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2002 DIGILAW 1260 (MAD)

Sri Ranga Gounder and Others v. Jaganathan & Co.

2002-10-11

P.THANGAVEL, S.JAGADEESAN

body2002
Judgment :- S.JAGADEESAN, J. Though service on the respondent is awaited in CMA.No.1716 of 2002, Mr.P.Peppin Fernando, learned counsel appearing for the same respondent in CMA.No.266 of 2001 has agreed to take notice. Further, Mr.Peppin Fernando, learned counsel undertakes to file vakalat for the respondent in CMA.No.1716 of 2002 and he will file it in the course of the day. Hence, the appeals are taken up for joint final disposal. 2. The defendants in O.S.No.134 of 1996 on the file of the Subordinate Judge, Sankarankoil are the appellants herein. 3. The respondent herein filed the said suit against the appellants for recovery of a sum of Rs.3,18,800/-. The appellants allowed the suit to be decreed ex parte on 17.2.1999. Thereafter, the appellants in CMA.No.266 of 2001 filed I.A.No.28 of 2000 for setting aside the said ex parte decree. The appellants in CMA.No.1716 of 2002 also filed a separate application in I.A.No.29 of 2000 for setting aside the exparte decree. The learned Subordinate Judge, Sankarankoil, by his order dated 24.4.2001, dismissed the said applications. Aggrieved by the same, the present appeals have been filed. 4. It is the contention of the learned counsel for the appellants that the appellants filed Tr.CMP.No.18137 of 1998 before this Court to transfer O.S.No.134 of 1996 from the file of the Subordinate Judge, Sankarankoil to the file of Subordinate Court, Erode for joint trial along with O.S.No.632 of 1998 filed by the appellants herein. Since, pending the said Tr.CMP., this Court granted stay, the counsel did not appear before the lower Court and consequently, the Court below passed the ex parte decree in spite of the stay granted by this Court. 5. Learned counsel for the respondent, however, contended that this Court granted stay pending Tr.CMP only for four weeks and thereafter, the stay was not extended. It is the duty of the appellants or their counsel to appear before the Court below and seek for an adjournment. The absence of both made the Court below to pass an ex parte decree, which cannot be said to be illegal. Hence, the Court below rightly dismissed the application for setting aside the ex parte decree. 6. We have carefully considered the contentions of the learned counsel on either side. 7. The absence of both made the Court below to pass an ex parte decree, which cannot be said to be illegal. Hence, the Court below rightly dismissed the application for setting aside the ex parte decree. 6. We have carefully considered the contentions of the learned counsel on either side. 7. A perusal of paragraphs 7 and 10 of the order of the Court below clearly reveals as to how many adjournments had been granted to enable the parties to proceed with the trial. The statement made by the learned counsel for the respondent that the stay was granted only for a period of four weeks and the same was not extended further is accepted by the learned counsel for the appellants. Whenever the trial Court gives the hearing dates, it is for the counsel as well as the parties to be present on such dates before the Court and make a representation either for adjournment or otherwise. Merely because an order of interim stay of the trial has been granted by this Court for four weeks, it will not absolve the learned counsel for the appellants or the appellants from their appearance before the Court below for ever or till the disposal of the Tr.CMP. Hence, we do not find any error in the order of the Court below, as there is a deliberate default on the part of the appellants as well as their counsel in not appearing before the Court on the hearing dates. 8. However, taking into consideration of the fact that the appellants filed a suit O.S.No.632 of 1998 on the file of the Subordinate Court, Erode making a counter claim and also the quantum of claim involved in the present suit, we are of the view that the appellants can be given an opportunity to defend the suit. 9. Accordingly, we set aside the order of the Court below on condition that the appellants in each appeal shall pay a sum of Rs.2,000/- (Rupees two thousand only) by way of costs to the respondent herein directly within one week and deposit a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) representing the part of the suit claim within four weeks from today to the credit of O.S.No.134 of 1996 on the file of the Subordinate Court, Sankarankoil. 10. 10. With the above direction, the civil miscellaneous appeals are allowed, failing to comply with any of the above conditions, the appeals shall stand dismissed. No costs. Consequently, the above CMP is dismissed as unnecessary. 11. Since it is represented that the appellants have filed the suits before the Subordinate Court, Erode and the Tr.CMPs filed before this Court had been dismissed in view of the ex parte decrees in both the suits O.S.Nos.134 and 135 of 1996 and now that the ex parte decrees are set aside, we are of the view that all the four suits can be disposed of jointly. Hence, O.S.Nos.134 and 135 of 1996 pending on the file of the Subordinate Court, Sankarankoil are directed to be transferred to the Subordinate Court, Erode for joint trial along with O.S.Nos.606 and 632 of 1998.