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2012 DIGILAW 2566 (MAD)

S. Vairakannu v. Sivakumar

2012-06-20

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 21.03.2012 passed in I.A.Nos.72 and 73 of 2012 in I.A.Nos.304 and 305 of 2011 in O.S.No.136 of 2004 on the file of the Sub Court, Harur, these civil revision petitions are focussed. 2. The germane facts as stood uncurtained in this matter could be encapsulated thus: The respondent herein filed the suit for specific performance and obtained an ex parte decree. Subsequently I.A.No.304 of 2011 was filed to get the delay of 1134 days condoned in filing, the I.A.No.305 of 2011 under Order IX Rule 13 of CP to get the ex parte decree set aside. Both those applications were taken together by the lower Court and in that order was passed to the effect that on deposit of Rs.20,000/-by the petitioner/defendant therein in favour of the plaintiff, the ex parte decree shall stand set aside and that he would be having opportunity to prosecute his defence in the matter. However, the time stipulated expired without the order having been complied with. Subsequently, I.A.Nos.72 and 73 of 2012 were filed for the purpose of getting the time extended for complying with the earlier order relating to payment of cost to the plaintiff. However, the said application was dismissed on the main ground that the lower Court had no power to condone such delay. 3. Being aggrieved by and dissatisfied with the said order, these two revisions have been focussed on various grounds. 4. The learned counsel for the revision petitioner would pyramid his argument to the effect that the lower Court got itself mislead on the assumed proposition of law that Court had no power to extend the time stipulated in such conditional order. 5. Heard the learned counsel for the respondent, who would submit that the lower Court was considerate in accommodating the revision petitioner herein by passing such conditional order even though such conditional order itself was not strictly in accordance with law. However, that opportunity was not utilised by the revision petitioner. Over and above that, he filed the application for getting extended the time stipulated in the conditional order after enormous delay of nearly three months. In such a case, no sympathy could be shown towards the revision petitioner. 6. However, that opportunity was not utilised by the revision petitioner. Over and above that, he filed the application for getting extended the time stipulated in the conditional order after enormous delay of nearly three months. In such a case, no sympathy could be shown towards the revision petitioner. 6. The point for consideration is as to whether the lower Court was justified in not extending the time for complying with the conditional order dated 25.11.2011 passed in I.A.Nos.304 and 305 of 2011? 7. No doubt in the litigative process, a litigant is expected to be diligent and prudent in prosecuting his defence. But in this case, the opportunity given by the lower Court was not utilised in time. He had also not chosen to approach the Court immediately after expiry of the time stipulated for deposit of such cost. If a strict view is taken, obviously the revision petitioner would not be able to get any relief. Having in mind the fact that the suit is one for specific performance, that an ex parte decree was passed, that an opportunity has to be given to the revision petitioner, I would like to allow the civil revision petition by enhancing the cost of Rs.20,000/- to Rs.22,000/- (Rupees twenty two thousand only) payable by the petitioner within a period of one week from this date. On such report of compliance, the trial Court shall do well to see that the matter is taken up as per law. 8. On hearing the order, the learned counsel for the respondent would make an extempore submission that on such compliance with the order, the lower Court might be directed to dispose of the main O.S. itself within a time frame. I could see considerable force in the submission made by the learned counsel for the respondent. Accordingly, on report of such compliance, the trial Court shall do well to see that the main suit itself is disposed of within a period of four months from the date of receipt of a copy of this order. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.