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2003 DIGILAW 1206 (MAD)

K. Thirumurthy & Another v. Muthammal & Others

2003-08-01

S.K.KRISHNAN

body2003
Judgment : 1. This revision petition has been filed against the fair and decretal order dated 112. 2002 made in I.A. No. 640 of 2002 in O.S. No. 16 of 2002 on the file of the Additional District Court, Fast Track Court No. IV Coimbatore at Tripur. 2. Therevision petitioners are defendants in the said suit. As against them the plaintiffs have instituted a suit for the relief of specific performance. 3. It is stated that on 12. 1996 the defendants have entered into an agreement with one Subbay Gounder, who is the husband of the first plaintiff, to sell the suit properties for Rs.3,24,000 It is further stated that on the date of sale agreement, the defendants have received a sum of Rs.3,00,000 from the first plaintiff’s husband. Thereafter, the husband of the first plaintiff died on 14. 1996. Since the defendants refused to execute the sale deed in favour of the plaintiffs. Legal heirs of the late Subbay Gounder, inspite of their readiness and willingness to pay the balance, the said suit was filed against the defendants. 4. After appearance, the defendants filed their written statement. According to the defendants they received a sum of Rs.1,50,000 from the first plaintiff’s husband to meet urgent family expenses. Since the late Subbay Giunder demanded to handover the original documents, the same were handed over by the defendants to the late Subbay Gounder and they also executed the sale agreement in his favour. 5. When the said case was posted for trial on 22. 2002, as no representation was made either by the defendants or by their counsel on that day and therefore, the said suit was decreed ex parte. Thereafter, the defendants contacted their counsel on 210. 2002 and they have instructed to file a petition to set aside the order passed against them. Accordingly, the defendants filed a petition in I.A. No. 640 of 2002 to condone the delay of 206 days in filing the petition to set aside the ex parte order. That petition was vehemently contested by the plaintiffs. 6. After enquiry, the learned Judge dismissed the said petition for condoning the delay of 207 days in filing the petition to set aside the ex parte order. As against the fair and decretal order passed by the learned Additional District Judge, present revision has been filed. 7. That petition was vehemently contested by the plaintiffs. 6. After enquiry, the learned Judge dismissed the said petition for condoning the delay of 207 days in filing the petition to set aside the ex parte order. As against the fair and decretal order passed by the learned Additional District Judge, present revision has been filed. 7. The only short point that arises for consideration is whether the order passed by the learned Additional District Judge is sustainable in law. 8. Heard the learned counsel for the petitioner as well as their respondents. 9. The learnedcounsel appearing for the revision petitioner would contend that due to unavoidable circumstances the revision petitioner has not able to attend the Court when the case was posted for trial on 22. 2002. 10. Further the learned counsel would point out that since the revision petitioner was indisposed and took continuous treatment for typhoid and blood pressure, he was not able to file the petition to set aside the said ex parte decree. 11. The learned counsel would contend that due to unavoidable circumstances and prolonged illness, the revision petitioner has not able to attend the Court when the case was posted for trial on 22. 2002. In para 4 of the affidavit filed by the revision petitioner it is stated as follows: “4. I further submit that the above case was posted on 22. 2002 for trial. I am Suffering from Diabetes. Hence I was taking treatment in hospital at the time of the suit came up for trial. Therefore, I could not appear before this Hon’ble Court on 22. 2002. Hence, this Hon’ble Court called me and setting ex parte, as I was not appeared on that day.” 12. Insupport the contention the learned counsel appearing for the revision petitioner relied on the following decisions for consideration of this Court. 13. In G.P. Srivatsava v. Shri R.K. Raizada and others, J.T. (2000)2 S.C. 569, the Division Bench of the Apex Court observed as follows: “8. In the instant case, it is not disputed that the nephew of the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. Both the trial Court as also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of put a reasonable defence and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period. Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex parte decree set aside on such other terms and conditions as were deemed proper by the trial Court. On account of the unrealized and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant-defendant is allowed to prove his case within a reasonable time. 9: Under the circumstances, the appeals are allowed by setting aside the order of the High Court and of the trial Court. The ex parte judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000 to the other side. The trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of copy of this order.” .14. In Chhabi Kulavi and another v. Ganesh Chandra Mondal, J.T. (2001)1 S.C. 267, their Lordships observed as follows: .“4. In our view, there was sufficient cause for the delay. The appellant’s husband was ill and became blind. Thereafter, it is the advocate who has filed the appeal in the wrong Court. For these causes the appellants cannot be blamed. We, therefore, condone the delay in filing the appeal. The High Court shall number the appeal, if not already numbered and take it up for final hearing. We request the High Court to dispose of the appeal on merits as expeditiously as possible and preferably within a period of six months.” 15. Referring the legal positions referred in the above stated decisions and also emphasizing the reasons for not attending the Court by the revision petitioner on that particular day the learned counsel would point out that the delay of 207 days could be condoned. Referring the legal positions referred in the above stated decisions and also emphasizing the reasons for not attending the Court by the revision petitioner on that particular day the learned counsel would point out that the delay of 207 days could be condoned. In view of considering the opportunity of the revision petitioners to contest the above suit, the delay of 207 days in filing the petition to set aside the ex parte decree could be condoned. 16. The learned counsel appearing for the respondent would contend that the reasons shown by the revision petitioner for not attending the Court on that particular day the said Court is a false one. Moreover the petition to condone the delay of 207 days filed only after the inordinate delay. The reasons for not filing the petition to set aside the order in time, stated by the revision petitioners before the lower Court was not accepted for the reasons that the revision petitioner has not stated the bona fide reasons. Further the reasons stated by the revision petitioner for not filing the said petition in time are found to be a false one. 17. In such circumstances, considering the false statement given by the revision petitioners the learned District Munsif rightly dismissed the said petition. In such circumstances, the delay of 207 days should not be condoned. .18. It is a fact that the reasons, for causing the delay of 207 days in filing the petition to set aside the ex parte decree, stated by the revision petitioners are found to be a false one. The learned Additional District Judge, has elaborately discussed this point in his order. Since the revision petitioners have not stated the bona fide reasons before the said Court for causing such delay in filing the said petition, the learned Additional District Judge dismissed the said petition. 19. It is seen that the revision petitioners have not shown sufficient reasons to condone the delay of 207 days before the learned Additional District Judge. Moreover the reasons stated by the revision petitioners before the learned Additional District Judge are found to be false one. It is stated that if the delay is not condoned, the revision petitioners will be put to irreparable loss and lost an opportunity to defend their case. Moreover the reasons stated by the revision petitioners before the learned Additional District Judge are found to be false one. It is stated that if the delay is not condoned, the revision petitioners will be put to irreparable loss and lost an opportunity to defend their case. In such circumstances, it is just and necessary for this Court to consider the petitioner filed by the revision petitioner. Further in order to afford an opportunity to defend the suit to the revision petitioners the delay of 207 days can be condoned even though the reasons stated by the revision petitioners are found to be false one. 20. Considering the facts and circumstances of the case, to meet the ends of justice, it is just and necessary for this Court, following the decisions of the Supreme Court in Rohini Prasad v. Kasturchand, J.T. (2000)2 S.C. 573, to condone the delay of 207 days in filing the petition to set aside the ex parte decree. 21. Accordingly, while setting aside the order of the learned Additional District Judge, Tirupur, the revision is allowed condoning the delay of 207 days in filing the petition set aside the ex parte decree on condition that the petitioners shall pay a sum of Rs.5,000 to the respondents herein, within four weeks from the date of receipt of copy of this order, failing which, the petition for condoning the delay shall stand dismissed automatically. On such compliance, the trial Court is directed to restore the suit in O.S. No. 16 of 2002 and shall proceed with further according to law. No costs. Consequently, the C.M.P. No. 4024 of 2003 is closed.