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2003 DIGILAW 822 (MAD)

Chinna Gounder v. Chellappa Gounder

2003-06-17

E.PADMANABHAN, S.K.KRISHNAN

body2003
E.PADMANABHAN, J.: The appellant herein instituted the suit O.S. No.866 of 1984 on the file of the Subordinate Judge of Salem on 27.9.1984 against the respondent seeking for recovery of Rs.36,967.50 being the amount due on a promissory note alleged to have been executed by the respondent on 28.2.1982 for a consideration of Rs.30,000 with interest at the rate of 12% per annum. The suit has been transferred from the file of the Subordinate Judge of Salem to the file of the Subordinate Judge of Sankari and renumbered as O.S. No.367 of 1985. The suit came to be posted on 6.7.1993. On that date, the appellant, who is the plaintiff in the suit, failed to appear and, therefore, the suit was dismissed for nonprosecution. 2. The appellant herein moved interlocutory application under O.9, Rule 9, C.P.C. to set aside the dismissal and sought for restoration of the suit on the ground that he is an aged person, aged 75 years, that he has not received the intimation from his Advocate about the date of hearing, that due to old age, he could not frequent himself to see his counsel and his non-appearance is neither wilful nor deliberate and prayed for restoration of the suit. 3. The suit was dismissed for non-prosecution on 6.7.1993, but the application has been filed on 5.8.1993. There is no controversy that the application has been filed within time. The learned Subordinate Judge took the application on file, did not assign any number nor even ordered notice nor the respondent/ defendant has filed any counter nor there is anything to show that the respondent/ defendant opposed the application, however, dismissed the application by stating that the application has been file don the thirtieth day and that the appellant is bent upon delaying the proceedings and harassing the respondent, while recording such reasons, the application has been dismissed on 25.2.1994. Challenging the same, the present appeal has been preferred. 4. Heard Mr.Valliappan, learned counsel appearing for the appellant and Mr.Prem Kumar, learned counsel appearing for the respondent. 5. Mr.Valliappan, learned counsel for the appellant rightly contended that there is no justification at all to dismiss the application, which has been filed within time and in the absence of any counter the Court below should have accepted the reasons assigned by the appellant in the affidavit filed in support of the application. 5. Mr.Valliappan, learned counsel for the appellant rightly contended that there is no justification at all to dismiss the application, which has been filed within time and in the absence of any counter the Court below should have accepted the reasons assigned by the appellant in the affidavit filed in support of the application. The counsel for the respondent, though resisted the appeal, but is unable to sustain the order, as no counter has been filed and there is nothing to show that the respondent herein has resisted the application before the Court below The Court below took up the application on 25.2.1994 and straight away dismissed the application. 6. The learned subordinate Judge has proceeded on a misconception and it is apparent on the face of the order. Merely because the application has been filed on the thirtieth day, it cannot be assumed that there are no bona fides nor it could be stated that the appellant has no intention to continue the suit or the appellant is only interested in delaying the proceedings. The appellant as the plaintiff, who has come forward with the claim of Rs.36,967.50, it cannot be assumed that the appellant has no intention at all to proceed with the suit. 7. The learned Subordinate Judge has failed to take note of the fact that the appellant was already aged 75 years and he was not keeping good health. The further averment that the appellant has not received the intimation from his counsel has not been taken into consideration. Had the Court below granted time to the respondent even to file a counter and heard the arguments, the Court below would not have committed such an illegality or error. 8. The suit is for recovery of amount due on a promissory note and the suit has been pending since 1984. The appellant has paid substantial Court-fees. The Court below should have atleast put the appellant on terms and allowed the application as the suit has been dismissed for non-prosecution on the first occasion. There is no justification at all to dismiss the application. We do not find any justification or reason or rhyme in the order passed by the Court below in rejecting the application filed under O.7, Rule 9, C.P.C. Sufficient cause has been shown, but no opportunity has been offered by the learned Subordinate Judge. There is no justification at all to dismiss the application. We do not find any justification or reason or rhyme in the order passed by the Court below in rejecting the application filed under O.7, Rule 9, C.P.C. Sufficient cause has been shown, but no opportunity has been offered by the learned Subordinate Judge. Had the Subordinate Judge offered an opportunity, either to file a counter or to the appellant to examine himself, the appellant would have produced materials. Curiously, the learned Subordinate Judge had not even numbered the application, though it has been filed within time and such an application is maintainable in law. 9. Taking into consideration of the entire facts and there being no specific objection to the application, nor even it has been recorded by the Court below that the application is being opposed by the respondent/ defendant, we allow the appeal set aside the fair and decreetal order dated 25.2.1994 passed in unnumbered I.A.No. of 1994 and also order restoration of the suit O.S. No.367 of 1985 dismissed on 6.7.1993. We also direct the learned Subordinate Judge of Sankari to take up the suit out of turn and dispose of the same on merits and according to law after affording opportunity to either side. The parties shall bear their respective costs.