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2010 DIGILAW 2318 (MAD)

K. Munusamy v. R. Velusamy

2010-06-09

G.RAJASURIA

body2010
Judgment :- Inveighing the order dated 11.12.2009 passed in C.M.A.No.47 of 2007 by the Additional District Judge, Gobichettipalayam(FTC-II), this civil revision petition is focussed. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition, would run thus:- (i) The respondent herein filed the suit O.S.No.304 of 2003 for specific performance of an agreement to sell in respect of an immovable property. (ii) The revision petitioner being the defendant entered appearance and filed the written statement. Whereupon issues were framed and trial also commenced. P.W.1 was examined and at that time for cross-examination, the defendant took time. (iii) It appears, subsequently, the revision petitioner/defendant did not show interest in pursing the matter. Whereupon the trial Court passed the ex-parte decree on 8.2.2006. (iv) Subsequently, the revision petitioner/defendant filed the I.A.No. 385 of 2006 so to get set aside the said ex-parte decree, and it was allowed. Even thereafter, the revision petitioner/defendant did not show interest in cross-examining P.W.1. Whereupon only the trial Court once again passed the ex-parte decree. The application filed for getting such an ex-parte decree set aside was dismissed, as against which, C.M.A.was filed and that was also dismissed. 3. Being aggrieved by and dis-satisfied with the said order, this civil revision petition is focussed on various grounds, the pith and marrow of them would run thus: (i) The order of both the Courts below were not in accordance with law, as they simply ignored the Tr O.P.95 of 2005 filed by the revision petitioner herein, which was dismissed. (ii) In fact, as against such dismissal of the said Tr O.P., before the High Court C.R.P.SR.No.19392 of 2005 was filed. But instead of giving due opportunity to the petitioner, both the Courts below, without considering the aforesaid point, simply denied opportunity to the revision petitioner. 4. The learned counsel for the revision petitioner would submit that the first appellate Court was not justified in looking into the sale deed, which emerged under the ex-parte decree and give a finding that the said deed is binding on the revision petitioner herein and accordingly, the learned counsel prayed for setting aside the order of both the Courts below and consequently for setting aside the ex-parte decree and give one more opportunity to the petitioner to participate in the proceedings. 5. 5. Whereas the learned counsel for the respondent, by way of torpedoing and pulverising the arguements, as put forth on the side of the revision petitioner submitted his agreements, the gist and kernal of them would run thus: (i) It is not for the first time the lower Court passed the ex-parte decree. (ii) Despite the Court having setting aside the first ex-parte decree and having given opportunity to the revision petitioner to participate in the proceedings, he willfully refused to avail of that opportunity, whereupon only the second ex-parte decree was came to be passed. (iii) Both the Courts below understood the dilatory tactics of the revision petitioner herein and dismissed his request for still one more opportunity, warranting no interference by this Court in revision. 6. The point for consideration is as to whether there is any illegality or irregularity on the part of both the Courts below in rejecting the prayer of the petitioner herein in seeking one more opportunity to participate in the proceedings? 7. Trite the proposition of law is that due opportunity has to be given to the defendant to participate in the proceedings. The maxim Audi alteram partem contemplates that the Court should be lenient in giving opportunity to the parties concerned in title suits. 8. The core question arises as to how far such leniency can be extended; is it ad infinitum and ad nauseam? The answer is an emphatic no. It has become a trite proposition of law that in the litigative process both the parties should show interest and try to reach finality, as otherwise, it would lead to abusing the process of law. Understanding the basic principle of law relating to giving opportunity to the defendant, the trial Court granted earlier one opportunity by setting aside the first ex-parte decree. Despite six months having been elapsed to avail the opportunity given, the defendant did not choose to avail the same. In fact, in the grounds of revision, he would rely upon C.R.P.SR.No.19392 of 2005 as the one filed before this Court as against the dismissal of Tr.O.P. But till date nothing has been shown as to what happened to the said unnumbered CRP. All these facts would clearly and unambiguously demonstrate and display pellucidly and palpably that the revision petitioner does not deserve any more opportunity. 9. All these facts would clearly and unambiguously demonstrate and display pellucidly and palpably that the revision petitioner does not deserve any more opportunity. 9. Incidentally, before the lower Court, during the hearing of the CMA, the sale deed executed by the Court as per the ex-parte decree was produced to show that it has become a fait accompli, whereupon the appellate Court incidentally remarked, that the said sale deed is binding on the respondent. The learned counsel for the revision petitioner cannot look askance at it. I am of the considered view that in a matter of this nature, both the Courts below were justified in dismissing the application, warranting no interference. 10. In the result, the civil revision petition is dismissed. No costs. Connected miscellaneous petition is closed.