Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 1638 (MAD)

ByilvanaliasRamasamy v. Mathiazhagan

2001-12-13

A.SUBBULAKSHMY

body2001
ORDER: As against the order passed by the learned District Munsif-cum-Judicial Magistrate at Paramathi, in I.A.No.561 of 1999 in O.S.No.203 of 1995 on 24.7.2000 allowing the petition to condone the delay of 711 days on payment of cost of Rs.1,000 and also deposit of Rs.1,200 on or before 25.8.2000 failing which, the petition shall stand dismissed, the C.R.P. is filed. 2. The plaintiffs 2 to 5 in the suit are the revision petitioners. Plaintiffs filed the suit for declaration and permanent injunction. That suit was decreed on 25.6.1977. The defendant filed the petition to set aside the ex parte decree along with a petition to condone the delay of 711 days on 6.8.1999. The condonation of delay petition was heard by the learned District Munsif, Paramathi who allowed the said petition on payment of cost of Rs.1,000 and also on deposit of Rs.1,200 on or before 25.8.1999 failing which, the petition shall stand dismissed. 3. The learned counsel for the revision petitioners has submitted that the defendant did not take any step to set aside the ex parte decree in time; and after a lapse of 711 days he had come forward with the petition to set aside the ex parte decree along with a petition to condone the delay of 711 days filing the petition for setting aside the ex parte decree; and as there is no proper explanation for the delay, the delay cannot be condoned and that the order passed by the learned District Munsif is not sustainable. 4. On the other hand, the learned counsel for the respondent/ defendant submitted that the plaintiffs have based the suit claim only on adverse possession and as the defendants has got valid defence in the suit, he must be given an opportunity to put forth his defence in the suit. According to him, the order passed by the learned District Munsif may not be interfered with. 5. According to him, the order passed by the learned District Munsif may not be interfered with. 5. It is seen from the affidavit, filed by the defendant that on the date when the case was posted, he could not appear on that day, since he went to his native place Musiri in connection with his business and there, he sustained a fracture on his leg and that he was taking treatment for his fracture at Musiri, he was not in a position to contact his counsel to know about the stage of the suit and only after he received notice in the E.P., he came to know of the ex parte decree in the suit and then he came with the petition. 6. In his evidence, he has stated that he was taking treatment for his leg fracture and therefore he could not meet his counsel, and that only after receipt of notice in the E.P., he came to know about the disposal of the suit ex parte. 7. During the cross-examination, he has stated that after he took treatment at Karur for the fracture of his leg, he went to Srirangam where he stayed with his brother for a period of two years and during that period of two years, he did not meet his counsel and therefore only after receipt of notice in the E.P., he came to know about the ex parte decree in the suit. 8. It is seen from the records in the E.P. proceedings that only after his arrest, he appeared before the Court and he also executed muchiliga and only after executing muchiliga in the execution proceedings, he filed the petitions to condone the delay and to set aside the ex parte decree. So, it is evident that even after notice in E.P., the defendant did not file any petition to set aside the ex parte decree with a petition to condone the delay in doing the same but only after he was arrested as per the order in the E.P., he came forward with these petitions. So, it is evident that there are laches on the part of the defendant and he was indifferent and that he did not contact his counsel wantonly. 9. On a perusal of the evidence of the defendant, it is evident that the defendant was not interested in defending the suit and he was very lethargic. So, it is evident that there are laches on the part of the defendant and he was indifferent and that he did not contact his counsel wantonly. 9. On a perusal of the evidence of the defendant, it is evident that the defendant was not interested in defending the suit and he was very lethargic. It is also seen that even after notice in the E.P. he did not approach his counsel immediately to take steps to have the ex parte decree set aside. But his evidence is that he sustained a fracture on his leg and therefore, he was not in a position to move. But the learned counsel for the respondent represented that his party gave instructions to his counsel for filing a petition to set aside the ex parte decree, but some how the said petition was not filed in time, and the petitioner should not be deprived of his opportunity to contact the matter. He further represented that the defendant has got valid defence in the suit and he must be given an opportunity to put forth his case in the trial and that the suit should be decided on merits. Even though the defendant was different, lethargic and his conduct and attitude show that he was delaying the matter without approaching his counsel in time, in the interest of justice an opportunity can be given to the defendant to put forth his defence. If really the defendant has any valid defence in his case, he could not be deprived of opportunity of contesting the suit. The trial Court has also considered that aspect only and has found that the defendant can be given an opportunity to put forth his defence and accordingly, allowed the petition. Taking into consideration, the conduct and attitude of the defendant in conducting the case, the Court feels that cost of Rs.1,000 was awarded by the trial Court is not sufficient and the defendant must be directed to be paid some more cost. 10. The defendant is directed to pay further cost of Rs.3,000 (Rupees three thousand) in addition to the cost of Rs.1,000 and deposit of Rs.1,200 as ordered by the trial Court within a period of two weeks from the date of receipt of a copy of this order. 10. The defendant is directed to pay further cost of Rs.3,000 (Rupees three thousand) in addition to the cost of Rs.1,000 and deposit of Rs.1,200 as ordered by the trial Court within a period of two weeks from the date of receipt of a copy of this order. The defendant is directed to pay the cost non-awarded to the plaintiffs in the trial Court on payment of such cost in ordered above by the defendant to the plaintiffs, the trial Court is directed to restore the suit and dispose of the same within two months from the date of restoration of the suit to file. The C.R.Ps. is disposed of on the above terms. No costs. Consequently, C.M.P. is closed.