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2012 DIGILAW 2712 (MAD)

M. Ravi, Salem District v. G. Selvakumaran

2012-06-28

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition is filed challenging the fair and decreetal order dated 20.01.2012 passed by the District Munsif, Mettur, in I.A. No: 1115 of 2011 in O.S. No: 26 of 2009. 2. The revision petitioner is the plaintiff before the Court below who has filed a suit for recovery of a sum of Rs.1,00,000/-with subsequent interest from the date of filing of the suit. The suit was posted for filing written statement on 19.02.2010. As the defendant has not turned up, it was adjourned and on 23.02.2010 he was set ex-parte. An ex-parte decree came to be passed on 03.03.2010. Thereafter, the defendant filed I.A. No: 1115 of 2011 to condone the delay of 525 days in filing a petition to set aside the exparte decree dated 03.03.2010 on the ground that the defendant is an acute sugar patient and hence, he could not meet his counsel in time and therefore, there was a delay. By the order dated 20.01.2012, the District Munsif, Mettur, allowed the said I.A. with costs. Aggrieved over the same, the plaintiff is before this Court in the present revision. 3. The learned trial Judge, on consideration of the case put forth before him, and on the legal principles laid down by this Court that it must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned and that alone is not enough to turn down his plea and shut the door against him and if the explanation does not smack of malafide or it is not put forth as part of dilatory strategy, the Court must show utmost consideration to the matter, allowed the petition by condoning the delay with cost of Rs. 1,000/- payable to the respondent. The said condition was directed to be complied with on or before 30.01.2012 and the matter stood posted for reporting compliance. As against this order, the present Civil Revision Petition is filed. 4. Mr. P. Mathivanan, learned counsel appearing for the revision petitioner would consistently plead that the delay was not explained properly and, therefore, the order of the learned trial Judge, which is without any reasoning, cannot be sustained. The Court below ought not to have believed the medical certificate in Ex.P.1 to condone the delay of 525 days especially when there is no proper explanation. 5. The Court below ought not to have believed the medical certificate in Ex.P.1 to condone the delay of 525 days especially when there is no proper explanation. 5. Heard the learned counsel for the revision petitioner and perused the materials available on record. Admittedly, the petitioner is the plaintiff in the suit for recovery of money on the basis of a pro note executed by the defendant in favour of the plaintiff. The case was posted on 19.02.2010 for filing written statement. The defendant did not turn up the case was adjourned and on 23.02.2010 he was set ex-parte. An ex-parte decree came to be passed on 03.03.2010. Later, the defendant filed a petition to set aside the exparte decree along with a petition to condone the delay of 525 days. He took a plea that he is an acute sugar patient and that the Doctor who treated him advised continuous rest again and again and therefore, he was unable to meet his counsel in order to give details to file a written statement in time. 6. The learned trial Judge, on consideration of the entire factors involved in the case and the pleadings of the parties concerned came to the following conclusion : "11. In this case, the petitioner failed to properly explain the delay. But that does not mean that the petitioner is deliberately gaining time. Now, the petitioner himself comes forward to deposit 25% of the decree amount. Considering this offer, this Court is of the view that one opportunity can be granted to the petitioner to defend the suit. The respondent incurred some expenses by filing E.P. and contesting this application. Therefore, the petitioner, apart from depositing 25% of the decree amount has to compensate the loss and hardship caused to the respondent by paying a cost of Rs.1,000/-With these conditions, this application can be allowed. 12. In the result, this petition is allowed subject to the condition that the petitioner shall deposit 25% of the decree amount as given in the exparte decree dated 03.03.2010 to the credit of this suit. The petitioner shall also pay a sum of Rs. 1,000/- as costs payable to the respondent." 7. From a reading of the above, it is clear that the Court below has exercised its discretionary jurisdiction, and in order to give an opportunity to the defendant to defend his case, allowed the petition. The petitioner shall also pay a sum of Rs. 1,000/- as costs payable to the respondent." 7. From a reading of the above, it is clear that the Court below has exercised its discretionary jurisdiction, and in order to give an opportunity to the defendant to defend his case, allowed the petition. By way of balancing its act, the Court below has directed the defendant to deposit 25% of the decree amount as given in the exparte decree dated 03.03.2010 to the credit of the suit. Further, realising the expenses incurred by the plaintiff in filing the E.P., the Court below has directed the defendant to pay a sum of Rs. 1,000/- as costs. Thus, this Court is of the opinion that the Court below has not committed any error or illegality warranting interference by this Court. Accordingly, the Civil Revision Petition is dismissed. Connected miscellaneous petition is also dismissed. There shall be no orders as to the costs.