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2005 DIGILAW 718 (MAD)

Myla Belli and others v. B. Rajagopal

2005-04-21

A.KULASEKARAN

body2005
ORDER: The defendants 2, 3 and 4 in O.S.No.12 of 2000 are the revision petitioners herein. The suit was filed by the plaintiff/respondent herein for declaration and for permanent injunction. Except the revision petitioners herein others contested the suit. The revision petitioners were set ex parte by the trial Court on 25.9.2002. Later the suit was decreed on 22.4.2003 against all the eight defendants on merits. It is stated by the petitioners that after receipt of notice in E.P.No.110 of 2003 in O.S. No.12 of 2000, they came to know that they were set ex parte. 2. On 23.11.2003, the petitioners herein filed a petition to set aside the ex parte decree along with a petition to condone the delay of 425 days in filing the application to set aside the ex parte decree. The trial Court dismissed the said petition filed under Sec.5 of the Limitation Act, on the ground that the suit itself was decreed as early as 24.2.2003 and hence, the petition to set aside the ex parte decree is not maintainable and the reasons assigned for condoning the inordinate delay of 425 days are not valid. Hence, the present revision. 3. Heard the learned counsel appearing for either side. Hence, the present revision. 3. Heard the learned counsel appearing for either side. O.9, Rule 13 of Civil Procedure Code contemplates that: "In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit; and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation: Where there has been an appeal as against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." 4. Now, we look into the provisions of Sec.5 of the Limitation Act, which runs as follows: "Extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of O.21 of the Code of Civil Procedure, 1908 (V of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." 5. The above said provisions of O.9, Rule 13 makes it clear that a defendant, who sought to set aside the ex parte decree passed against him must satisfy the Court by assigning valid reasons and approach the Court in time. The above said provisions of O.9, Rule 13 makes it clear that a defendant, who sought to set aside the ex parte decree passed against him must satisfy the Court by assigning valid reasons and approach the Court in time. Under Sec.5 of the Limitation Act, the application may be admitted after the prescribed period, if the applicant satisfies the Court that he had sufficient cause for not making the application within such period. 6. In this case, the revision petitioners were set ex parte on 25.9.2002 and thereafter, the suit was decreed on 22.4.2003 as against all the defendants and the respondent herein also filed E.P. No.110 of 2003 as early as 2003. Thereafter, the petitioners have filed the application to condone the delay as well as to set aside the ex parte decree only on 23.11.2003. 7. I have carefully perused the affidavit filed by the revision petitioners. The revision petitioners are three in number, in which the first petitioner is the father and two others are sons who were arrayed as defendants 2 to 4 in the suit. The learned counsel appearing for the revision petitioners Mr.Srinath Sridevan submitted that the first revision petitioner is aged 75 years and above and the second revision petitioner was looking after the cases and the family and his wife had undergone operation in August ‘1998’ and again she fell ill, hence he was forced to stay at Mettupalayam between 1st week of September, 2002 and middle of January, 2003 and he was unable to follow up the case and that was the reason for non-appearance and delay in filing the petition to set aside the ex parte decree. 8. On a careful perusal of the affidavit, it is seen that the petitioners have not even mentioned when the E.P. notices were served on them. It is alleged by the second petitioner in the affidavit that he could get the Court notice served upon his father and brother only on 22.11.2003. The said statement shows that the petitioners have received Court notices in E.P. much prior to 22.11.2003 but not prepared to disclose the date of service. It is also not explained as to what was the action taken by the first and third petitioners herein after the E.P. notice was served on them. The said statement shows that the petitioners have received Court notices in E.P. much prior to 22.11.2003 but not prepared to disclose the date of service. It is also not explained as to what was the action taken by the first and third petitioners herein after the E.P. notice was served on them. As already pointed out, the suit was decreed on 22.4.2003 as against the other eight defendants on merits. 9. It is alleged by the petitioners that the second petitioner, who was in-charge of the case was not available in station between first week of September, 2002 and middle of January, 2003. The trial Court pointed out that the said period is also not supported by either oral or documentary evidence. It is well settled that every day’s delay should be explained. 10. A cause arising from the negligence of the party cannot be said to be beyond the control of the party and cannot be a sufficient cause. The expression ‘sufficient cause’ is not defined but it must mean a cause which is beyond the control of the party invoking the aid of Sec.5 of the limitation Act. Even if sufficient cause is shown, the applicant is not entitled to the consideration as a matter of right. Followed Ramlal and others v.Rewa Coalfields Limited, A.I.R.1962 S.C. 361:(1961)2 S.C.J. 556: (1961)2 M.L.J.( S.C.) 131: (1961)2 An.W.R. .(S.C.) 131. 11. The existence of sufficient cause is a condition precedent for the exercise of discretion under Sec.5 of the Limitation Act. No doubt that “sufficient cause should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party” as held by the Honourable Supreme Court in the decision State of West Bengal v. The Administration, Howrah Municipality, A.I.R. 1972 SC 749: (1972) 2 S.C.J. 42. 12. In the case on hand, no sufficient cause is found. While dealing with an application under Sec.5 of the Limitation Act, the Court ought not to light-heartedly disturb the legal right accruing to the opponent by the applicant’s failure in filing application in time. 13. The petitioners herein are some of the defendants in the suit. The other eight defendants contested the suit and on merits the suit was decreed against them. 13. The petitioners herein are some of the defendants in the suit. The other eight defendants contested the suit and on merits the suit was decreed against them. The trial Court dismissed the application under Sec.5 of the Limitation Act filed by the petitioners herein on several grounds. One of the grounds for dismissal is that the application to set aside the ex parte decree is not maintainable. Regarding the dispute over the maintainability is concerned, the decree passed by the trial Court is to be noted carefully. 14. If there is any difficulty in deciding whether the decree is passed on merits or ex parte or whether the remedy under O.9 is lost or not, what is necessary to be seen is at the first instance, the Court has to resort to the explanation of Rule 2 to O.17. Where after evidence of plaintiff and defendant was closed the suit was called for final hearing and on that day the defendant remained absent and the Court passed a decree in which there is not even any indication as to what evidence was evaluated and/or whether the merits were tested, it could not be said that the suit was decided on merits as per the explanation to Rule 2 of O.17. So long as the suit is not decided on merits, the application under O.9, Rule 13 is maintainable. Followed Janaki Ramaiah Chetty v. A.K.Parthasarathy and others, A.I.R. 2003 S.C. 3527. 15. When applying the said test to the facts of the case on hand, the trial Court has passed an ex parte decree against the petitioners herein, hence, the application to set aside the ex parte decree under O.9, Rule 13 is maintainable. The finding of the trial Court to the extent that ‘the application under O.9, Rule 13 is not maintainable’ is set aside. 16. Though the said finding of the trial Court is set aside, this Court is unable to grant the remedy sought for in this revision petition to the petitioners for the reasons that the petitioners have not even furnished details regarding the date of receipt of notices in the execution proceedings to lay a ground for establishing sufficient cause. No sufficient cause beyond the control of the petitioners is stated by them. No sufficient cause beyond the control of the petitioners is stated by them. The existence of sufficient cause as a condition precedent for exercise of discretion under Sec.5 of the Limitation Act, which is not found in this case. The legal right accrued to the plaintiff/ respondent herein by the petitioners’failure in filing the application in time to set aside the ex parte decree cannot be disturbed at this length of time. 17. In view of the above discussions, the revision petition is dismissed. No costs. Consequently, connected C.M.P. No.19918 of 2004 is closed.