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2006 DIGILAW 2300 (MAD)

Mathayammal & Another v. Muthusamy Gounder

2006-09-05

P.K.MISRA

body2006
Judgment :- (Civil Revision Petition under Article 227 of the constitution of India against the order dated 24.08.2005 in I.A.No.316 of 2005 in O.S.No.73 of 2002 on the file of District Munsif cum Judicial Magistrate, Kodumudi.) This civil revision is preferred against the rejection of petition filed to condone the delay of 595 days in preferring the petition to set aside the ex-parte decree. 2. The respondent/plaintiff filed the suit for recovery of money due on promissory note said to have been executed by Palanisamy, the father of Petitioner No.2/defendant No.2 and the husband of petitioner No.1/defendant No.1. Since the petitioners remained absent on 22.10.2003, an ex-parte decree was passed. It is alleged that after coming to know about the ex-parte decree on 20.04.2005, the petitioners filed the petition to set aside the ex-parte decree along with the condone delay petition. 3. It is the case of the petitioners/defendants before the court below that, as the 1st petitioner was a rustic villager and the 2nd petitioner was suffering from jaundice, they could not attend the Court on 22.10.2003 and subsequently they came to know that the suit was decreed ex-parte. On the other hand, it is the case of the respondent/plaintiff in his counter that at the instance of the petitioners the suit was posted for cross-examination of P.W.1 on several dates and only due to the absence of the petitioners to cross-examine the respondent/plaintiff, the suit was decreed ex-parte, and moreover, after receipt of the notice in Execution Petition No.22 of 2005, the petitioners have come forward with such application. 4. After considering the rival submissions, the trial court dismissed the petition for condoning the delay, giving rise to the present Revision Petition. 5. Learned counsel appearing for the petitioner contended that the question of condonation of delay is ordinarily expected to be considered liberally so as to advance the cause of substantial justice. It has been submitted by him that there was sufficient materials on record to indicate that the second petitioner, who was looking after the litigation, was not in a position to attend the court. It is further submitted that since the petitioners were unaware of the ex-parte decree, the delay in filing the petition under Order IX Rule 13 CPC should have been condoned. The learned counsel for the petitioners submitted that the petitioners should be given an opportunity to contest the suit. It is further submitted that since the petitioners were unaware of the ex-parte decree, the delay in filing the petition under Order IX Rule 13 CPC should have been condoned. The learned counsel for the petitioners submitted that the petitioners should be given an opportunity to contest the suit. He also indicated that the petitioners are willing to abide by any terms to be imposed by this Court. 6. Learned counsel appearing for the respondent, on the other hand, submitted that there was a long unexplained delay and the discretionary order passed by the court below need not be interfered with. He has further submitted that if the delay is condoned and the ex-parte decree is set aside, the matter is likely to linger further and the plaintiff would suffer unnecessary harassment. He has further submitted that if at all this Court is inclined to allow the petition for condonation of delay and even sets aside the ex-parte decree, sufficient terms and conditions should be imposed and the trial court should be directed to dispose of the suit expeditiously. 7. Having heard the learned counsels for both parties and having examined the materials on record, I feel, interest of justice would be served by directing condonation of delay and also by setting aside the ex-parte decree, subject to certain terms and conditions. It is of course true that the question raised before this Court is to condone the delay. However, since the reasons for condonation of delay are same as the reasons for setting aside the ex-parte decree, no useful purpose would be served by merely condoning the delay and by remitting the matter relating to Order IX Rule 13 CPC for fresh disposal, as adopting such a course is likely to delay the ultimate disposal of the suit. 8. For the aforesaid reasons, the delay in filing the petition to set aside the ex-parte decree is condoned and the ex-parte decree is set aside, subject to the following conditions. (i) The petitioners shall pay a sum of Rs.1,500/- (Rupees one thousand five hundred only) as costs to the Advocate appearing for the respondent/plaintiff within four weeks from the date of receipt of a copy of this order. (i) The petitioners shall pay a sum of Rs.1,500/- (Rupees one thousand five hundred only) as costs to the Advocate appearing for the respondent/plaintiff within four weeks from the date of receipt of a copy of this order. (ii) The petitioners shall deposit 50% of the amount claimed by the plaintiff in the suit before the trial court within the very same period from the date of receipt of a copy of this order. (iii) If the costs as directed is not paid and/or the deposit as directed is not made within the time stipulated, the order passed by the court below shall be deemed to have been confirmed. (iv) The amount deposited as per direction No.(ii) shall be kept in a fixed deposit in any one of the Nationalised Banks for a period of six months, to be renewed from time to time if necessary. (v) On compliance of the aforesaid directions, the suit shall be disposed of within three months from the date of intimation relating to compliance of the order of this Court. 9. Subject to the aforesaid directions and observations, this revision is disposed of. Connected CMP No.18318 of 2005 is closed.