K. Govindasamy v. Dhanam Ammal — 1994 DIGILAW 583 (MAD)

Judgment :- 1. The revision petitioner is the first defendant in O.S. 315 of 1980 in the Court of District Munsif of Mayiladuthurai. Respondents 1 to 4 instituted O.S. 315 of 1980 against the revision petitioner and two others for recovery of possession of certain property. That suit was dismissed for default on 25.6.1981 in the trial court. Thereupon, respondents 1 to 4 came forward with I.A. 1031 of 1981 under O. 9, R. 9, and S. 151 C.P.C. to restore the suit to file. That petition was allowed and suit was posted for trial on 6.4.1983. On that day also, respondents 1 to 4 did not appear and again the suit was dismissed for default. So the plaintiffs came forward with I.A. 2326 of 1987 on 25.6.1987 to condone the delay of 1540 days and restore the suit to file. The first plaintiff has alleged in her affidavit that subsequent to the restoration of the suit as per order in I.A. 1031 of 1981, she suffered from nervous weakness; her mental condition was affected and she was not in a position to know what was happening around her; her bodily condition also became worse. So she could not be present in court on 6.4.1983 when the suit was dismissed for default. Only now, she came to understand about the dismissal of the suit for default. On 21.3.1991 after hearing both counsel, learned District Munsif allowed the petition. Thereafter, plaintiffs filed I.A. 557 of 1991. O. 9, R. 9, C.P.C. to restore the suit to file. The first plaintiff in her affidavit in support of the application has alleged practically the same reasons, mentioned in the affidavit of the earlier petition. The first defendant resisted that application denying the abovesaid averments. In its order dated 10.1.1991, the trial court allowed that application on condition that the plaintiffs pay the defendants Rs. 300/- as costs on or before 20.1.1994 and this revision by the first defendant is directed against the said order. 2. Learned counsel for the revision petitioner submits that the plaintiffs were never diligent in getting along with the suit. The trial court has passed a cryptic order and allowed the application eventhough it was not satisfied with the reasons mentioned in the affidavit for the absence of the plaintiffs on the hearing date. 2. Learned counsel for the revision petitioner submits that the plaintiffs were never diligent in getting along with the suit. The trial court has passed a cryptic order and allowed the application eventhough it was not satisfied with the reasons mentioned in the affidavit for the absence of the plaintiffs on the hearing date. The view of the trial court that in the interest of justice, suit has to be restored to file is untenable. According to the revision petitioner, there is absolutely no justification for the non-appearance of the plaintiffs on the hearing date on 6.4.1983, thereafter they had slept over the matter for more than five years and only in order to harass the defendants they had resorted to this action. Whereas learned counsel for the plaintiffs pleaded that only on account of ailment, the plaintiffs were unable to be present in court at the relevant time to proceed with the case. As per the affidavit filed by the first plaintiff Dhanammal she alone was conducting the case for herself and on behalf of her children who are the other plaintiffs. However, the first plaintiff Dhanammal who has worn the affidavit has not gone into the witness box to substantiate the allegation. Instead, the second plaintiff Rajendran alone has been examined on the side of the plaintiffs. Besides, no medical certificate has been filed to prove the ailment nor the Doctor who has treated her has been examined. Evidently, the claim of the plaintiffs that because the first plaintiff was suffering from nervous disorder she was unable to be present in court on the hearing date stands not proved. Even the trial court has expressed that it is unable to know from the materials produced that really the first plaintiff was unwell on the relevant date. As has been rightly pointed out by the learned counsel for the revision petitioner, the first plaintiff is the mother of the second plaintiff Rajendran. No doubt, plaintiffs 3 and 4 are daughters of the first plaintiff and the fourth plaintiff is a minor. Even it we have to take that the third plaintiff was also a minor at the relevant time, there is no reason for the second plaintiff Rajendran for not appearing in court and getting along with the case in case it is true that the first plaintiff was ill at that time. Even it we have to take that the third plaintiff was also a minor at the relevant time, there is no reason for the second plaintiff Rajendran for not appearing in court and getting along with the case in case it is true that the first plaintiff was ill at that time. No doubt in her affidavit in I.A. 557 of 1991, the first plaintiff states that it is she who is conducting the case on her behalf and on behalf of the other plaintiffs. And there is no specific denial of this averment in the counter filed by the first defendant in I.A. 557 of 1991. However, considering the fact that for about five years, the plaintiffs have not taken any action to restore the suit which was dismissed for default, it is hard to believe that the mother alone was looking after the family affairs and on account of her illness everything stood still in the family affairs. 3. Be it noted that initially, the suit was dismissed for default on 25.6.1981. In her application in I.A. 1031 of 1981 the first plaintiff has alleged only fever as the reason for her non-appearance. It is seen that in the present petition also bodily as well as mental condition are stated to be the causes for her inability to be present in Court on 6.4.1983. If the present claim of the plaintiffs is considered in this backdrop, it would be evident that there is no ring of truth therein. 4. Learned counsel for the respondents herein submitted that since delay has been condoned in the application filed under S. 5 of the Limitation Act, it in enough if he satisfies the Court in this case that there was sufficient cause for his non-appearance when the suit was called on 6.4.1983 for hearing and the reason adduced in his affidavit satisfies this test. To controvert this argument, learned counsel for the revision petitioner cited the decision in Raju v. Mohamadabi 1993 (2) L.W. 171 ). There was the contention was that since the order condoning the delay was not separately challenged, it was not open to the petitioner to assail the same in the final order. But it did not find favour with K.A. Swami, Chief Justice. There was the contention was that since the order condoning the delay was not separately challenged, it was not open to the petitioner to assail the same in the final order. But it did not find favour with K.A. Swami, Chief Justice. So, the allowing of I.A. No. 2326 of 1987 is no bar to raise the plea of delay in I.A. No. 557 of 1991. And we have already seen there is absolutely no justification for coming forward with this application nearly five years after the suit was dismissed for default on 6.4.1983. 5. Learned counsel for the revision petitioner also relied upon three more judgments. In Srinivasan v. Krishnammal (100 L.W. 667) Chandurkar, Chief Justice has deprecated the very liberal attitude and casual manner in which ex parte decrees are being set aside in the trial Courts. In Subbiah v. Muthukrishnan (100 L.W. 536) also learned Chief Justice pointed out that even applications for setting aside ex parte orders have to be considered seriously and the impression which has recently gained ground that ex parte orders are set aside in a casual manner for the more asking has to be dispelled as early as possible. In Arukkani Ammal v. Guruswamy (100 L.W. 707), he has held that a vague allegation that the defendant was ill is hardly any justification for setting aside the ex parte decree and such an allegation cannot amount to proof of sufficient cause which is a mandatory requirement before an ex parte decree is set aside. 6. Learned counsel for the respondents submitted that the ratio laid down in those decisions cannot apply to the present application since this is one under O. 9, R. 9, C.P.C. while the applications there were under O. 9, R. 13, C.P.C However, a perusal of both the provisions indicate that sufficient cause for non-appearance is the criterion to be taken into account in allowing the application. So, the principle stated above is applicable to restore the suit to file under O. 9 R. 9, C.P.C. also. 7. The trial Court even though found that no sufficient cause was established, in the interest of justice allowed the petition. But it is significant to note that the suit herein is of the year 1980. It was dismissed for default once on 25.6.1981 and next on 6.4.1983. 7. The trial Court even though found that no sufficient cause was established, in the interest of justice allowed the petition. But it is significant to note that the suit herein is of the year 1980. It was dismissed for default once on 25.6.1981 and next on 6.4.1983. Only after 1540 days, the plaintiffs came forward with the application to restore the same. In these circumstances. I do not think that the plaintiffs have to be given one more opportunity to have a decision on merits even though the suit is one on title. The harassment caused to the other side also must be borne in mind in dealing with such a situation. So, there is no justification for the trial Court in allowing the application on the ground that it serves the interest of justice. 8. In the result, the civil revision petition is allowed and the order passed in I.A. No. 557 of 1991 is set aside and that application is dismissed. Parties are to bear their costs throughout.