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2001 DIGILAW 1063 (MAD)

N. Kasinathan v. M. Ganesan

2001-09-12

V.KANAGARAJ

body2001
Judgment :- 1. This civil revision petition is directed against the fair and decretal order dated 13.10.2000 made in I.A.No.5 of 2000 in A.S.No.62 of 1998 by the Court of Subordinate Judge, Tiruvarur, thereby dismissing an application filed by the plaintiff in the suit underO.41, Rule 21 and Sec.151, C.P.C. praying to set aside the order dated 8.10.1998 passed ex parte against the petitioner and the subsequent order dated 16.12.1998 thereby admitting the above appeal in A.S.No.62 of 1998. 2. Today, on a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the application had been filed underO.41, Rule 21 and Sec.151, C.P.C. praying for the relief extracted supra on grounds that the suit filed by the petitioner for permanent injunction had been decided in his favour and the respondent herein had preferred an appeal in A.S.No.190 of 1998 which got transferred to the Court of Subordinate Judge, and the same got renumbered as A.S.No.62 of 1998; that the very date on which the appeal had been taken on file was on 8.10.1998, and that the petitioner had been set ex parte on ground that he had refused to receive summons; that himself since being a Government servant leaving home by 8 a.m. and returning back home at 8 p.m. on all working days, including on 8.10.1998 when on false grounds that he had refused to receive the summons, had been set ex parte; that further allowing the above appeal suit passing the judgment against the petitioner on 28.12.1998 and as such, the petitioner came to understand the above facts only on 26.7.1999 when had suspicion, he checked up with his lawyer and the Court records, and therefore, it is false to allege that he refused to receive the summons and hence seeking to avoid further damage to his interests, had come forward to file the above application, seeking redressal. 3. 3. In the counter filed, the respondent would plead that only because of his refusal to receive the summons, the above appeal was allowed on merit; that the petitioner knew all happenings in the Court; that even thereafter, the petitioner having entered into an agreement with one Kalaiselvan regarding the sale of the property concerned, had gone to the file of the Court of Subordinate Judge, Nagapattinam, seeking specific performance in O.S.No.65 of 1997 and thereafter on false allegations, he filed yet another suit in O.S.No.77 of 1997 praying for permanent injunction on the file of the Court of District Munsif, Tiruvarur; that only because of his refusal, the judgment had been delivered on merit on 16.12.1998 and there is no necessity to admit the petition at all and on such grounds, the respondent would pray to dismiss the application. 4. The Court below, during its discussion on the application filed on the part of the petitioner herein, would believe that only since the petitioner had refused to receive summons, it had been noted by the process server, who is a Government servant and had opined that there is no point in the petitioner throwing allegations against the respondent; that the service has been completed by affixture in the presence of proper witness and to prove that he was not at home on that particular day and had gone for his job to Kumbakonam, he did not examine any witness in order to submit the proof, and therefore, trusting the remarks effected by the process server on the summons, had ultimately arrived at the conclusion to dismiss the application filed on the part of the petitioner herein. 5. Be that as it may, now the only point for consideration is whether the petitioner shall be allowed to participate in the appeal proceedings setting aside the judgment passed ex parte against him or not? 5. Be that as it may, now the only point for consideration is whether the petitioner shall be allowed to participate in the appeal proceedings setting aside the judgment passed ex parte against him or not? Even in the event of accepting the case of the respondent that it was a case of refusal of the summons resulting in the appeal being decided ex parte and not on merit, when the petitioner comes forward to contest the proceeding, there is no point in not allowing him to do the same thereby denying the very opportunity that the petitioner seeks to contest the matter setting aside the ex parte judgment passed by the Court below, since even for a default to appeal before the Court, denial of opportunity, however in a belated manner to contest the very suit or appeal or application is not the answer, and therefore, the petitioner could only be punished for his default with exemplary costs and hence this Court is of the firm view that the lower Court should have allowed the application as prayed for, thus further allowing the petitioner to participate in the appeal suit, so as to decide the same on merit on exemplary costs imposed on the petitioner, instead of dismissing his application on the denial of opportunity, so as to arrive at a conclusion upon hearing both parties with full opportunity thus delivering the judgment on merit and in accordance with law. In result. (i) the above civil revision petition is allowed with an exemplary cost of Rs.1,000 that is to be paid to the respondent either in person or through his counsel or by means of deposit in the lower Court, within a period of 30 days from the date of receipt of a copy of this order by the lower Court, lest, the order passed allowing the application will stand automatically cancelled; (ii) the fair and decretal order dated 13.10.2000 made in I.A.No.5 of 2000 in A.S.No.62 of 1998 by the Court of Subordinate Judge, Tiruvarur, is hereby set aside; (iii) the application filed on the part of the petitioner before the lower Court in I.A.No.5 of 2000 in A.S.No.62 of 1998 is allowed. (iv) however, realising the urgency involved in this matter, a further direction is given to the lower Court concerned to expedite the hearing of the appeal posting the same in the priority list for delivering the judgment with due opportunity for the parties to be heard on merit and in accordance with law, within three months from the date of receipt of a copy of this order by the lower Court. 6. Consequently, C.M.P.No.19207 of 2000 is closed.