Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 2993 (MAD)

Asankhan v. Manickam

2008-08-19

S.TAMILVANAN

body2008
Judgment :- This Civil Revision Petition has been filed against the order, dated 22.01.2007 made in I.A.No.608 of 2006 in O.S.No.304 of 2004 on the file of the District Munsif Court, Sirkali. 2. It is an admitted fact that the revision petitioner / defendant suffered a money decree in the suit in O.S.No.304 of 2004 and he filed an application under Order IX Rule 13 CPC to set aside the exparte decree along with the application under Section 5 of the Limitation Act to condone the delay of 132 days. The revision petitioner has assigned the reason in the accompanying affidavit that he was a patient suffering from kidney transplantation and he was in need of medical investigation and health care and that is why, he could not appear before the court below and that the exparte decree was passed and there had been a delay of 132 days. 3. Mr.G.Ethirajulu, learned counsel appearing for the revision petitioner submitted that the delay was neither wilful nor wanton and that due to the health condition, the petitioner could not appear before the trial court. 4. Per contra, Mr.A.Muthukumar, learned counsel appearing for the respondent submitted that already due to the non-appearance of the revision petitioner, exparte decree was passed by the court below and subsequently, on the application filed by the revision petitioner under Order IX Rule 13 CPC, the exparte order was set aside. Again the revision petitioner remained absent and the suit was decreed, based on the evidence adduced by P.W.1 and the documents marked before the trial court. Pursuant to the decree, now E.P is also pending. 5. It is not in dispute that the revision petitioner is the Government servant working in the Treasury Department and he is facing attachment of salary. It is an admitted fact that the respondent is continuing his service as a Government servant, otherwise his salary could not have been attached. In such circumstances, the submission made by the learned counsel appearing for the revision petitioner to condone the delay and to set aside the exparte decree as second time cannot be accepted as a bonafide reason. There is no pleading or evidence to show that the petitioner was on medical leave for a period of 132 days, specified in the application filed under Section 5 of the Limitation Act. 6. There is no pleading or evidence to show that the petitioner was on medical leave for a period of 132 days, specified in the application filed under Section 5 of the Limitation Act. 6. Admittedly, the suit was filed before the court below, seeking a money decree, based on the promissory note executed by the revision petitioner / defendant. It is seen from the impugned order that when the case had been posted for trial, P.W.1 was examined and the documents were also marked on the side of the respondent / plaintiff. Though the case was posted for various dates for the cross-examination of the aforesaid witness, neither the revision petitioner, nor his counsel was present for cross-examining the plaintiffs witness. 7. The court below has passed a detailed order that there was no acceptable reason to condone the delay. As per the findings of the court below, there was lack of bonafide reason on the part of the revision petitioner for the non-appearance on the date of hearing. 8. Learned counsel appearing for the revision petitioner drew the attention of this court to page number 1 of the typed set. It is a xerox copy of the discharge summary given to the revision petitioner. As contended by the learned counsel appearing for the respondent, that was issued on 04.02.2003. Even as per this certificate, the revision petitioner had been admitted in the hospital only on 08.01.2003 and subsequently, discharged on 04.02.2003, but admittedly, the suit was filed only in the year 2004 and therefore, the supporting document marked by the petitioner would not support the case of the revision petitioner. Further, as there was earlier exparte decree and that was liberally considered by the court below and having allowed the application, the revision petitioner could have contested the case sincerely by cross-examining the witnesses. 9. On the facts and circumstances, I concur the view of the court below that there is no bonafide reason to condone the delay caused by the revision petitioner herein and I could find no error or infirmity in the impugned order passed by the court below. The subsequent conduct of the petitioner shows that he is regularly attending office, however, he has not contested the case, even after the liberal consideration of the court below in a similar application filed earlier. The scope of revision filed under Section 115 CPC is limited. The subsequent conduct of the petitioner shows that he is regularly attending office, however, he has not contested the case, even after the liberal consideration of the court below in a similar application filed earlier. The scope of revision filed under Section 115 CPC is limited. If the court below had exceeded its jurisdiction or fail to exercise its jurisdiction or if there is any illegality or material irregularity, to meet the ends of justice, this Court can interfere with the impugned order passed by the court below. 10. Considering the materials available on record, I am of the view that there is no scope to interfere with the impugned order, under Section 115 of the Code of Civil Procedure and accordingly, the revision petition fails. 11. In the result, this Civil Revision Petition is dismissed. No order as to costs. Consequently, connected miscellaneous petition is also dismissed. As per the order of this Court, dated 23.08.2007, the revision petitioner was ordered to deposit a sum of Rs.10,000/-, if the same is deposited, that can be adjusted towards the decree amount.