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2008 DIGILAW 898 (MAD)

K. Natesan v. M. A. Srinivasan

2008-03-12

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This revision has been directed against the order passed in I.A.No.39 of 2007 in O.S.No.813 of 2003 on the file of Additional District Judge (Fast Track Court-II) Chennai. The defendant in O.S.No.813 of 2003 had filed the said application in I.A.No.39 of 2007 under Order 9 Rule 13 CPC. As per the affidavit filed along with I.A.No.39 of 2007, O.S.No.813 of 2003 was posted for cross examination of plaintiff and since his counsel was engaged in the High Court in another civil revision petition, he could not be present before the Court on 9. 2007 to cross examine the plaintiff and hence he was set exparte on 9. 2007 and posted for orders on 9. 2007 and thereafter on 19. 2007 on which date the exparte decree has been passed against the defendant and to set aside the order of exparte passed against the defendant on 9. 2007, he had filed I.A.No.39 of 2007. 2. According to the revision petitioner/defendant, even though he was set exparte on 9. 2007, the exparte decree was passed only on 19. 2007 but to set aside the exparte decree dated 19. 2007, he has filed the said application. The plaintiff has resisted the said application by filing his counter contending that not only on 9. 2007, there was no representation for the defendant but also after setting him exparte, the matter was posted for orders on 9. 2007 and thereafter on 19. 2007, there was no representation for the defendant and there was no sufficient explanation for his absence on 19. 2007 was given in the affidavit to set aside the exparte decree. After going through the affidavit to the application and counter filed by the plaintiff/respondent in I.A.No.39 of 2007, the learned Additional District Judge/Fast Track Court NO.II, Chennai, thought it fit to give an opportunity to the defendant to defend his case, had allowed the application on payment of cost of Rs.1,000/-to the plaintiff/respondent on or before 211. 2007. 3. The learned counsel appearing for the revision petitioner would represent that the defendant has not paid the cost on 211. 2007, but on his application, the time was extended and the cost was subsequently deposited with the Court. Against the said order of the learned Additional District Judge/Fast Track Court No.II, Chennai in I.A.No.39 of 2007, the plaintiff in O.S.No.813 of 2003 has preferred this revision. 4. 2007, but on his application, the time was extended and the cost was subsequently deposited with the Court. Against the said order of the learned Additional District Judge/Fast Track Court No.II, Chennai in I.A.No.39 of 2007, the plaintiff in O.S.No.813 of 2003 has preferred this revision. 4. Heard the learned counsel appearing for the revision petitioner. Relying on a decision reported in Rudramani Padhan Vs. State of Orissa (AIR 1981 Orissa 202), the learned counsel appearing for the revision petitioner would contend that since no sufficient reason has been stated in the affidavit for the defendants absent on 9. 2007 and 19. 2007, the exparte decree passed against him cannot be set aside. The short facts of the said ratio is that the plaintiffs in O.S.No.10/9 of 1974/1977 have preferred revision against the order passed in a petition filed by the defendant to set aside the exparte decree. The said suit was posted for hearing on 14. 1978 and since the defendant has failed to appear on the said date of hearing, he was set exparte and exparte trial took place and the Judgment was pronounced on 26. 1978. The defendant filed a petition under Order 9 rule 13 CPC to set aside the exparte decree in MJC No.70 of 1978. The learned Subordinate Judge, after observing that an opportunity must be given to the defendant to defend the case, had allowed the application by exercising his power under Section 151 of CPC. Aggrieved by the said order of the learned Subordinate Judge, the plaintiff has preferred the said Civil revision petition before the High Court of Orissa. While allowing the civil revision petition, it was observed by the learned Judge of Orissa as follows: "In view of the catena of Supreme Court decisions covering the field, there can be no scope for entertaining the view accepted by the learned Single Judge that even when the defendant failed to establish existence of sufficient cause for his non-appearance on the date of trial, he could obtain vacation of the exparte decree passed against him by invoking the inherent powers...... but we make it explicitly clear that Section 151 of the Code is not inviolable when defendant fails to establish existence of sufficient cause for his non-appearance and this being the law, decisions to the contrary cannot be accepted as laying down the correct proposition of law. but we make it explicitly clear that Section 151 of the Code is not inviolable when defendant fails to establish existence of sufficient cause for his non-appearance and this being the law, decisions to the contrary cannot be accepted as laying down the correct proposition of law. On the finding of the learned Subordinate Judge, therefore, there was no scope to set aside the exparte decree". There cannot be two opinion regarding the said settled proposition of law, when there is no acceptable or reasonable explanation given for the non appearance of the petitioner on the date of the trial, the exparte decree cannot be set aside. In the said case, from the facts narrated by the learned Judge in the said Judgment, it is inferred that there was no acceptable reasoning given in the affidavit filed by the petitioner therein for his non appearance on the date of trial. 5. But a reading of the affidavit filed by the defendant in I.A.No.39 of 2007 will go to show that when the suit was posted on 9. 2007 at 10.30 a.m for cross examination of the plaintiff, the junior counsel who was instructed to report to the Court about the non availability of the counsel for the defendant who was engaged in Civil revision petition pending before the High Court could not reach the trial Court to represent the Court in time on 9. 2007 which resulted in an order of exparte against the defendant in the suit. So for the non appearance of the counsel for the defendant to represent the defendant on o9. 2007, there is a reasoning given in the affidavit to the application in I.A.No.39 of 2007 as to the effect that since he was engaged in High Court for another Civil revision petition, he could not reach the Court wherein the trial in O.S.No.813 of 2003 was conducted at 30. a.m., on 9. 2007 and by the time, the counsel could reach the said Court, the defendant was set exparte. This reasoning was accepted by the learned trial Judge but the learned trial Judge thought it fit to award a cost of Rs.1000/- for the non appearance of the learned counsel for the defendant on 9. 2007 to cross examine the plaintiff. 6. 2007 and by the time, the counsel could reach the said Court, the defendant was set exparte. This reasoning was accepted by the learned trial Judge but the learned trial Judge thought it fit to award a cost of Rs.1000/- for the non appearance of the learned counsel for the defendant on 9. 2007 to cross examine the plaintiff. 6. The learned counsel appearing for the revision petitioner would contend that there was no reasoning given in the affidavit to the defendant for the petitioners non appearance either on 9. 2007 or on 19. 2007.Since the petitioner has given reasoning for his counsels non appearance on 9. 2007 on which date the defendant was set exparte, I am of the view that the dictum Rudramani Padhan Vs. State of Orissa (AIR 1981 Orissa 202), will not be applicable to the present facts of the case. In this connection, the facts of the case also will have some relevance. The suit was filed under Order 37 CPC, leave to defend the suit was ordered by this Court in C.R.P.(NPD) No.2903 of 2005. This Court has directed the defendant to deposit the entire suit amount before the trial Court. Accordingly, the defendant had deposited the entire suit amount before the trial Court and has also filed a written statement. Under such circumstances, in the interest of justice, I am of the view that an opportunity must be given to the defendant to defend his case. Under such circumstances, I do not find any reason to interfere with the orders of the learned Additional District Judge/Fast Track Court NO.II, Chennai in I.A.No.39 of 2007 in O.S.No.813 of 2003. 7 In fine, the Civil revision petition is dismissed. The order passed by the learned Additional District Judge/Fast Track Court No.II, Chennai in I.A.No.39 of 2007 in O.S.No.813 of 2003 is confirmed and O.S.No.813 o 2003 is ordered to be restored to the file of the learned Additional District Judge/Fast Track Court No.II, Chennai. P.W.1 is directed to be present on 4. 2008. On that date, the defendant shall cross examine P.W.1 failing which the civil revision petition shall deem to have been allowed. Counsels on both sides are requested to co-operate with the learned trial Judge to dispose of O.S.No.813 of 2003 within a period of two months from the date of receipt of a copy of this order. No costs. 2008. On that date, the defendant shall cross examine P.W.1 failing which the civil revision petition shall deem to have been allowed. Counsels on both sides are requested to co-operate with the learned trial Judge to dispose of O.S.No.813 of 2003 within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed. The learned counsel appearing for the revision petitioner is entitled to withdraw the cost of Rs.1000/-, which is in Court deposit in the credit of O.S.No.813 of 2003 on the file of the Fast Track Court-II, Chennai, without furnishing any security.