Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 4141 (MAD)

Palanisamy v. Muthusamy Gounder

2010-09-15

V.PERIYA KARUPPIAH

body2010
Judgment :- This Revision has been filed under article 227 of the constitution of India against the order dated 04.03.2010 made in I.A.No.70 of 2010 in O.S.No.332 of 2006 on the file of the District Munsif Court, Kangayam.) 1. This civil revision petition has been filed by the petitioner against the order passed by the lower court in allowing the application on condition that the petitioner has to deposit a sum of Rs.25,000/-out of the suit claim of Rs.65,000/- and also to pay a sum of Rs.1000/-to the Kangayam Taluk Legal Aid Committee and a sum of Rs.1000/-to the respondent towards costs on or before 11.03.2010 in default to dismiss the said application. 2. Heard Mr.N. Manoharan, learned counsel for the petitioner and Mr.M.A.P. Thangavel, learned counsel for the respondent. 3. Learned counsel for the petitioner would submit in his argument that the lower court having accepted the reasons submitted by the petitioner to set aside the ex-parte decree had come forward to impose the condition of depositing a sum of Rs.25,000/-towards the suit claim and also directed to pay a cost of Rs.1000/- to each Kangayam Legal Aid Committee and to the respondent within the time frame and the said condition is onerous and therefore, it has become necessary for filing the revision so as to interfere with the onerous condition imposed by the lower court for the purpose of allowing the application filed before the lower court. He would further submit in his argument that the petitioner is having a very good case and therefore, there is no necessity of depositing the part of the suit claim which would amount to passing a decree in favour of the respondent, now itself. 4. He would further submit that the lower court was fully convinced about the reasons for not appearing before the court on the day when the decree was passed and therefore, the only point to be seen by the lower court should be the quantum of compensation for the inconvenience caused to the respondent/plaintiff. He would also submit that the lower court had ordered to deposit the part of the suit claim which is not in accordance with law. He would also submit that the lower court had ordered to deposit the part of the suit claim which is not in accordance with law. He would further submit in his argument when sufficient cause has been shown by the petitioner the court should exercise its discretion in the circumstances of that case and the previous negligence for passing any order in the subsequent petition is not sustainable. He would draw the attention of the court to a judgment of Hon'ble Apex court reported in 2000 (II) CTC 27 in between G.P. Srivatasava vs. Shri R.K. Raizada & Ors in support of the said point he stressed. Therefore, he would request the court that the condition imposed against the petitioner for depositing an amount with regard to the suit claim may be removed and the order regarding the costs may be sustained. Therefore, he would request the court to allow the revision after setting aside the order passed by the lower court. 5. Learned counsel for the respondent/plaintiff would submit in his argument that the lower court has correctly come to the conclusion after going through the conduct of the petitioner and had imposed the condition against the petitioner and the discretion was correctly exercised by the lower court by following the judgments of this court reported in 2000 (I) CTC 277 in between A.R. Rajasakaran vs. I.C.D. Triplicane Branch, 2007 (4) CTC 148 in between K.M. Palanisamy vs. P. Sengottaiyan and 2010 (3) CTC 769 in between Pradeep Kumar and another vs. Balasundaram. He would therefore, request the court that the order passed by the lower court to deposit Rs.25,000/- out of the suit claim along with payment of cost of Rs.1000/-each to the Kangayam Taluk Legal Aid Committee and the respondent are lawfully exercised by the court and therefore, they need not be interfered. 6. I have given anxious thoughts to the arguments advanced on either side. 7. The application filed by the petitioner before the lower court in I.A. No.70/2010 in O.S.No.332/2006 was for setting aside the ex-parte decree passed against him on 06.10.2009. 6. I have given anxious thoughts to the arguments advanced on either side. 7. The application filed by the petitioner before the lower court in I.A. No.70/2010 in O.S.No.332/2006 was for setting aside the ex-parte decree passed against him on 06.10.2009. The lower court had considered the reasons mentioned in the affidavit filed along with the said petition and the objections raised in the counter filed by the respondent and had accepted the reasons and had imposed conditions to allow the said application with a direction to deposit a sum of Rs.25,000/-a part of the suit claim and a sum of Rs.1000/-to Kangayam Taluk Legal Aid Committee and another sum of Rs.1000/- to the respondent by the petitioner on or before 11.03.2010. The only point to be seen in this revision would be whether the condition imposed by the lower court was based on any sound and legally based reasons. The lower court in its order stated that the said application was filed for second time and therefore, it has come to the conclusion to impose a condition to deposit Rs.25,000/- towards part of the suit claim. 8. According to the learned counsel for the respondent the lower court had exercised the jurisdiction correctly in view of the judgment of this court, discussed infra. In 2000 (I) CTC 277 in between A.R. Rajasakaran vs. I.C.D. Triplicane Branch, it has been categorically laid down as follows: "2. From the facts and circumstances of the case it is seen that the petitioner's defence mainly relates to the interest portion. There is no dispute in reference to the principal amount which remains unpaid from the year 1991. The petitioner could not even file his reply statement for nearly one year even after the earlier order for production of the copies of the documents by C.B.I. The learned Judge, considering all these, thought it fit that the order must be made on terms. 3. In my view, the order of the learned judge is purely a discretionary order and I find that the Tribunal has exercised its discretion considering the facts and circumstances of the case. I do not find any grounds to interfere with the order. 3. In my view, the order of the learned judge is purely a discretionary order and I find that the Tribunal has exercised its discretion considering the facts and circumstances of the case. I do not find any grounds to interfere with the order. However, if the petitioner finds it difficult to pay the amount in one lumpsum, he can seek appropriate orders for paying the amount in two instalments." Yet another judgment of this court relied upon by the learned counsel for the respondent in 2007 (4) CTC 148 in between K.M. Palanisamy vs. P. Sengottaiyan would run thus: "8. The facts of the cases relied upon by the learned counsel for the revision petitioner and the case on hand are entirely different. This is a money suit. Further, the condition imposed in the present case is only to deposit Rs.50,000/- out of the total money claim of Rs.1,25,000/- with interest at the rate of 12% p.a., from the date of execution of the pro-note that is 9.9.2002, which is in my opinion is reasonable and justifiable. Therefore, the condition imposed cannot be termed either as onerous or as prejudging the controversy involved in the suit. In other words, the condition imposed by the trial court will not influence while deciding the case on merits." Yet another judgment of this court where much emphasis was laid in a judgment reported in 2010 (3) CTC 769 in between Pradeep kumar and another vs. Balasundaram would run thus: "10. On the aforesaid facts and circumstances, I am of the view that the defence raised by the learned counsel appearing for the petitioners that the act of the petitioners is neither wilful nor wanton cannot be accepted. In the light of the decisions rendered by the Hon'ble Apex court and other courts, to meet the ends of justice, I find it just and reasonable to pass a condition order, accordingly, as condition precedent, the petitioners are directed to deposit a sum of Rs.2,00,000/-(Rupees Two lakhs only) to the credit of the suit in O.S.No.64 of 2004 before the court below within eight weeks from the date of receipt of a copy of this order, apart from paying the costs of the suit and the respondent will be entitled to withdraw the costs of the suit to be deposited. If the conditional order is complied with, this civil revision petition will be allowed and in case if the conditional order is not complied with, this civil revision petition shall stands dismissed without any further reference to this court and the respondent will be at liberty to proceed with the E.P." All the judgments of the court, would go to show that the circumstances of each case should have been noted and the conduct of the party to be considered for imposing any condition and conditions were imposed accordingly. 9. As regards this case, the lower court had accepted the reasons submitted by the petitioner and it has also considered the no objection given by the respondent's counsel for allowing the petition on costs. But lower court had imposed a condition of paying part of the suit claim of Rs.25,000/-also as one of the conditions. 10. The judgment of Hon'ble Apex court reported in 2000 (II) CTC 27 in between G.P. Srivatasava vs. Shri R.K. Raizada and others would run thus: "7......The court have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits." In the aforesaid judgment it has been categorically laid down that parties should not be penalised for the previous negligence and the inconvenience of the respondent alone should be compensated with sufficient costs. 11. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits." In the aforesaid judgment it has been categorically laid down that parties should not be penalised for the previous negligence and the inconvenience of the respondent alone should be compensated with sufficient costs. 11. In the light of the dictum laid down by the Hon'ble Apex court when we approach the present case, the petitioner has raised the defence of forgery of the suit promissory note and the trial has to be entered for deciding the said defence and sufficient cause has been shown and the only point to be considered is the quantum of compensation. Therefore, this court could see that the facts discussed in the judgments of this court as cited by the respondent's counsel are different from the facts and circumstances of the present case, and therefore they are applied to the present case. 12. In the aforesaid circumstances, this court feels that the lower court had erred in coming to the conclusion to impose the condition of depositing Rs.25,000/-, a part of the suit claim while ordering compensation as to costs to the respondent. Therefore, the said decision of the lower court is certainly liable to be interfered and the cost of the respondent ordered should alone be permitted. Accordingly the order passed by the lower court in respect of its conditions are interfered and modified and thereby the petitioner is directed to pay a sum of Rs.2000/-to the respondent and a sum of Rs.1000/- to the Kangayam Legal Aid Committee within a period of 15 days from today. On such payment the revision petition and the application in I.A.No.70 of 2010 in O.S.No.332 of 2006 filed before the lower court will be deemed to have been allowed. Failing to comply with the said direction to pay the costs as ordered by this court within the stipulated time, this civil revision petition shall stand dismissed without any further reference to this court. 13. With the aforesaid direction, the revision petition is ordered. Connected miscellaneous petition is closed. There shall be no order as to costs.