kagguchi Revenue Village, Udhagamandalam Taluk, The Nilgiris District;16.2 In view of the compromise entered into between the parties, (i) the respondents 1 to 4 herein/legal heirs of the deceased 2nd defendant, respondents 5 & 6 herein/plaintiffs 2 and 3, and the respondents 7 to 9 herein/the legal heirs of the deceased 1st plaintiff will relinquish their right in respect of 27 cents in S.No.356/2; (ii) the respondents 7 & 8 herein/plaintiffs 2 and 3 and the legal heirs of the deceased 1st plaintiff, who are respondents 7 to 9 will not claim any share in respect of 27 cents in S.No.356/2; (iii) the plaintiffs 2 and 3 and the legal heirs of the deceased 1st plaintiff and the respondents 1 to 4/legal heirs of the deceased 2nd defendant will not claim any share in the properties absolutely belonged to the revision petitioners/defendants 1, 3 and 4, other 20 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.than the one allotted to them in terms of the compromise entered into among themselves.17. Accordingly, the ex parte order and final decree dated 03.10.2023 made in the final decree application in I.A.No.310 of 2018 on the file of the learned Subordinate Judge, Udhagamandalam, are set aside and the earlier report filed by the Advocate Commissioner - Mr.L.Shanmugam is scrapped in the following terms:-(i) The learned Subordinate Judge, Udhagamandalam, The Nilgiris District, is directed to restore the final decree proceedings in I.A.No.310 of 2018 on file for passing final decree afresh in terms of the compromise entered into among the parties, which were recorded by this court, re-issue the Warrant of Commission to the very same Advocate – Mr.L.Shanmugam for the purpose of inspection and survey of the properties with the assistance of a qualified surveyor and for making suggestions as to the division and allotment of the suit properties by metes and bounds in terms of the compromise memorandum;(ii) the Advocate Commissioner is at liberty to engage the services of a qualified surveyor of his choice and claim the fees and expenses incurred towards the services of the surveyor;21 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.(iii) the fee payable to the Advocate Commissioner shall be fixed by the learned Subordinate Judge, Udhgamandalam considering the nature of work involved;(iv) The learned subordinate Judge shall give suitable directions to the learned Advocate Commissioner to file his report along with rough sketches within the time frame, suggesting the division and allotment of properties to the parties as per the compromise reached between the parties;(v) the learned Subordinate Judge, Udhagamandalam, shall expedite the final decree proceedings and pass final decree in terms of the compromise memoranda as indicated above within a period of four months from the date of receipt of a copy of this order.(vi) The fee payable to Advocate Commissioner and the expenses in respect of survey and other incidental expenses shall be borne by the parties equally and the same shall be paid by the parties directly to the Advocate Commissioner.(vii) The memo of compromise filed by the revision petitioners/defendants 1, 3 and 4 (Defendants 1, 3 and 4) and the respondents 1 to 4 (legal heirs of the deceased 2nd defendant jointly and the memo of compromise filed by the respondents 5 & 6/plaintiffs 2 and 3 and the 22 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.respondents 7 to 9/legal heirs of the deceased 1st plaintiff shall form part and parcel of this order;(viii) Additionally, the learned Subordinate Judge will issue an order mandating that a copy of the memoranda submitted by the parties to this court be affixed to his final decree. This civil revision petition is allowed accordingly with the above directions. The parties shall bear their respective costs incurred on this revision. Consequently, connected CMP is closed.Index: yes / no29-01-2025Neutral Citation: yes / nokmkTo1.The District Judge, Udhagamandalam, The Nilgiris District.2.The Subordinate Judge, Udhagamandalam, The Nilgiris District.23 of 24 https://www.mhc.tn.gov.in/judis C.R.P.No.345 of 2025.N.SATHISH KUMAR.J.,kmk C.R.P.No.345 of 202529..01..2025 24 of 24