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2007 DIGILAW 301 (MAD)

S. A. Arumugam v. V. Amudha & Others

2007-01-25

R.BANUMATHI

body2007
Judgment :- This revision is directed against the Order passed in C.M.A.No.59/1999 on the file of the Principal District Judge, Erode, dated 27.06.2000, confirming the fair Order made in I.A.No.1656/1998 in O.S.No.552/1989 on the file of the I Additional District Munsif Court, Erode, dated 28.01.1999. The third Defendant is the Revision Petitioner. 2. The first Respondent/Plaintiff filed suit O.S.No.552/1989 for declaration that they are the absolute owners of the suit property and for Permanent Injunction restraining the third Defendant from altering the physical features of Item No.1 of the suit property. The third Defendant is the subsequent purchaser. Defendants 1 and 2 are father-in-law and husband of the first Respondent. 3. After being served with suit summons, the third Defendant engaged a counsel to appear on his behalf in the suit. The third Defendant was set exparte on 27.07.1990. According to the Petitioner, after he engaged counsel, he fell ill and was bed ridden till September, 1997 and he was under medical advice, taking complete rest and he came to know about the exparte Decree only when the Plaintiff approached through an Ex.MLA for settling the matter. In 1997, the Petitioner had filed I.A.No.1656/1997 under Or.9 R.13 CPC to set aside the exparte Decree. 4. The first Respondent/Plaintiff resisted that application. As there was a delay of 2569 days in filing the application to set aside the exparte Decree, the Revision Petitioner filed I.A.No.1470/1997 under Section 5 of the Limitation Act for condoning the delay in filing the application under Or.9 R.13 CPC. That application was allowed on payment of cost of Rs.1,000/-. The first Respondent/Plaintiff has challenged that Order in CRP No.404/1999. The said CRP was dismissed observing that there was no illegality or irregularity in condoning the delay and the said decision is reported in 1999 (3) MLJ 261 (V.Amudha Vs. S.A.Arumugham and others). Thereafter, Or.9, R.13 CPC application was taken up and dismissed by the impugned Order. The only ground for dismissing the application is that the prayer in the Petition is not clear and date of exparte Decree is mistakenly stated as 27.09.1990 instead of 27.07.1990. 5. Heard both. 6. The main ground for dismissal of the application is that the prayer in the Petition is not clear. The prayer in the Petition runs as, "it is prayed that exparte Decree dated 27.09.1990 and the suit be tried on merits". 5. Heard both. 6. The main ground for dismissal of the application is that the prayer in the Petition is not clear. The prayer in the Petition runs as, "it is prayed that exparte Decree dated 27.09.1990 and the suit be tried on merits". The lower Court has dismissed the application finding that the prayer is vague. Due to inadvertence the words i.e. "may be set aside" has been omitted during typing. Likewise, date of exparte Decree is mistakenly stated as 27.09.1990 instead of 27.07.1990. The omission and mistake in the Petition appears to be inadvertent. 7. The only point for consideration is whether there was sufficient cause for nonappearance of the Defendant on the date of hearing. No negligence or deliberate inaction could be attributed to the Revision Petitioner. The Petitioner has engaged a counsel in 1989 to contest the suit. The Petitioner has sufficiently explained the delay stating that he was unwell and could not contact his counsel due to his illness. That explanation was already accepted by the lower Court also. Having purchased the property, the Petitioner does not stand to benefit by leaving the matter exparte. 8. The lower Court has dismissed the application mainly on the grounds – (i)prayer is vague (ii)date of exparte Decree is wrongly stated at 27.09.1990 instead of 27.07.1990. Grounds for dismissal are too technical. Mere mention of wrong date of exparte Decree would not preclude the Court from exercising the discretion under Or.9 R.13 CPC. 9. Where a mistake is committed either in the prayer of the Petition or wrong quoting of the provision, the application is not to be thrown away. Section 151 CPC is an enabling provision by virtue of which inherent powers have been vested with the Court not to feel helpless under such circumstances. But to administer substantial justice, Court can use its inherent power dehors the mistakes in the prayer or wrong quoting of the provisions. Under Section 151 CPC, Court has inherent power to act according to justice, equity and good conscience and make such orders as may be necessary to meet the ends of justice or to prevent the abuse of process of Court. Under Section 151 CPC, Court has inherent power to act according to justice, equity and good conscience and make such orders as may be necessary to meet the ends of justice or to prevent the abuse of process of Court. Though there was no mention of the words "may be set aside" and mistake in the date of exparte Decree, the lower Court ought to have exercised the inherent power under Section 151 CPC to pass appropriate orders to meet the ends of justice. 10. Procedural law must be liberally construed to really sub serve and make it workable to advance ends of justice. Technical objections cannot be allowed to defeat substantial justice. The Court having condoned the delay of 2,569 days in filing the application under Or.9 R.13 CPC, ought to have allowed the application under Or.9 R.13 CPC so as to afford an opportunity to the Revision Petitioner to contest the suit. There is no proper exercise of discretion and the impugned Order is liable to be set aside. 11. In the result, the order passed in C.M.A.No.59/1999 on the file of the Principal District Judge, Erode, dated 27.06.2000, is set aside and this Revision Petition is allowed. The trial Court is directed to afford sufficient opportunity to the Petitioner to file Written Statement and proceed with the matter in accordance with law. The trial Court is directed to dispose of the suit expeditiously. No costs. Consequently, CMP is also closed.