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2007 DIGILAW 1982 (MAD)

K. M. Palanisamy v. P. Sengottaiyan

2007-07-02

S.ASHOK KUMAR

body2007
Judgment : 1. Aggrieved over the fair and decreetal order of the Subordinate Judges Court at Bhavani dated 4. 2007 in I.A. No.45 of 2007 in O.S. No.84 of 2005, this Civil Revision Petition is filed. 2. Brief facts of the case are as follows: The petitioner is the defendant in O.S. No.84 of 2005 pending on the file of the Subordinate Judge, Bhavani, filed by the respondent herein. The petitioner has filed an Application I.A. No.85 of 2007 under Order 9, Rule 7, C.P.C. to set aside the ex parte order dated 21. 2007 and decide the Suit on merits. It was contested by the respondent by filing a counter affidavit. 3. After contest the learned Subordinate Judge, Bhavani passed an order directing the petitioner to deposit Rs.50,000/- into Court deposit on or before 6. 2007. 4. Aggrieved by the said order, this Civil Revision Petition is filed. 5. The learned counsel appearing for the petitioner would contend that it was only the first occasion on which the petitioner was set ex parte and within ten days there from he sought for setting aside the ex parte order, that the order directing the petitioner to deposit Rs.50,000/- is very harsh and draconian. The learned counsel appearing for the petitioner would also contend that the Honble Supreme Court has categorically held that there is no power to impose conditions at the stage of deciding an Application under Order 9, Rule 7 of the Code of Civil Procedure and he has also pressed into service judgments in support of his contention which are as follows: 1. G.L. Vijain v. K. Shankar, 2007 (1) TNLJ 619 (Civil) (SC) 2. Kumud Lata Das v. Indu Prasad, 1996 (11) SCC 195 : AIR 1997 SC 34 (Three Honble Judges) 3. 1994 (1) ALT 410 4. AIR 1987 Cal. 197 (Division Bench) 5. Vijay Kumar Madan and others v. R.N. Gupta Technical Education Society and others, 2002 (3) CTC 359: 2002 (5) SCC 30 : AIR 2002 SC 2082 6. The allegation against the petitioner is that he borrowed money from the respondent based on a promissory note for a sum of Rs.1,25,000/-with interest at the rate of 12% per annum to meet his urgent family expenses. The Suit has been filed after serving notice on the petitioner. The Suit was posted for cross-examination of P.W.1. The allegation against the petitioner is that he borrowed money from the respondent based on a promissory note for a sum of Rs.1,25,000/-with interest at the rate of 12% per annum to meet his urgent family expenses. The Suit has been filed after serving notice on the petitioner. The Suit was posted for cross-examination of P.W.1. At that stage the petitioner was set ex parte which shows that the petitioner is dragging on the proceedings. Even though the lower Court specifically did not assign any reason, it has allowed the Application by passing a conditional order directing the petitioner to deposit Rs.50,000/- into Court on or before 6. 2007. 7. Admittedly, the very Order 9, Rule 7 of the Code of Civil Procedure empowers the Court to impose conditions as provided in the expression "upon such terms as Court directs as to costs or otherwise" to ensure orderly conduct of the proceedings and to avoid dilatoriness calculated merely to prolong the litigation. 8. The facts of the cases relied upon by the learned counsel for the revision petitioner and the case on hand are entirely different. This is a money Suit. Further, the condition imposed in the present case is only to deposit Rs.50,000/-out of the total money claim of Rs.1,25,000/- with interest at the rate of 12% p.a., from the date of execution of the pro-note that is 9. 2002, which is in my opinion is reasonable and justifiable. Therefore, the condition imposed cannot be termed either as onerous or as prejudging the controversy involved in the Suit. In other words, the condition imposed by the Trial Court will not influence while deciding the case on merits. 9. Therefore, I do not find any reason to interfere with the order of the lower Court. 10. In the result this Civil Revision Petition is dismissed. No costs. Consequently the connected M.P. No.2 of 2007 is also dismissed. However the petitioner shall deposit the said amount within a period of three weeks from the date of the receipt of a copy of this order.