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2001 DIGILAW 107 (MAD)

Vaijayanthimala & Others v. A. Ramasamy

2001-01-29

D.MURUGESAN

body2001
Judgment : 1. The defendants in O.S.No.207 of 1994 on the file of Sub Court, Periyakulam are the petitioners in this civil revision petition. The petitioners have challenged in this civil revision petition the fair and decretal order passed by the learned Principal D1strict Judge, Madurai in C.M.A.No.20 of 1999 dated 21.9.2000 confirming the order of the learned Sub Judge, Periyakulam made in I.A.No.385 of 1996 in O.S.No.207 of 1994 dated 21.12.98. The respondent filed a suit in Sub Court, Periyakulam against the petitioners herein for a judgment and decree for specific performance and in the alternative to bring the schedule mentioned property for sale. In the said suit, the petitioners were set ex parte on 5.7.1996 and an ex parte decree was passed on 11.7.1996. The petitioners filed I.A.No.385 of 1996 to set aside the judgment and decree passed on 11.7.1996. The 1st petitioner filed an affidavit in support of the said petition stating that when the suit was posted on 11.7.1996 for filing written statement, she could not attend the hearing due to jaundice as she was bedridden from 8.7.1996. Due to her illness the 1st petitioner was unable to instruct her counsel to file the written statement. Therefore, the written statement could not be filed on 11.7.1996. Therefore, she had prayed for dismissal of the ex parte decree. The respondent filed a counter affidavit stating that the suit was originally posted for filing of written statement on 15.12.1995. Since the defendants/ petitioners did not file the written statement for nearly one year, the suit was finally posted on 12.4.1996 for filing written statement. On the said date, the defendants did not file the written statement. Therefore, they were set ex parte on the next adjourned date namely, 5.7.1996 and the case was posted on 11.7.1996 for ex parte evidence of the plaintiff. Even on the said date, there was no representation on behalf of the defendants/ petitioners. Therefore, the suit was decreed ex parte on 11.7.1996. Thereafter only an application was filed on 8.8.1996 to set aside the ex parte decree dated 11.7.1996. Even in the said application they have not given any reason for the delay in not filing the application to set aside the ex parte decree from 5.7.1996 as perO.9, Rule 13 of C.P.C. In the absence of the same, the plaintiff prayed for dismissal of the application. Even in the said application they have not given any reason for the delay in not filing the application to set aside the ex parte decree from 5.7.1996 as perO.9, Rule 13 of C.P.C. In the absence of the same, the plaintiff prayed for dismissal of the application. Further, the plaintiff stated that even though there are 4 defendants, only the 1st defendant/1st petitioner filed an affidavit and she has not filed any document in support of her claim that she was affected with jaundice. Further, there was no explanation as to why the case was not prosecuted by the other defendants. Therefore, the plaintiff prayed for dismissal of the said application. The said application came to be dismissed by the learned Sub Judge, Periyakulam on the ground that there was not sufficient explanation from the defendants as to why they could not appear on 5.7.1996 when they were set ex parte on 11.7.1996 when an ex parte decree was passed. The learned Judge absolutely found that there was no explanation from 5.7.1996 till 8.7.1996, when the 1st petitioner claims to have affected by jaundice. Therefore, the learned Sub Judge dismissed the application. The appeal preferred by the petitioners in C.M.A.No.20 of 1999 was also dismissed by the learned Principal District Judge, Madurai. 2. The learnedcounsel for the petitioners would contend that even though the 1st petitioner alone has filed an affidavit to set aside the ex parte decree, she has stated that from 8.7.1996 onwards she was bed ridden due to jaundice and therefore she could not appear before the Court on 11.7.1996. On coming to know of the ex parte decree, the petition to set aside the ex parte decree was filed on 8.8.1996. In fact, the 1st petitioner examined herself as one of the witnesses and she has explained the delay. The learned counsel would rely upon a judgment reported in C.P.Srivatsava v. Shri R.K.Raizada and others C.P.Srivatsava v. Shri R.K.Raizada and others C.P.Srivatsava v. Shri R.K.Raizada and others (2000 2 C.T.C. 27 to contend that the discretion of the Court to consider an application underO.9, Rule 13 of C.P.C. should be normally exercised in favour of party approaching the Court within limitation. Therefore, the learned counsel submitted that both the orders of the Courts below are liable to be set aside and the petitioners should be given an opportunity to defend their case on merits. 3. Therefore, the learned counsel submitted that both the orders of the Courts below are liable to be set aside and the petitioners should be given an opportunity to defend their case on merits. 3. The learned counsel for the respondent on the other hand would contend that in the absence of explanation for each days delay from the petitioners from the date of the order and also in the absence of any affidavit filed by the petitioners 2 to 4 to explain their absence on 11.7.1996, the petition for setting aside the ex parte decree cannot be entertained and both the Courts below have rightly held that the petitioners are not entitled to succeed in the petition. Therefore, the learned counsel prayed for the dismissal of the civil revision petition. 4. The suit was filed in the year 1994 and the same was posted to enable the defendants to file written statement on 15.12.1995. Thereafter the same was posted to 12.4.1996 and was finally adjourned to 5.7.1996 as a last chance for filing of the written statement. Even on the said date, there was no representation and therefore the petitioners were set ex parte and thereafter the suit was posted for recording ex parte evidence on 11.7.1996. Even on the said date, there was no representation on behalf of the defendants. Therefore, ex parte decree was passed. In support of the petition to set aside the ex parte decree, an affidavit of the 1st petitioner has been filed. In the said affidavit there is no explanation from the petitioner for their non-appearance on 5.7.1996 when the petitioners were set ex parte and the petition has been filed only after they were set ex parte on 11.7.1996, that too an affidavit has been filed only by the 1st petitioner stating that she could not attend the Court since she was affected by jaundice and there were no documents adduced to sustain the said contention. That apart there was not even whisper from the petitioners 2 to 4 about their absence before the Court when they were set ex parte on 5.7.1996 and an ex parte decree was passed on 11.7.1996. Further, an application to set aside the ex parte decree was not filed within 30 days from 5.7.1996, but it was filed only on 8.8.1996. Further, an application to set aside the ex parte decree was not filed within 30 days from 5.7.1996, but it was filed only on 8.8.1996. In the judgment relied upon by the learned counsel for the petitioners in fact, the Supreme Court has specifically held in paragraph 7 as follows: “UnderO.9, Rule 13, C.P.C.. an ex parte 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 “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 ofO.9, Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Court 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 interior 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 condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the list decided on merits.” 5. Therefore, it is true that the Supreme Court while considering the words “was prevented by any sufficient cause from appearing” held that the said words 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. Therefore, it is true that the Supreme Court while considering the words “was prevented by any sufficient cause from appearing” held that the said words 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. However, in this case even though all the 4 defendants were set ex parte as early as on 5.7.1996, there is no explanation whatsoever from the petitioners 2 to 4 for their nonappearance either on 5.7.1996 when the ex parte order was passed or on 11.7.1996 when the ex parte decree was passed against them and the only explanation offered by the 1st petitioner that she was effected from jaundice from 8.7.1996. There was no explanation even by the 1st petitioner for her absence to file written statement on 5.7.1996 on which date even according to the 1st petitioner she was not affected by jaundice. When in the absence of any explanation, it cannot be contended that there were sufficient cause for the petitioners for their failure to appear before the Court either on 5.7.1996 or on 11.7.1996. Therefore, the judgment relied upon by the learned counsel for the petitioners will not be helpful to the petitioners on the facts and circumstances of the case. In the absence of non explanation for the absence of the petitioners on 5.7.1996, I do not find any merit in the contention of the learned counsel for the petitioners for setting aside the ex parte decree. I also do not find any error in the orders of both the Courts below. 6. In view of the above, this civil revision petition fails and the same is dismissed. No costs. Consequently, C.M.P.No.1991 of 2000 is also dismissed.