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2007 DIGILAW 390 (MAD)

V. Ramesh v. G. Vengaivel & Others

2007-01-31

R.BANUMATHI

body2007
Judgment :- This Revision Petition is directed against the orders of Courts below dismissing the Application filed under Order IX Rule 13 C.P.C to set aside the exparte Decree passed on 22.06.2000 in O.S.No.2233 of 1995 on the file of XVI Assistant Judge, City Civil Court, Chennai. The Third Defendant is the Revision Petitioner. 2. Factual background in brief is as follows:- The Plaintiff – G. Govindaswamy is the owner of the Suit Property. Alleging that the Second Defendant – Damodaran played trick on him and obtained a Power of Attorney empowering him to sell his Property and in pursuance of that the Second Defendant had sold the property to the Third Defendant, the Plaintiff has filed O.S.No.2233 of 1995 on the file of City Civil Court, Chennai for Declaration that the said Document – Power of Attorney is invalid and also for Permanent Injunction against the Defendants. 3. The First Defendant remained exparte. Defendants 2 and 3 filed a Written Statement contesting the Suit. The case was posted in the Special List on 10.01.2000. The Plaintiff was examined as P.W.1. The case was adjourned to various dates for cross-examination of P.W.1 either at the request of the Revision Petitioner or since there was no representation on behalf of the Revision Petitioner. Finally, the case was adjourned to 22.06.2000 for cross-examination of P.W.1. On 22.06.2000, the Plaintiff was present. Since there was no representation for the Revision Petitioner, the case was passed over upto 03.50 p.m and since then, there was no representation for the Revision Petitioner. Hence, the Suit was decreed exparte. 4. The Revision Petitioner filed an Application under O.9 R.13 C.P.C in I.A.No.14321 of 2001 within the stipulated period on 12.07.2000 to set aside the exparte decree passed on 22.06.2000 in O.S.No.2233 of 1995. Finding that the Revision Petitioner has not shown sufficient cause for his non-appearance on 22.06.2000, the Trial Court dismissed the Application. As against the order of dismissal, the Petitioner has preferred C.M.A.No.148 of 2003 before the City Civil Court, Chennai. Observing that there is no bonafide intention in pursuing the matter, the learned Appellate Judge dismissed the Appeal. 5. Finding that the Revision Petitioner has not shown sufficient cause for his non-appearance on 22.06.2000, the Trial Court dismissed the Application. As against the order of dismissal, the Petitioner has preferred C.M.A.No.148 of 2003 before the City Civil Court, Chennai. Observing that there is no bonafide intention in pursuing the matter, the learned Appellate Judge dismissed the Appeal. 5. Assailing the concurrent orders of the Courts below, learned Senior Counsel Mr.K.V.Venkatapathy has submitted that if exparte decree is allowed to stand, the Power of Attorney in favour of the Second Defendant would stand invalidated affecting the Sale Deed in favour of the Revision Petitioner, which would cause serious prejudice to the Revision Petitioner. Contending that the Application was filed within the stipulated time and the Petitioner has also shown sufficient cause, learned Senior Counsel urged that the Courts below ought to have liberally construed the matter, so as to afford an opportunity to the Petitioner to contest the Suit. Learned Senior Counsel placed reliance upon the decision reported in 2000 (3) S.C.C. 54 . 6. Drawing the attention of the Court to various dates of hearing, learned counsel for the Respondent / Plaintiff has submitted that inspite of several adjournments, the Revision Petitioner has not appeared before the Court and there was no bonafide intention in getting along with the matter and the Courts below have rightly dismissed the Application. 7. On 10.01.2000, the Suit came up in the Special List. Chief-examination of P.W.1 was over on 10.04.2000 and the case was adjourned to 24.04.2000 for his cross-examination. Again, the matter was adjourned to 07.06.2000, 09.06.2000 and 14.06.2000 on which dates, there was no representation on behalf of the Petitioner. The matter was adjourned to 22.06.2000 on which date also, there was no representation for the Revision Petitioner. Hence, exparte decree was passed. In the supporting Affidavit, the Revision Petitioner has stated that "due to unavoidable circumstances, he was to be away from Madras to attend some ceremony and he has deputed somebody to represent in the Court on his behalf and that his representative reached the Court very late and exparte decree was passed". Pointing out the number of hearing dates and that the matter was passed over upto 03.50 p.m., on 22.06.2000, learned Appellate Judge found that the Revision Petitioner has not shown sufficient cause for his absence on 22.06.2000. Pointing out the number of hearing dates and that the matter was passed over upto 03.50 p.m., on 22.06.2000, learned Appellate Judge found that the Revision Petitioner has not shown sufficient cause for his absence on 22.06.2000. Learned Appellate Judge also observed that inspite of several hearings and repeated opportunity, the Revision Petitioner was not present in Court to cross-examine P.W.1. 8. It is well settled that the words "sufficient cause" have got to be construed with regard to the facts and circumstances of each case. "What is" or "what is not" sufficient cause for non-appearance is a question of fact depending upon varied and special circumstances of each case. The words "sufficient cause" are to be liberally construed. For setting aside the exparte decree passed, the Defendant has to only show cause for his absence on the day when the exparte decree was passed. The Defendant is not required to show cause for his absence on all previous dates of hearing though the conduct may be a relevant factor to be taken note of. 9. No doubt, the case was adjourned to a couple of hearings for cross-examination of P.W.1 and there was no representation on behalf of the Petitioner. There seems to be some lapse on the part of the Revision Petitioner. But, on the whole, he cannot be castigated as an irresponsible litigant. The Revision Petitioner – Third Defendant is said to have purchased the property pursuant to a Power Deed, which is challenged by the Plaintiff. Revision Petitioner / Third Defendant does not stand to benefit by not contesting the matter. On the other hand, if exparte decree is not set aside, the Revision Petitioner would be subjected to hardship, being deprived of opportunity of contesting the Suit. 10. Holding that expression in O.9 R.13 C.P.C "was prevented by any sufficient cause from appearing" must be liberally construed where defence is reasonable and the Defendant has filed the Application within the statutory period, in the decision reported in G.P. Srivastava ..Vs. 10. Holding that expression in O.9 R.13 C.P.C "was prevented by any sufficient cause from appearing" must be liberally construed where defence is reasonable and the Defendant has filed the Application within the statutory period, in the decision reported in G.P. Srivastava ..Vs. R.K. Raizada and others ( 2000 (3) S.C.C. 54 ), the Supreme Court has held as follows:- "...Under Order 9 Rule 13 C.P.C an exparte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the Defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for nonappearance of the defendant in the case on the date of hearing, the court has no power to set aside an exparte decree. The words "was presented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for nonappearance refers to the date on which the absence was made a ground for proceeding exparte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when exparte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits..." 11. In the present case also, the Defendant has approached the Court immediately and within the statutory time specified. His absence is neither malafide nor intentional. Dismissing the Application, the Courts below have shut the door to the Petitioner to contest the matter. In the present case also, the Defendant has approached the Court immediately and within the statutory time specified. His absence is neither malafide nor intentional. Dismissing the Application, the Courts below have shut the door to the Petitioner to contest the matter. Since there is no proper exercise of discretion, the Impugned Orders of the Courts below cannot be sustained. Since the Suit is of the year 1995 and the Application under O.9 R.13 C.P.C has been filed in 2001, the other side can be compensated by imposing adequate costs of Rs.2,500/-. 12. For the foregoing reasons, this Civil Revision Petition is allowed and the Judgment dated 07.04.2004 of the First Additional Judge, City Civil Court, Chennai in C.M.A.No.148 of 2003 is set aside, on payment of costs of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) by the Revision Petitioner to the Respondents within a period of two weeks from the date of this order. The Trial Court is directed to afford opportunity to the Revision Petitioner / Third Defendant and proceed with the matter in accordance with law. The connected C.M.P.No.3588 of 2005 is closed.