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2012 DIGILAW 1094 (MAD)

K. Sudarsan v. D. Krishnamoorthy

2012-02-29

R.S.RAMANATHAN

body2012
Judgment :- The defendant in O.S.No.318 of 2004 on the file of the District Munsif Court, Arakkonam is the revision petitioner. The respondent herein has filed a suit for recovery of Rs.1,00,000/- on the basis of the pro-note executed by the revision petitioner/defendant. The suit was posted for trial and the revision petitioner did not come forward to cross examine, despite several adjournments were given by the Court below and therefore, the Court below decreed the suit as prayed for on 24.06.2009. 2. Thereafter, the revision petitioner filed I.A.No.398 of 2009 under Section 5 of the Limitation Act to condone the delay of 73 days in filing the application to set aside the exparte decree and that application was dismissed. As against the same, this revision petition is filed. 3. It is submitted by the learned counsel for the revision petitioner that the revision petitioner has filed this revision on 24.01.2011 and notice of motion was ordered and interim stay was granted by this Court on 18.08.2011. 4. The revision petitioner informed the Advocate appearing for the respondent herein before the Court below about the stay granted by this Court in this revision and despite the same, the respondent proceeded with the execution petition filed by him in E.P.No.9 of 2011 knowing fully well that stay has been granted by this Court. The Court below also ordered attachment on 13.10.2011 and having regard to the conduct of the respondent in proceeding with execution petition after grant of stay by this Court, the respondent should not be shown indulgence and considering the number of days delay, namely 73 days, the Court below ought to have allowed the application by taking a liberal view and the Court below did not advert to the reason stated by the revision petitioner for the delay and therefore the order of the Court below is liable to be set aside. 5. On the other hand, the learned counsel for the respondent submitted that the Court below, after taking into consideration the earlier conduct of the revision petitioner and also the circumstances, which led to the passing of the exparte decree, rightly dismissed the application and he also relied upon the judgment of the Hon'ble Supreme Court reported in Shiv Cotex v. Tirgun Auto Plast Private Limited and others, [ (2011) 9 SCC 678 ] in support of his condition. 6. 6. It is seen from the order of the Court below that originally exparte decree was passed on 16.11.2004 and it was set aside on 29.11.2004. The plaintiff/ respondent was examined in the chief examination on 31.01.2005 and his chief examination was over on 07.02.2005 and the case was adjourned for cross examination by the revision petitioner to 16.02.2005 and the revision petitioner did not cross examine and therefore he was set exparte and the exparte decree was passed and the exparte decree was set aside on 14.03.2007 and the case was adjourned to 02.04.2007 for cross examination of the plaintiff and at the instance of the revision petitioner, it was adjourned to 11.04.2007, 06.06.2007 and 11.06.2007 and the revision petitioner did not cross examine and therefore, he was set exparte on 18.06.2006 and that exparte decree was set aside at the instance of the revision petitioner on 17.12.2007 and the case was adjourned to 08.01.2008 and indulgence was shown to the revision petitioner to cross examine by granting many adjournments and finally, the exparte decree was passed on 24.06.2009. Considering the conduct of the revision petitioner and not being satisfied with the reasons for condoning the delay, the Court below after relying upon the judgment reported in Palanisamy v. K.Marimuthu, [(2009) 3 TLMJ 569], dismissed the application. 7. Contention of the learned counsel for the revision petitioner was that the Court below without appreciating the reasons stated for the delay erred in dismissed the application and sufficient reasons were stated for the non-appearance of the revision petitioner on 24.06.2009, when he was set exparte. According to the revision petitioner, he sustained a fracture during the 4th week of June 2009 and he was advised to take bed rest and that was the reason for the delay and that was not properly appreciated by the Court. 8. The explanation given by the revision petitioner cannot be accepted and the Court below also considered the same and held that the revision petitioner has not proved that he was in bed rest from 22.06.2009 for three months and except the oral evidence, no document was produced by the revision petitioner to prove the same. 9. Further, in similar circumstances the Hon'ble Supreme Court in Shiv Cotex v.Tirgun Auto Plast Private Limited and others [ (2011) 9 SCC 678 ] held as follows:- "16. 9. Further, in similar circumstances the Hon'ble Supreme Court in Shiv Cotex v.Tirgun Auto Plast Private Limited and others [ (2011) 9 SCC 678 ] held as follows:- "16. No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in the proviso to Order 17 Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order 17 Rule 1 CPC should be maintained. When we say "justifiable cause" what we mean to say is , a cause which is not only "sufficient cause" as contemplated in sub-rule (1) of Rule 1 of Order 17 CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. 17. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit-whether the plaintiff or the defendant-must co-operate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril." 10. As stated supra, the revision petitioner was given sufficient opportunity to cross examine and on three occasions, he was set exparte and the exparte decree was set aside with a view to give opportunity to the revision petitioner to proceed with the case. Unfortunately, the revision petitioner did not make use of the opportunity and thought it fit to prosecute the case according to his whims and fancies and that practice has been deprecated by the Hon'ble Supreme Court in the above judgment. 11. Hence, I do not find any reason to interfere with the order of the Court below. The order of the Court below is confirmed and the revision petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.