TRISHALA Vs. M.V. SUNDAR RAJ
SUPREME COURT OF INDIA
M.V. Sundar Raj
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(1.)HEARD the learned counsel for the petitioner. The petitioner herein is the respondent in the regular first appeal before the High Court. In this order
we will refer to the parties as they are arrayed in the High Court.
(2.)BY the impugned order1 the High Court has condoned 861 days' delay in filing the regular first appeal and directed the appeal to be listed for
hearing on the question of admission. Feeling aggrieved by such order, the
respondent in the High Court has filed this petition seeking special leave to
The first appeal in the High Court is by the defendants against an ex parte decree of the trial court. It appears that the defendants were proceeded
ex parte from the very beginning. The suit property is an immovable
property. The ex parte decree directs declaration of title, delivery of
possession and ascertainment of mesne profits. According to the appellants
the summons in the suit were not served on them and they were not aware of
the suit or the ex parte decree passed therein. On becoming aware of the ex
parte decree they obtained certified copies of the judgment and decree and
filed the appeal. It is further stated that there are several suits relating to this
property and in each of the suits the appellant-defendants are contesting and
there is no reason why the defendants, if served, would not have appeared
and contested the suit.
(3.)BEFORE the High Court the respondent (i.e. the petitioner in this Court) was noticed on the application seeking condonation of delay in filing the
appeal. She appeared and filed reply. The application seeking condonation of
delay in filing the appeal sets out the case in support of prayer for
condonation of delay in filing the appeal and is supported by an affidavit.
When the application was taken up for hearing the respondent and her
counsel were absent. The matter was passed over and heard on the second
call whence also none was present for the respondent. The High Court heard
the learned counsel for the appellants. It felt satisfied with the truthfulness of
the averments made in the application, supported by affidavit. In the reply
filed on behalf of the respondent it is stated vide para 5 "the appellants are
put to strict proof of the same" i.e. of all the averments made in support of
the application. However, the respondent did not make a prayer for enquiry
being held nor did she make a prayer for cross-examination on the affidavit
filed by the appellant.
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