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2000 DIGILAW 1110 (MAD)

Kuppammal v. S. V. Kandasami

2000-11-13

K.GNANAPRAKASAM, R.JAYASIMHA BABU

body2000
Judgment : (1) THE first defendant in O. S. No. 338 of 1982 on the file of the City Civil court, Madras has suffered an order of dismissal on 08. 02. 1996, of her application in i. A. No. 2039 of 1986 to set aside the ex parte decree dated 26. 09. 1984. The appellant preferred an appeal in C. M. A. No. 553 of 1986 before this Court and that was also dismissed on 15. 07. 1994. Aggrieved by the same, the appellant preferred this appeal under Clause 15 of the Letters Patent. During the pendency of the appeal, the appellant died and the legal representatives were brought on record. (2) THE respondent/plaintiff filed the suit for delivery of vacant possession of the suit property and for profits. The suit property was brought to sale under Section 69 of the Transfer of Property Act and the plaintiff purchased the same in a public auction held on 31. 12. 1979 for a sum of Rs. 52. 700/ -. The plaintiff paid Rs. 13,200/- on 31. 12. 1979 itself and the balance of the sale consideration was paid on 11. 01. 1980. The sale deed was obtained on 13. 05. 1981. The first defendant/appellant questioned the sale and also filed a pauper O. S. 491 of 1981 against the respondent/plaintiff praying for a declaration that the auction sale was not valid and for injunction. The suit was posted for trial on 27-09-1984 and the appellant did not appear to conduct the suit and hence, she was set ex parte and a ex parte decree was passed on 27-09-1984. (3) THE appellant filed an application to set aside the ex parte decree and in the affidavit filed in support of the petition had stated that she was under treatment for vertigo from 25-09-1984 to 27-09-1984 and the doctors advised her to take rest for another three days and only in the said circumstances, she was not able to be present on 26-09-1984. To support her contention, she had also filed a medical certificate. But, however, the trial Court did not accept her case and dismissed the petition on the ground that the petitioner was not examined and the doctor, who had issued the medical certificate was not examined and that the petitioner had already been once set ex parte and there was "no sufficient cause" to allow the petition. But, however, the trial Court did not accept her case and dismissed the petition on the ground that the petitioner was not examined and the doctor, who had issued the medical certificate was not examined and that the petitioner had already been once set ex parte and there was "no sufficient cause" to allow the petition. The learned single Judge of this Court accepted the findings of the trial court and dismissed the appellants appeal in c. M. A. No. 553 of 1986. As against the same, this appeal has been filed. (4) LEARNED advocate for the appellant, before us, has submitted that the appellant could not be present before the trial Court on 26-09-1984 only due to her ill-health and she was aged about 65 years at that time and a medical certificate was also produced before the trial Court to prove her illness, but the same was not accepted by the trial Court, but instead rejected, which resulted in deprivation of the appellants right to defend the suit on merits,, which is prejudicial to her interest also. It is further submitted that the appellant had also taken separate proceedings in O. S. No. 2491 of 1990 to set aside the Court auction sale. As the suit filed by the plaintiff is one for delivery of possession, in pursuance of the purchase of the suit property in Court auction sale, under Section 69 of the Transfer of Property Act, the appellants to prove their bona fides, has offered to deposit the sale amount into court paid by the respondent to the auctioneer. (5) LEARNED advocate for the respondent would however resist the appeal on the ground that the appellant was not at all diligent in defending the suit. It is also pointed out that the defendant/appellant once remained ex parte on 24-12-1982 and the same was set aside in i. A. No. 4566 of 1983 on costs. The suit came up for hearing on several occasions from 14. 06. 1984 to 26.- 9. 1984 and on all those occasions, the appellant was absent and hence, the court rightly set her ex parte on 26-09-1984 and a decree was passed and the same was also confirmed by the first Appellate Court. It is further urged that the respondent took the property in the auction held on 31. 12. 06. 1984 to 26.- 9. 1984 and on all those occasions, the appellant was absent and hence, the court rightly set her ex parte on 26-09-1984 and a decree was passed and the same was also confirmed by the first Appellate Court. It is further urged that the respondent took the property in the auction held on 31. 12. 1979 and had deposited the entire sale consideration and also obtained the sale deed on 18-05-1981 and the appellant prevented the respondent from taking delivery, which necessitated the respondent to file the suit. The matter is hanging in the balance for the past more than 20 years. The appellant is also in possession of a portion of the suit property and therefore, they are not at all interested in defending the case and allowed the suit to be decreed ex parte and filed an application to set aside the decree and in the said circumstances, the appeal has got to be dismissed. He had also argued in support of and in justification of the decree passed. (6) TRUE it is that the suit was posted on 26-09-1984 for trial and for the appellants absence, it was decreed ex parte and the application to set aside the same was filed on 29. 10. 1984 and the appellant also filed the medical certificate to show that she was ill on the particular day, but the petition was dismissed. It is further seen that the appellant had already taken necessary steps to set aside the sale and in the said circumstances, the right of the appellant cannot be nipped in the bud itself and opportunity must be given to defend the case on merits. (7) ON the contrary, learned advocate for the respondent has pointed out that the appellant was never diligent in conducting the case and her past conduct should also be taken into account in deciding the issue. There is absolutely no sufficient cause to set aside the decree passed ex. parte. (8) WE have heard both the counsel for the parties and given our anxious consideration to the matter and now, the question is as to whether the appellant has made out sufficient cause to set aside the decree, passed ex parte on 26-09-1984. (9) ORDER 9, Rule 13, of C. P. C. states. parte. (8) WE have heard both the counsel for the parties and given our anxious consideration to the matter and now, the question is as to whether the appellant has made out sufficient cause to set aside the decree, passed ex parte on 26-09-1984. (9) ORDER 9, Rule 13, of C. P. C. states. "setting aside decree ex parte against defendant:-In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or other wise as it thinks fit, and shall appoint a day for proceeding with the suit. "it postulates two conditions or circumstances, under which, the ex parte decree could be set aside. (1) If he (defendant) satisfies the court that the summon was not duly served. (2) That he (defendant) was prevented by any sufficient cause from appearing in the court when the suit was called for hearing. The case on hand falls under second category. (10) THE words "sufficient cause" are nowhere defined in the Civil Procedure Code, which suggests, it has got to be construed with regard to the facts and circumstances of each case. In the Law Laxicon, by S. Ramanatha aiyar, 1997 Edition, the various possible explanations are given as follows: "sufficient cause" implies the presence of legal and adequate reason. The word "sufficient" means "adequate", "enough", "as much as may be necessary to answer the purpose intended". It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from reasonable standard of practical and cautious men. (11) THE Apex Court, in the case of New india Insurance Co. Ltd. v. Shanti Misra has stated what constitutes sufficient cause cannot be laid down by hard and fast rules. The expression "sufficient cause" should receive a liberal construction. (11) THE Apex Court, in the case of New india Insurance Co. Ltd. v. Shanti Misra has stated what constitutes sufficient cause cannot be laid down by hard and fast rules. The expression "sufficient cause" should receive a liberal construction. Even in condoning the delay under Section 5 of the Limitation Act, the Apex Court in the case of O. S. Kathpalia v. Lakhnir Singh has observed. "if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. " in Collector, Land Acquisition v. Ketiji, the Apex Court observed "the expression" sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this court has been taking a justifiably liberal approach in matters instituted in this court. . . . . when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. " (12) THE Apex Court in the case of G. S. Srivatasaoa v. R. K. Raizada and others* has held as under: -"under Order 9, Rule 13, C. P. C. , an ex parts decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words he was prevented by any sufficient cause from appearing must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9, Rule 13, has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. Sufficient cause for the purpose of Order 9, Rule 13, has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The sufficient cause for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby con? doned earlier". (13) IN the instant case also, we feel that the cause shown by the appellant was sufficient for her non-appearance on 26. 09/1984 and she cannot be penalised for her previous negligence, if any, as it has already been overlooked and condoned by the court and she must be given opportunity to defend the case on merits to meet the ends of justice. But, however, taking into consideration that the /is pending from the year 1982 and the respondent has been dragged from one Court to the other, he should be compensated by way of costs, which we fix at Rs. 5000/ -. (14) IN the result, the, appeal is allowed and the decree and judgment of the learned single Judge of this Court and the trial Court are set aside. The appellants are directed to pay Rs. 5000/-as costs to the other side. Consequently, C. M. P. Nos. 976 of 1995, 14427 of 1999 are dismissed and C. M. P. No. 13507 of 2000 is ordered. (15) THE appellant is further directed to deposit the entire sale consideration of Rs. 52,7007-paid by the respondent, together with interest at the rate of 12% per annum from 11. 01. 1980 upto the date of this order within eight weeks. We make it clear that the deposit of sale consideration does not confer any right upon the appellant and the same is subject to the result of the suit. (16) THE parties are directed to appear before the trial Court on 06. 12. 2000 (Wednesday) without waiting for any notice from the trial Court and should co-operate in conduct-ing the case. (16) THE parties are directed to appear before the trial Court on 06. 12. 2000 (Wednesday) without waiting for any notice from the trial Court and should co-operate in conduct-ing the case. Taking note of the fact that the matter is pending from the year 1982, the trial court is hereby directed to dispose of the suit as expeditiously as possible after giving due opportunity to both the parties, in any event, within six months from the date of receipt of the copy of this order. (17) THE learned advocate for the appellant has brought to our notice that the other suit filed by the appellant in O. S. No. 2491 of 1990 is also pending and the same may also be ordered to be tried along with the suit. If that suit is ripe for trial, the appellant can make necessary application before the Court concerned for the joint trial or simultaneous trial of the suit and the trial Court may consider the same and pass appropriate orders and proceed with the matter in accordance with law. Appeal allowed accordingly.