Judgment :- 1. Disgruntled with the judgment passed by the lower appellate Court, namely, Subordinate Judge, Panruti, in C.M.A.No.9 of 2003, confirming the order passed by the trial Court in dismissing the application to set aside the ex parte decree, the petitioner has filed this Civil Revision Petition. 2. Originally, the respondent filed a suit for partition and separate possession. Since the petitioner remained absent, the trial Court passed the ex parte decree on 012. 1996. Firstly, I.A.No.269 of 1997 was filed by the petitioner to set aside the ex parte decree dated 012. 1996 and the same was allowed by consent on 06.04.1999 and the case was adjourned to 13.04.1999 for cross-examination of P.W.1, which was not done by the petitioner till 14.06.1999, resulting in passing of the exparte decree for the second time on 14.06.1999. Thereafter, the second application in I.A.No.822 of 1999 was filed to set aside the said ex parte decree dated 14.06.1999 and that too was allowed on consent on 12.06.2000. Even thereafter, P.W.1 was not cross-examined by the petitioner/defendant. Therefore, for the third time, the ex parte decree was passed on 05.09.2000. Thereafter, the third application in I.A.No.846 of 2000 was filed to set aside the ex parte decree dated 05.09.2000 and the said application was also allowed on condition to deposit a sum of Rs.2,000/-by an order dated 11.06.2001. On the deposit of Rs.2,000/-, the ex parte decree was set aside and the matter was listed on 03.09.2001, pursuant to which the respondent/plaintiff was examined afresh and the petitioner took adjournments for cross-examination till 27.09.2001 and thereafter failed to cross examine the respondent by not attending the Court. Therefore, the ex parte decree was passed on the same day. The impugned application was filed for the fourth time to set aside the said ex parte decree dated 27.09.2001 only to drag on the proceedings with a view to delay the partition of the suit properties. 3. Thus, the petitioner allowed the matter to be decided ex parte for four times between 1996 and 2001. The first respondent, who filed the suit for partition, is no more, as he died during the pendency of the appeal before the lower appellate Court and his legal heirs were brought on record. Though the petitioner claimed that he was suffering from jaundice on 27.09.2001, he had not filed any proof for the same. 4.
The first respondent, who filed the suit for partition, is no more, as he died during the pendency of the appeal before the lower appellate Court and his legal heirs were brought on record. Though the petitioner claimed that he was suffering from jaundice on 27.09.2001, he had not filed any proof for the same. 4. Learned counsel for the petitioner would contend that the Courts have ample power to condone the absence when there is a sufficient cause and though the petitioner has explained his absence was due to illness, the same has not been properly looked into by the Courts below and, therefore, this Court has to look into the matter under revisional jurisdiction. In support of his contention, the learned counsel has relied upon the decision in Kuppammal (died) and Others v. S.V. Kandasami, 2001 (2) L.W.662, wherein it has been held as under: "10. The words "sufficient cause" are nowhere defined in the Civil Procedure Code, which suggests, it has got to be construed with regard to the facts and circumstances of each case. In the Law Lexicon by S. Ramanatha Aiyar, 1997 Edition, the various possible explanations are given as follows: "sufficient cause" implies the presence of legal and adequate reason. The word "sufficient" means "adequate", "enough", "as much as may be necessary to answer the purpose intended". It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from reasonable standard of practical and cautions men." 5. Per contra, learned counsel for the respondents would submit that sufficient cause was not shown by the petitioner for his repeated absence for four times on the dates of passing the ex parte decree and taking into account the continuous default of the petitioner and in the absence of any proof to show the illness, the Courts below had rightly non-suited the petitioner. To substantiate his case, the learned counsel would cite the decision in Kathavelu v. Murugesan, (2001 (2) M.L.J.802), in which it has been held thus: "12. In the decision relied on by the respondent in Smt. Benibai v. Smt. Champabai, (A.I.R.1996 M.P.243), the Madhya Pradesh High Court held that though an application under O.9, Rule 13 C.P.C. cannot be allowed on humanitarian grounds, the Court should not close their eyes to the realities of the case.
In the decision relied on by the respondent in Smt. Benibai v. Smt. Champabai, (A.I.R.1996 M.P.243), the Madhya Pradesh High Court held that though an application under O.9, Rule 13 C.P.C. cannot be allowed on humanitarian grounds, the Court should not close their eyes to the realities of the case. The reality in this case is a sharp litigant who thinks he can play ducks and drakes with the Court. So he shall have his comeuppance. The decision reported in K.R. Chinnathambi Gounder v. Bhanumathy, (1998) 2 L.W.271), is applicable to this case. "Even assuming that on the date of the ex parte order, he was not able to be present before the Court due to illness, there is no reason as to why he did not pursue the matter for about five years. The act of the petitioner in filing the application belatedly would show that he is only interested in dragging on the proceedings, which should not be allowed by the Court." 6. In G.P. Srivastava v. R.K. Raizada, (2000 (3) Supreme Court Cases 54), the Apex Court has held that under Order 9 Rule 13 C.P.C., an ex parte 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 non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented 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 ex parte and cannot be stretched to rely upon other circumstances anterior in time.
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 ex parte 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 ex parte proceedings were initiated against him, he cannot be penalized 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 mala fide or intentional. 7. Though the learned counsel for the petitioner has placed reliance upon the decision of a Division Bench of this Court in Kuppammals case, referred above, which was decided following a decision of the Supreme Court in G.P. Srivastavas case, in support of his case, the said decision is not applicable to the present case, as, in the said case, sufficient cause was shown for non-appearance by producing a medical certificate, stating that the petitioner was ailing from vertigo. Even in G.P. Srivastavas case, it was as undisputed fact that the nephew of the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. Further, in those cases, the issue was raised only once before the trial Court and taken on appeal on dismissal and, ultimately, the ex parte decree was set aside subject to payment of costs to the other side. 8. However, in the present case, the issue was raised quadruple before the trial Court and though the ex parte decree was set aside thrice, the petitioner did not take steps to prosecute the matter and, instead, came on dragging on the matter for over a decade. In addition, no proof was also filed by the petitioner to show that he was suffering from jaundice. The decision cited by the learned counsel for the respondents in Kathavelus case, cited supra, which was decided following the decision reported in K.R. Chinnathambi Gounder v. Bhanumathy, (1998 (2) L.W.271), is quite applicable to the present case.
In addition, no proof was also filed by the petitioner to show that he was suffering from jaundice. The decision cited by the learned counsel for the respondents in Kathavelus case, cited supra, which was decided following the decision reported in K.R. Chinnathambi Gounder v. Bhanumathy, (1998 (2) L.W.271), is quite applicable to the present case. Even assuming that on the date of the ex parte decree the petitioner was not able to be present before the Court due to illness, it is not known why he did not pursue the matter though the applications to set aside the ex parte decree were allowed thrice. It was unfair for the petitioner to file the application for the fourth time and seek for setting aside the ex parte decree. Such a practice on the part of the petitioner is to be highly remonstrated. 9. Filing an application under Order 9 Rule 13 of C.P.C. for the fourth time in a single case is nothing but a clear abuse of process of Court and law, which provision, in fact, is not meant for that purpose. The suit was filed in the year 1992 and dragged on till date without any valid reasons. Finally, the respondent/plaintiff lost his life without enjoying his share of properties. Therefore, both the trial Court and the lower appellate Court have passed well considered order and judgment respectively, which, in the considered opinion of this Court, do not warrant any interference. 10. For all the foregoing reasons, this Civil Revision Petition is dismissed with costs. Consequently, the connected M.P.No.1 of 2008 is also dismissed.