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2005 DIGILAW 1342 (MAD)

K. Perumal v. D. M. Kandasamy

2005-08-11

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition is preferred against the order of the Subordinate Judge, Sankari, made in I.A.No. 765 of 2002 in I.A.No. 527 of 2002 in O.S.No. 164 of 2002 dated 19-06-2003.) This Revision is preferred against the order of the Subordinate Judge, Sankari, made in I.A.No. 765 of 2002 in I.A.No. 527 of 2002 in O.S.No. 164 of 2002 dated 19-06-2003, dismissing the Application filed under Or.9 R.7 r/w. Sec.151 C.P.C., declining to set aside the exparte order passed in I.A.No. 527 of 2002. The Defendant is the Revision Petitioner. 2. The Plaintiff filed the Suit in O.S.No. 164 of 2002 on the basis of the Promissory Note for recovery of a sum of Rs.66,750/-, alleging that the Defendant has borrowed a sum of Rs.50,000/- and did not repay the amount inspite of repeated demands and Legal Notice. 3. The Defendant has filed the Written Statement contending that the Plaintiff and the Defendant are related and that they are known to each other for more than twenty years. The Defendant has further alleged that to sink a borewell in his land, there was insufficiency of funds and that he had borrowed a sum of Rs.10,000/- from the Plaintiff's Finance in 1985. For the borrowal of Rs.10,000/-, the Defendant had signed in the blank Promissory Note and handed over to the Plaintiff's Finance. The Defendant had paid the amount to the Plaintiff, but the Plaintiff has evaded to return the signed Promissory Note, due to which differences arose between the Plaintiff and the Defendant and they are not in talking terms for more than ten years. The Plaintiff is not entitled to claim any amount on the basis of the Defendant's signature obtained in the Promissory Note in 1985. 4. The Plaintiff has filed the I.A.No. 527 of 2002 and sought for attachment before judgment of the properties of the Defendant. In the said Application, the Defendant has entered appearance. Despite taking number of adjournments, the Defendant has not filed any Counter Statement. Finally, the Application was posted on 25-11-2002 and for non-filing of the Counter Statement, the Defendant was set exparte and order of attachment of his properties was passed on 25-11-2002. 5. I.A.No. 765 of 2002 has been filed by the Revision Petitioner/Defendant under Or.9 R.7 r/w. Sec.151 C.P.C. praying to set aside the exparte order passed in I.A.No. 527 of 2002 on 25-11-2002. 5. I.A.No. 765 of 2002 has been filed by the Revision Petitioner/Defendant under Or.9 R.7 r/w. Sec.151 C.P.C. praying to set aside the exparte order passed in I.A.No. 527 of 2002 on 25-11-2002. According to the Defendant, he was suffering from Typhoid Fever and he could not give proper instructions to his Counsel and hence, he was set exparte and that his absence was neither due to negligence nor carelessness and hence, prayed to set aside the exparte order passed against him 6. The Application was resisted by the Plaintiff contending that sufficient opportunity was afforded to the Defendant to file his Counter Statement, but no Counter Statement was filed. In view of the hectic arrangements of the Defendant to sell the Petition mentioned properties the Court has passed the order of attachment on 25-11-2002. The Defendant has not made out sufficient cause to set aside the order of attachment. 7. The learned Subordinate Judge, Sankari, has dismissed the Application stating that no material has been produced to show that the Defendant was bedridden. Pointing out that the reason stated in the Petition is a lame excuse, the learned Judge has dismissed the Application. 8. As against the order of dismissal of the Application in I.A.No. 765 of 2002, the Revision Petitioner/Defendant has preferred this Revision. The learned counsel for the Revision Petitioner has contended that the agricultural lands sought to be attached are worth more than Rs.10,00,000/-, which have been attached for the Suit claim of Rs.66,000/-. Submitting that the attachment before judgment is penal in nature, the learned counsel for the Revision Petitioner/Defendant contended that sufficient opportunity must be afforded to the Revision Petitioner/Defendant to file his Counter Statement in I.A.No. 527 of 2002. 9. Onbehalf of the Respondent/Plaintiff, the learned Counsel Mr. K.Yamunan has drawn the attention of the Court to the number of adjournments granted to the Defendant to file his Counter Statement and that despite several opportunities, since no Counter Statement was filed, the Court has rightly passed the order of attachment in I.A.No. 527 of 2002. The learned Counsel has further submitted that the Revision Petitioner/Defendant has not produced any document or medical evidence showing that he was suffering from Typhoid during 25-11-2002 and that he was unable to attend the Court to give instructions to his Counsel for filing the Counter Statement. 10. The learned Counsel has further submitted that the Revision Petitioner/Defendant has not produced any document or medical evidence showing that he was suffering from Typhoid during 25-11-2002 and that he was unable to attend the Court to give instructions to his Counsel for filing the Counter Statement. 10. By a perusal of the Counter Statement and other materials on record, it is seen that sufficient opportunity was afforded to the Revision Petitioner/Defendant to file his Counter Statement in I.A.No. 527 of 2002. For filing the Counter Statement, the Defendant has taken several adjournments, viz., 7-10-2002, 29-10-2002, 12-11-2002 and finally it was posted to 25-11-2002, on which date the Defendant has not filed his Counter Statement. 11. Whether the Defendant was prevented by sufficient cause from not appearing in the Court and filing the Counter Statement is the short point that arises for consideration in this Revision Petition. 12. Sufficient cause in each case is a question of fact. According to the Defendant, he was suffering from Typhoid Fever and hence he could not contact his Counsel for giving proper instructions. No evidence has been produced showing that the Defendant was suffering from Typhoid Fever. The Defendant's explanation for his absence on 25-11-2002 and non-filing of his Counter Statement is not substantiated. 13. From the number of hearing dates, it is seen that I.A.No. 527 of 2002 was adjourned to several dates. The contention that no sufficient opportunity was afforded to the Defendant has no force. When a Party has engaged the Counsel and without giving proper instructions to file the Counter Statement and when the Defendant suffers an adverse order, the Defendant cannot be heard to say that he was prevented by sufficient cause and that he was not given sufficient opportunity to file his Counter Statement. 14. The Suit is for recovery of money based on the Promissory Note. The Defendant admits his signature in the Promissory Note; but pleads that the Promissory Note is not supported by consideration and also the Defendant pleads discharge. Definite allegations have been made in the Counter filed by the Respondent/Plaintiff stating that the Defendant is making hectic arrangements to sell the Petition mentioned properties to one Jayapal, Mohankumar and Premkumar of Salem and that he has entered into sale agreement with them for alienating the Petition mentioned properties. Definite allegations have been made in the Counter filed by the Respondent/Plaintiff stating that the Defendant is making hectic arrangements to sell the Petition mentioned properties to one Jayapal, Mohankumar and Premkumar of Salem and that he has entered into sale agreement with them for alienating the Petition mentioned properties. Satisfying with the reasons stated in the Counter filed by the Respondent/Plaintiff, the learned Subordinate Judge has ordered attachment before judgment of the Petition mentioned properties. The Defendant has not made out any sufficient reason for his non-appearance on 25-11-2002 and the reason stated by him is not convincing. 15. The impugned order is assailed on the ground that it is cryptic and a non-speaking order. The Application was dismissed by the trial Court by the brief order stating that there is no document showing that the Defendant was bedridden. The learned Subordinate Judge has also observed that the reasons stated in the Petition is the lame excuse and that there is no merits in the Application. The impugned order though a brief one, does not suffer from any irregularity or error apparent on the face of the record warranting interference exercising the power under Article 227 of the Constitution of India. This Revision has no merits and is bound to fail. 16. For the reasons stated above, the order of the Subordinate Judge, Sankari, made in I.A.No. 765 of 2002 in I.A.No. 527 of 2002 in O.S.No. 164 of 2002 dated 19-06-2003, is confirmed and this Revision Petition is dismissed. Consequently, the connected C.M.P.No. 18472 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. The learned Subordinate Judge, is directed to expedite the trial in O.S.No. 164 of 2002 and dispose of the same expeditiously, in accordance with law.