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2009 DIGILAW 2721 (MAD)

M. Anandan v. C. Ramalingam

2009-07-28

M.VENUGOPAL

body2009
Judgment : The revision petitioner/petitioner/defendant has projected this civil revision petition as against the order dated 211. 2007 in I.A.No.303 of 2007 in O.S.No.83 of 2006 passed by the learned Principal District Munsif, Ambur, Vellroe District. .2. The trial Court, while passing orders in I.A.No.303 of 2007 in O.S.No.83 of 2006 dated 211. 2007, has observed that out of the suit amount of Rs.17, 760/-, 50% amount will have to be deposited by the revision petitioner within seven days i.e. before 012. 2007 and further on the same day, the revision petitioner should file written statement and failure to do so will entail in dismissal of the application. In effect, the trial Court has passed a conditional order. 3. This Court, on 27. 2009 in the above civil revision petition, has passed an order of interim stay subject to the condition that the revision petitioner deposits 50% of the amount payable as per the decree with proportionate interest and costs and without prejudice to the claim of both parties on or before 18.08.2008, failing which the interim stay granted shall stand automatically vacated and the respondent would be at liberty to execute the E.P. 4. It is brought to the notice of this Court that the revision petitioner has complied with the conditional order passed by this Court as referred to supra. 5. In the affidavit filed by the revision petitioner in I.A.No.303 of 2007 before the trial Court,it is averred that the first notice sent to him in the suit has not been served on him and the same has been returned as affixed and next time since he has refused to receive the notice, the same has been affixed and returned with such an endorsement thereto and this has been accepted by the Court and on 16. 2006 he has been set exparte and on 27. 2006 the witness has been examined and an exparte decree has been passed against him etc. 6. The contention of the revision petitioner is that in an Section 5 application imposing a condition to deposit 50% of the decree amount is not correct in law. 7. 2006 he has been set exparte and on 27. 2006 the witness has been examined and an exparte decree has been passed against him etc. 6. The contention of the revision petitioner is that in an Section 5 application imposing a condition to deposit 50% of the decree amount is not correct in law. 7. The argument of the learned counsel for the revision petitioner is that the revision petitioner has not received the notice and that he has not refused to receive the notice and further that he has gone to Bangalore in Karnataka state along with his wife for doing masonry work and during that relevant point of time his house will be locked and they used to come once in a week to his house and during that period the said notice has not been affixed in the door etc. 8. It is to be borne in mind that there is a delay of 206 days in filing an I.A.No.303 of 2007 to set aside the exparte decree. The stand of the revision petitioner is that the suit pronote has been fabricated by the respondent/ decree holder by committing forgery and that he has good case to contest. 9. It is pertinent to state that a Court of law has to resort to a Justice oriented approach to do evenhanded Justice on merits in preference to the approach which scuttles a decision on merits. 10. It is true that Section 5 of the Limitation Act will have to be liberally construed and not to be construed by adopting a pedantic approach. Refusing to condone the delay will result in a good cause being thrown out at the nascent stage and the cause of justice being defeated. A party runs a serious risk if he files an application for condonation of delay deliberately. By allowing a party to take part in the main proceedings, then there is likelihood of the main cause being decided on merits of course a Court of law providing due opportunities to respective parties. To advance the cause of justice and to deliver substantial justice the technical considerations will have to be ignored. It is to be remembered that a judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing so. 11. To advance the cause of justice and to deliver substantial justice the technical considerations will have to be ignored. It is to be remembered that a judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing so. 11. In the instant case on hand, even though the petitioner has averred in I.A.No.303 of 2007 to the effect that he has not received the summons and that he has also refused the summons sent by the Court etc., yet to provide an opportunity to the revision petitioner and also by taking a liberal view in a pragmatic manner, this Court opines that the civil revision petition can be allowed of course subject to a condition that the revision petitioner shall deposit a sum of Rs.500/-as costs to the credit of the suit before the trial Court within 12 days from the date of receipt of copy of this order, failing which the petition shall stand dismissed automatically without any further reference. However, the order of the trial Court in directing the revision petitioner to deposit 50% of the decree amount into Court before 012. 2007 is an onerous one in the given set of facts and circumstances of the present case and therefore, the same is set aside to prevent an aberration of justice. .12. In fine, the Civil Revision Petition is allowed. The petitioner is directed to deposit a sum of Rs.500/- to the credit of O.S.No.83 of 2006 on the file of District Munsif Court, Ambur on or before 8. 2009, failing which the petition shall stand dismissed automatically without any further reference. The trial Court, after such deposit being made by the revision petitioner, is directed to restore the suit on its file and further the revision petitioner is directed to file his written statement along with the deposit of costs without any further delay and after filing of the written statement, the trial Court shall frame issues and further directed to dispose of the main suit within a period of three months thereafter and to report compliance to this Court without fail. 13. 13. On such amount of costs being deposited by the revision petitioner, it is open to the respondent/decree holder to receive the said costs of Rs.500/-from the trial Court by filing necessary application as per Civil Rules of Practice and while deciding the suit finally and comprehensively, the trial Court shall take into account of the 50% of the decree amount along with proportionate interest and costs remitted by the revision petitioner before the trial Court and the rights of parties will be governed as per the judgment and decree to be passed by the trial Court in the main suit. It is brought to the notice of this Court that the said 50% of the amount as well as the proportionate interests and costs etc. is in Civil Court deposit. Therefore, as a prudent course of action, this Court directs the trial Court to invest the said 50% of the decree amount along with interest and costs in any one of the Nationalized Banks for a period of three months suitably (if not invested already) since the amount in Court deposit cannot remain idle. Consequently, connected miscellaneous petition is closed.