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2009 DIGILAW 3496 (MAD)

Palanisamy v. Kamala

2009-09-01

M.VENUGOPAL

body2009
Judgment :- The civil revision petitioner/petitioner/defendant has filed this Civil Revision Petition as against the order dated 30.01.2008 in I.A. No.4422 of 2007 in I.A. No.1295 of 2006 in un-numbered O.S.(O.S. No.361 of 2001 on the file of the I Additional Sub-Judge, Puducherry) on the file of the Learned I Additional District Munsif at Puducherry in dismissing the application filed under Section 5 of the Indian Limitation Act 1963, seeking to condone the delay of 70 days in filing an application under Order 9 Rule 9 of the Civil Procedure Code. The trial Court while passing orders in I.A. No.4422 of 2007 on 30.01.2008 has inter-alia opined that the petitioner has not given any sufficient reason to prove his side and by filing this application the petitioner is obviously prolonging the case without any merits and resultantly dismissed the application. 2. The learned counsel for the revision petitioner/defendant urges before this Court that the trial Court has committed an error in rejecting the I.A. No.4422 of 2007 and the said order is vitiated by error of jurisdiction besides the same being unsustainable in the eye of law and also that the revision petitioner has been suffering from viral fever and the same has been evidenced by a medical certificate produced and the petitioner has satisfied the requirement of Section 5 of the Limitation Act and as a matter of fact, the suit has been originally filed before the Additional Sub Court Puducherry and the suit has been decreed ex parte on 02.08.2004 and that the petitioner filed I.A.No.1295 of 2006 in time before the Additional Sub Court Puducherry, but however, without the notice to the petitioner the said application has been transferred to the file of Learned Additional District Munsif, Puducherry, who passed an conditional order dated 22.02.2007 and inasmuch as the transfer proceedings have not been known to the petitioner the order dated 22. 07 has not been complied with and therefore, the application has been dismissed for default and that on coming to know of the proceedings having been transferred to the file of First Additional District Munsif, Puducherry, the petitioner has filed the instant application for restoration of I.A.No.1295 of 2006 along with an application to condone the delay, and these aspects of the matter have not been appreciated by the trial Court in a proper perspective which has resulted in erroneous order being passed against the petitioner and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice. 3. The petitioner/defendant in the affidavit in I.A.No.4422 of 2007 has averred that he is a mortgager and has contested the suit and filed his written statement and when the case has been posted for trial an ex parte decree has been passed against him and he has filed an application to set aside the ex parte decree under Order 9 Rule 13 of Civil Procedure Code and the same has been allowed on 22.02.2007 directing him to pay a cost o Rs.200/- and due to his non-appearance on 02.03.2007 the said application has been dismissed in default and that he has been affected by viral fever and as such unable to contact his counsel and also attend the Court on 02.03.2007 and moreover, his counsel has gone to outstation works on 02.03.2007 and as such there has been a delay of 72 days in filing the present application which needs to be condoned. 4. In the counter filed by the respondent/plaintiff it is averred that the suit O.S.No.364 of 2006 has been filed before the Additional Sub Judge, Puducherry, praying for the relief of foreclosure and the trial has commenced and chief examination through proof affidavit has been completed and that the petitioner has chosen to cross-examine the respondent/PW.1 for about 7 months and the suit has been decreed on 03.08.2004 and the petitioner has filed I.A.No.1345 of 2004 on 211. 2004 to set aside the ex parte decree and the said application has been filed beyond the period of limitation without any application to condone the delay and on transfer from Sub Court to the file of First Additional District Munsif Court. 2004 to set aside the ex parte decree and the said application has been filed beyond the period of limitation without any application to condone the delay and on transfer from Sub Court to the file of First Additional District Munsif Court. The said I.A.No.1345 of 2004 has been renumbered as I.A. No.1295 of 2006 in which a conditional order has been passed to the effect that "the petition is allowed on cost of Rs.200 payable on or before 02.03.2007 otherwise, the petition will stand dismissed" and since there has been no representation on the side of the petitioner on 02.03.2007 and since costs have not been paid consequently the application I.A.No.1295 of 2006 has been dismissed and the petitioner has filed the medical certificate for his absence on 02.03.2007, the date of payment of costs, but filed an application only on 19.06.2007 to set aside the order of dismissal i.e., beyond 3 ½ months and after many returns and compliance the application has been numbered as I.A.No.4422 of 2007 and notice has been served to the respondent/plaintiff by 211. 2008 or so and the medical certificate refers to suffering from pain in abdomen, that too for a single day but the affidavit in the interlocutory application refers to viral fever and therefore, there is no sufficient cause to condone the delay of 72 days and added further the respondent/plaintiff has been constrained to alienate the suit property in favour of Valli wife of Murugan as per sale deed dated 110. 2007 almost 8 months after the dismissal of the I.A.No.1295 of 2006 and therefore has prayed for dismissal of the applications. 5. The learned counsel for the respondent cites the decision of Gomathi Ammal v. Madhusoodanan Nair and another 1997 (1) CTC 651 at page 653 and 654 wherein it is observed as follows; "...In a similar circumstance, Srinivasan, J. (as he then was) in a judgment reported in Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust, etc. v. R.M. Sevagan Chettiar, 1996 (I) CTC 717 held in the following manner:- "It has been repeatedly held by this Court that ex parte decree cannot be set aside on vague allegations that the defendant was ill. It is for the defendant to prove that he was so ill on the particular day that he could not attend court. v. R.M. Sevagan Chettiar, 1996 (I) CTC 717 held in the following manner:- "It has been repeatedly held by this Court that ex parte decree cannot be set aside on vague allegations that the defendant was ill. It is for the defendant to prove that he was so ill on the particular day that he could not attend court. Until then, it could not be said that there was sufficient cause for his non-appearance. Without proving the sufficient cause of the satisfaction of the court, no person can claim to have the ex parte decree set aside. In this connection, the ruling of this court in Arukkani Ammal v. Guruswamy, 1987 (1) MLJ 32 : 100 LW 707 can be looked into. The learned Chief Justice has laid down the proposition that ex parte decrees cannot be set aside on vague allegations of illness." In our case also, except the production of medical certificate, the petitioner herein has not explained the delay by examining herself. A reading of Order 9, Rule 3, C.P.C ., clearly shows that the applicant must satisfy the Court that the summonses were not duly served or she was prevented by any sufficient cause from appearing when the suit was called on for hearing. In this case, as already stated, there is no averment that summons was not served on her. Failure to adduce evidence for non-appearance, the vague allegation that she was ill and mere production of medical certificate are not sufficient to prove her illness unless the party gets into the box and speaks about the same. Admittedly in our case the petitioner has not entered the box and spoken in support of the medical certificate. In those circumstance, the decision referred to in the above case as well as the other decision of the learned Chief Justice reported in Arukkani Ammal v. Guruswamy, 100 LW 707 are squarely applicable to our case. Since we are concerned with the reason or reasons for condoning the delay in filing petition to set aside the ex parte decree, I am not discussing the merits of the case as argued by the learned counsel for the petitioner." 6. Since we are concerned with the reason or reasons for condoning the delay in filing petition to set aside the ex parte decree, I am not discussing the merits of the case as argued by the learned counsel for the petitioner." 6. Admittedly, in I.A.No.1295 of 2007 a conditional order of payment of costs has been ordered on 22.02.2007 to the effect that the petitioner has been directed to pay a cost of Rs.200/- on or before 02.03.2007 and he has been given a breathing time of 9 days in regard to the petitioner for costs but in the medical certificate dated 03.03.2007 issued by Dr. Damasubhash M.B.B.S, Regd. No.24460, LIC Medical Officer, Pondicherry, in favour of the revision petitioner it is mentioned that, "the petitioner had been suffering from abdomen pain from 02.03.2007 (only one day) and that, was under treatment and now fit to resume his normal duties on 03.03.2007". Therefore, from the medical certificate dated 03.03.2007 issued to the petitioner it is candidly clear that the petitioner has been suffering from abdomen pain from 02.03.2007 only for one day and is fit to resume his normal duties on 03.03.2007. Suffice it for this Court to point out that there is no medical certificate produced on the side of petitioner to prove that he has been affected by viral fever as averred in his affidavit in I.A.No.4422 of 2007. 7. Be that as it may, it is to be pointed out that I.A.No.4422 of 2007 has been filed by the revision petitioner before the trial Court only on 19.06.2007. The other reasoning mentioned in the affidavit filed by the revision petitioner in I.A.No.4422 of 2007 before the trial Court that his counsel has gone to out station works on 02.03.2007 is not a palatable convincing one and hence, the same is not accepted by this Court. 8. In this connection, this court pertinently pointed out that if an honest approach is made by defaulting party within a Court of law can exercise its discretion to pass an appropriate order. However, it is apt to recall the observations of Honble Supreme Court in the decision Mahabit Singh Vs. Subhash and others (2008) 1 MLJ 1214 (SC) which runs as follows; "Admittedly, an exparte decree was passed. However, it is apt to recall the observations of Honble Supreme Court in the decision Mahabit Singh Vs. Subhash and others (2008) 1 MLJ 1214 (SC) which runs as follows; "Admittedly, an exparte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit exparte. Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an application. Even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the exparte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said exparte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order 9 Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the exparte decree in the suit, the said application evidently was barred by limitation." 9. Also it is brought to the notice of this Court that the respondent/plaintiff has alienated the suit property in favour of Valli wife of Murugan as per sale deed dated 110. 2007 if the dismissal of I.A.No.1295 of 2006. 10. Also it is brought to the notice of this Court that the respondent/plaintiff has alienated the suit property in favour of Valli wife of Murugan as per sale deed dated 110. 2007 if the dismissal of I.A.No.1295 of 2006. 10. On a careful consideration of the respective stand taken by the parties and on an overall assessment of the entire facts and circumstances of the case in an integral manner this court is of the considered view that the revision petitioner has not made out a good or sufficient acceptable cause and indeed Section 5 application of the Limitation Act cannot be allowed by a Court of law in a cavalier fashion that too when the application lacks bonafides and in that view of the matter the order of the trial Court in dismissing the I.A.No.4422 of 2007 dated 30.01.2008 is a valid and correct one in the eye of law and the same is not to be interfered with by this Court sitting in revision and resultantly, this civil revision petition fails. 11. For the foregoing reasons, the civil revision petition is dismissed, leaving the parties to bear there own costs. The order passed by the trial Court in I.A.No.4422 of 2007 dated 30.01.2008 is affirmed for the reasons assigned by this Court in this revision. Having regard to the facts and circumstances of the case the parties are directed to bear their own costs in this revision.