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2008 DIGILAW 3862 (MAD)

P. Krishnammal & Another v. M. Rajeswari

2008-10-23

M.VENUGOPAL

body2008
Judgment :- The revision petitioners/defendants 1 and 2 have projected this revision petition aggrieved against the order passed in I.A.No.521 of 2007 in O.S.No. 90 of 2006 dated 13. 2008 by the learned Subordinate Judge, Mettur in dismissing the application filed under Order 9 Rule 7 of CPC. 2. The trial Court while passing an order in I.A.No.521 of 2007 in O.S.No.90 of 2006 has come to the conclusion to the effect that even though the suit summons was served on 1. 2007 itself, from Ex A1 and A2, it is clear that this petitioners have applied for registration copies only on 8. 2007 ie., long after passing of the exparte order ie., 3. 2007. So the reason assigned for not filing the written statement on 3. 2007 is also not acceptable. Hence no merits in the said application and resultantly has dismissed the application. 3. The grievance of the revision petitioners/defendants 1 and 2 is that the order setting aside the petition exparte at the threshold itself is a draconian one and that when the cause of substantial justice and technical consideration are pitted against each other, the former should be preferred and the trial Court has not looked into this aspect and has passed an erroneous order which needs to be set aside in furtherance of substantial cause of justice and therefore prays for allowing this revision petition. 4. The revision petitioners/defendants 1 and 2 in I.A.No.521 of 2007 in O.S.No.90 of 2006 has taken a plea that they could not receive the documents which are very essential to decide the dispute in time and that documents have been traced out now only which were relevant to prepare written statement and therefore could not file the written statement and resultantly, the Court was pleased to pass an order of exparte against them and that the non filing of the written statement has been neither wilful nor wanton due to the aforesaid reasons. 5. 5. The respondent/plaintiff in her counter has inter alia averred that the application is not maintainable and it is not correct to say that the revision petitioners/ defendants have traced out the documents which are relevant to prepare the written statement from some other places and in the petitioners house and that there is no valid reason assigned in the affidavit to set aside the exparte order and that the petitioners have approached this Court with uncleaned hands and they have violated the principles of law and mandatory provisions of CPC etc., and therefore has prayed for dismissal of the petition. 6. The learned counsel for the respondent cites the decision of this Court in N. Ramanathan-v-Meenakshisundaram (2001(4)CTC 8) whereby it is held that Exparte order should be set aside on costs even if defendants failed to substantiate reasons for non appearance in Court and it would be in accordance with principles of natural justice. It cannot be gainsaid that refusing to set aside the exparte order can result in a meritorious matters being thrown out from threshold and cause of justice being defeated. As against this, when the application to set aside the exparte order passed by the trial Court is allowed, maximum that could happened is that the cause would be decided on merits after hearing the parties. No wonder when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non deliberate delay. As a matter of fact, it is to be noted that judiciary is respected not on account of its power to legalize injustice on technicalities because it is capable of removing injustice and is expected to do so. 7. In view of the detailed discussion mentioned supra and taking a liberal view, this Court is of the view that the order passed by the trial Court in dismissing the application in I.A.No.521 of 2007 in O.S.No.90 of 2006 needs to be set aside and accordingly the same is set aside in the interest of justice. 8. In fine, this civil revision petition is allowed and the order passed in I.A.No.521 of 2007 in O.S.No.90 of 2006 on the file of Sub Court, Mettur is set aside. 8. In fine, this civil revision petition is allowed and the order passed in I.A.No.521 of 2007 in O.S.No.90 of 2006 on the file of Sub Court, Mettur is set aside. However, the revision petitioners/ defendants are directed to pay a sum of Rs.1000/-(Rupees one Thousand only) towards cost to the learned counsel for the respondent/plaintiff. The trial Court is directed to receive/take the written statement on its file and to proceed further in the suit proceedings. Consequently connected M.P.No. 1 of 2008 is closed.