Research › Search › Judgment

Madras High Court · body

2000 DIGILAW 807 (MAD)

N. S. Yamuna v. A. Venugopal

2000-08-11

PRABHA SRIDEVAN

body2000
Judgment : 1. The civil revision petition is against an order passed in I.A.No.4318 of 2000 in O.S.No.4002 of 1999 on the file of the III Assistant Judge, under Order 9, Rule 7, CPC. 2. The petitioner is the defendant against whom an exparte order was passed on 10.3.2000 in the suit filed by the respondent for recovery of a sum of Rs. 1,81,600 with interest. So the petitioner filed the above interlocutory application to set-aside the exparte order. This was allowed by the learned Judge on condition the petitioner deposits the suit claim within a month from the date of the order and paid the cost of Rs.200, failing which the petition would stand dismissed. Aggrieved by this the present civil revision petition has been filed. 3. Mr. N.L. Rajah, learned Counsel for the petitioner submitted that the said order imposed a very onerous condition which was not warranted in the circumstances, and it resulted out of a highly irregular exercise of jurisdiction. According to the learned Counsel for the petitioner on 13.2.2000 and 29.2.2000 which were the dates fixed for appearance of the parties both parties did not appear because there was a boycott of Courts by the advocates. The matter was therefore posted on 10.3.2000. But the date had been wrongly noted as 13.3.2000. Only on 13.3.2000 the A-diary was checked. It was known that the matter was already been held on 10.3.2000 and the petitioner was set exparte. So this interlocutory application was filed on 15.3.2000 to set aside the exparte order. The learned Counsel for the petitioner compared the provisions of Order 9, Rule 7 and Order 9, Rule 13 and submitted that vide under Order 9, Rule 7 if the defendant appears and assigns costs for previous non-appearance, the Court can set-aside the order upon payment of costs or otherwise. Whereas under Order 9, Rule 13 the Court has also the discretion to order payment. Therefore, according to the learned Counsel there was no justification for such an onerous condition to be imposed on the petitioner to have the exparte order set aside especially when there is nothing to show that the petitioner has been protracting the matter unnecessarily. He relied on Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 , Surendra Mohapatra v. Annapurna Mohapatra, AIR 1969 Ori. 251, Perumal Naicker v. Kondama Naicker, AIR 1939 Mad. He relied on Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 , Surendra Mohapatra v. Annapurna Mohapatra, AIR 1969 Ori. 251, Perumal Naicker v. Kondama Naicker, AIR 1939 Mad. 385 , Radhamoni Padhiari v. Tangudu Jaganatham, AIR 1978 Ori. 209 Smt. Manoramabai Xetie v. Smt.Lidia Belinda Simoes, AIR 1975 Goa 7 , Bank of Baroda v. Sansar Chand Kapur and another, AIR 1994 Del. 359 and Delhi Development Authority v. Shanti Devi and another, AIR 1982 Del. 159 , to support his case, that even after an exparte decree has been passed the defendant can participate in the remaining proceedings. That being the case the order of the learned Judge would virtually amount to decreeing the suit. He also submitted that from the decisions cited by him/it is seen that if good and sufficient cause is shown then the exparte order would be set aside. 4. In reply the learned Counsel Mr. A. Venugopal, who is also the party respondent vehemently argued that discretionary orders of the lower Court should not be interfered with any revision and cited Terene Traders v. Ramesh Chandra Jamnadas & Co. and another, AIR 1987 SC 1492 , Johri Singh v. Sukh Pal Singh and others, AIR 1989 SC 2073 , Ganga Prasad and others v. Ram Saran and others, AIR 1978 All. 43 , The Municipal Corporation of Delhi v. Suresh Chadra Jaipuria and another, AIR 1976 SC 2621 and Raj Kumar Soni v. Mohan Meakin Breweries Ltd., AIR 1970 All. 370, in support of his contentions. He also said that the petitioner had no intention of returning the money and all that she wanted to do is to delay the payment as far as possible. So he strongly urged that the deposit of the suit claimed was perfectly in order. He also pointed out that it was not as if the learned Judge directed the petitioner to pay to the respondent the entire suit claim. The interest of the petitioner was safeguarded since the amount was only directed to be deposited in the Court. 5. I have heard the contentions of both the parties. From the affidavit filed in support of the petition to set aside the ex parte order it is seen that a mistake had been made while recording dates and that is why neither the petitioner nor the counsel were present on 10.3.2000. 5. I have heard the contentions of both the parties. From the affidavit filed in support of the petition to set aside the ex parte order it is seen that a mistake had been made while recording dates and that is why neither the petitioner nor the counsel were present on 10.3.2000. When the mistake was realised on 13.3.2000, no time was lost by the petitioner and she had moved the application on 16.3.2000 itself. There is nothing in the conduct of the petitioner to show that she was deliberately trying to de lay the proceedings or that she had not made an honest offer to participate in the proceedings. The learned Judge's order is quite terse. The fact remains the respondent/plaintiff has still have to prove his case even after the ex parte order is passed. The Court has to be satisfied after recording the plaintiff’s evidence that the suit has to be decreed but here on a vary premature, the learned Judge has directed the petitioner to deposit the entire suit claim which, in my opinion is a very onerous condition and harsh punishment for being absent on 10.3.2000. A reasonable and sufficient explanation has been given by the petitioner for the absence on 10.3.2000. The order directing the petitioner to deposit the entire suit claim is clearly in excess of his jurisdiction, in an application under Order 9, Rule 7. The learned Counsel for the respondent said that he had filed an application for passing of interim decree and that is why this order has been passed. This may be true. But, it is not a reason why learned Judge should have passed such an order in this application. There is noting in the order to show that the learned Judge had been this in in mind while passing this order. 6. While setting aside the condition imposed by the learned Judge I have to keep in mind the grievance of the learned Counsel for the respondent that he apprehends that the suit will be delayed. The suit is of the year 1999. The written statement has also been filed which is another factor to show that the petitioner has been vigilant in setting out her defence. However, I direct the lower Court to dispose of the suit expeditiously within six months from the date of receipt of this order. 7. The suit is of the year 1999. The written statement has also been filed which is another factor to show that the petitioner has been vigilant in setting out her defence. However, I direct the lower Court to dispose of the suit expeditiously within six months from the date of receipt of this order. 7. In the result, this civil revision petition is partly allowed. The order of the III Assistant Judge dated 4.4.2000 in I.A.No.4318 of 2000 in O.S.No.4002 of 1998 is set aside in so far as the condition relating to depositing the suit claim in the Court is concerned. The learned Counsel for the petitioner submits that the cost of Rs.200 has already been paid. If the cost of Rs.200 has not already been paid, the petitioner is directed to pay within one week from the date of receipt of a copy of this order. Consequently, C.M.P.No.9186 of 2000 is closed.