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2011 DIGILAW 4441 (MAD)

M. Muthugovindan v. V. Roobachandran

2011-11-08

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the Judgment and Decree dated 24.2.2010 passed in C.M.A.No.35 of 2008 on the file of the Principal District Court, Cuddalore District, Cuddalore, confirming the order and decretal order dated 4.6.2008 passed in I.A.No.33 of 2008 in O.S.No.55 of 2003 on the file of the Sub Court, Panruti. 2. Heard Mr.S.K.Rakhunathan, learned counsel appearing for the revision petitioner and Mr.P.Mani, learned counsel appearing for the respondent. 3. Defendant has filed the revision petition. The respondent filed the suit O.S.No.55 of 2003 on the file of Sub Court, Panruti for recovery of a sum of Rs.1,44,700/- based on promissory note dated 5.12.2001. The revision petitioner/defendant entered appearance, filed written statement and thereafter it is on record that the suit was decreed ex parte on 29.11.2004, which came to be set aside after condonation of delay of 271 days. Thereafter, for the second time, the suit was decreed ex parte on 14.11.2007. To set aside the ex parte decree dated 14.11.2007 the revision petitioner/defendant filed I.A.No.33 of 2008. Taking note of the conduct of the revision petitioner/defendant in trying to prolong the case without just or reasonable cause, the trial Court directed the revision petitioner/defendant to deposit 50% of the decree amount as condition precedent to set aside the second ex parte decree dated 14.11.2007. Challenging the same, the appeal C.M.A.No.35 of 2008 on the file of the Principal District Court, Cuddalore was filed, which was dismissed stating that the condition imposed by the trial Court is not onerous and will not further the substantial cause of justice if interfered. 4. The revision petition is vehemently opposed by Mr.P.Mani, learned counsel appearing for the respondent/plaintiff. 5. At the outset, the conduct of the revision petitioner/defendant from the time of institution of the suit for recovery of money, has been clearly set out by the appellate court in its judgment under challenge. The conditional order of the trial court has been discussed in paragraphs 10, 11, 12 of the order in appeal and it reads is as follows: "10. It is in the light of such submissions, the Lower Court records were called for and perused. It is seen that right from the beginning, the defendant was not pursuing the case properly. The conditional order of the trial court has been discussed in paragraphs 10, 11, 12 of the order in appeal and it reads is as follows: "10. It is in the light of such submissions, the Lower Court records were called for and perused. It is seen that right from the beginning, the defendant was not pursuing the case properly. It is looming large on the face of records that the defendants endeavor was all along to drag the proceedings for obvious reasons. If the contention of the learned counsel for the appellant/defendant about the genuineness of the suit promissory note is to true, nothing would have prevented the defendant to get along with the trial and to establish such fact. On the other hand, records reveal that the defendant was not participating in the trial and allowed the case to be decided exparte and thereupon making application to set aside the exparte decree. Particularly it is seen that recording the wanton nonappearance of the defendant, the trial court on 29-11-2004 set him exparte and passed an exparte decree. It is also seen from the records that the defendant filed an application to set aside the said exparte decree. The said application was returned for certain defects and the defendant has not represented the said application in time. It is seen that the defendant represented the application after 271 days delay with an application praying to condone the delay on certain grounds. In any event, with a view to give a fair opportunity to the defendant, the trial court has allowed that application filed u/s.5 of the Limitation Act and condoned the delay and set aside the exparte decree passed against the defendant on 29-11-2004 and directed him to get along with trial. It is also seen from the records that even thereafter, the appellant/defendant was not getting along with trial and in spite of the presence of plaintiffs witnesses PW.1 to PW.3 the defendant did not cross examine them. Such conduct of the defendant is telling volumes about his intention and therefore the contention of the learned counsel for the defendant that he was not given an opportunity is factually not correct. 11. Such conduct of the defendant is telling volumes about his intention and therefore the contention of the learned counsel for the defendant that he was not given an opportunity is factually not correct. 11. It is also seen from the records that again on recording the non-cooperation of the defendant and his conduct of avoiding the trial in cross examining the plaintiffs witnesses, and recording his absence when the matter was finally posted for trial, the trial court again set him exparte and passed an exparte decree against him on 14-11-2007. As usual, the defendant again filed a petition to set aside the exparte decree passed against him. The said petition was again allowed on condition that on the deposit of 50% of the decreetal amount into court, the exparte decree would be set aside. Without complying such conditional order, the defendant has challenges the same before this court in this appeal. 12. The chronological events pointed out earlier in Para supra shows the intention of the defendant. This being a money suit, has been successfully dragged for years together. If the dilatory tactics of the defendant is encouraged, such course would be nothing short of mockery of the administration of justice. No valid reason is given by the learned counsel for the appellant/defendant for non-prosecution of the case by the defendant in spite of having set aside the exparte decree twice giving him opportunities. It is under such circumstances, the trial court has rightly passed a conditional order to make the defendant to participate in the trial by directing him to deposit 50% of the decreetal amount before a stipulated date failing which to set the petition to stand dismissed automatically. I do not find any irregularity in such an order." 6. From the narration of the facts as above, this Court finds no serious infirmity or irregularity in the order under challenge. The two decisions cited by the revision petitioner/defendant, viz., D.K.Bhaskaran - vs. -Barton Trust reported in 2007(6) MLJ 23 and T.V.Sundaram Iyengar and Sons Ltd. - vs. -S.Raghunathan reported in 2008(2) MLJ 845 , will not support the case of the revision petitioner/defendant as by the nature of the conduct before the court below, it is clear that the revision petitioner/defendant has no intention to proceed with the matter diligently. Unless such stringent condition is imposed, the revision petitioner/defendant will not cooperate in the disposal of the suit. The reasons given by the appellate court for dismissing the appeal is justified. This Court is not inclined to interfere with the order passed by the courts below. 7. In the result, the judgment and decree passed by the appellate Court and the order and decretal order passed by the trial court are confirmed. The Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.