J. Jesubalan v. P. S. K. Finance & Chit Funds Limited, rep. by its Managing Director
2012-07-20
G.RAJASURIA
body2012
DigiLaw.ai
Judgment :- 1. Animadverting upon the order dated 6.1.2012 passed by the Additional District Judge, Fast Track Court, Salem, in I.A.No.127 of 2011 in I.A.No.312 of 2010 in O.S.No.78 of 2007, this civil revision petition is filed. 2. A thumbnail sketch of the germane facts absolutely necessary for the disposal of this civil revision petition would run thus: '(i) The respondent herein filed the suit O.S.No.78 of 2007 for recovery of money. After filing of the written statement, when the matter came up for trial, the defendant remained ex-parte; whereupon ex-parte decree was passed. (ii) Subsequently, the defendant filed the application I.A.No.312 of 2010 under Section 5 of the Limitation Act to get the delay of 903 days condoned in filing the application under Order 9 Rule 13 of C.P.C. to get the ex-parte decree set aside, which was dismissed for default. (iii) Whereupon, within the limitation period, application in I.A.No.127 of 2011 under Order 9 Rule 9 read with Section 151 C.P.C was filed to get restored the I.A.No.312 of 2010 which was dismissed for default. (iv) The said I.A.No.127 of 2011 was allowed subject to payment of cost of Rs.1000/-and also deposit of 25% of the decree amount." 3. The learned counsel for the petitioners/defendants would submit that the cost was deposited in Court; however, the condition to deposit 25% of the decree amount was not complied with, as it was onerous. Hence, this revision petition has been filed. 4. Placing reliance on the grounds of revision, the learned counsel for the revision petitioners/defendants would submit that normally while condoning the delay or for restoring the one other I.A for condoning the delay, deposit of the suit amount would not be ordered. But in this case, it was ordered so, which is onerous. 5. Whereas, the learned counsel for the respondent/plaintiff, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioners/defendants, would echo the cri de coeur of his client that the ex-parte decree was passed as early as in the year 2008 and from that time onwards, the defendants are dilly dallying and shilly-shallying with the matter and thereby putting the plaintiff in discomfiture.
The lower Court appropriately and appositely, taking into account the pros and cons of the matter and also the conduct of the defendants in dragging on the proceedings, imposed such a condition to deposit 25% of the decree amount, warranting no interference in revision. 6. In this connection, the learned counsel for the respondent/plaintiff would also cite the decision of the Honourable Supreme Court reported in (2002)3 SUPREME COURT CASES 159 – V.K.INDUSTRIES AND OTHERS V. M.P.ELECTRICITY BOARD, RAMPUR, JABALPUR, which is not relating to the condition to be imposed at the time of condoning the delay. 7. The point for consideration is as to whether the condition imposed by the lower Court in directing and mandating the defendants to deposit 25% of the decree amount is tenable and justifiable? 8. Trite the proposition of law is that at the time of setting aside the ex-parte decree, the Courts are imposing certain conditions like calling upon the defendant to furnish immovable property security or deposit some part of the suit amount. But in this case, the application under Section 5 of the Limitation Act was dismissed and thereafter, application under Order 9 Rule 9 of C.P.C was filed to get restored the said application. The Lower Court, in its wisdom thought fit to restore the said application, however, subject to the aforesaid conditions. 9. In my considered opinion, the cost imposed could have been enhanced, but the imposition of the condition mandating the defendants to deposit 25% of the decree amount was not warranted and the lower Court could reserve such order to be passed at a later stage of the said proceedings, if at all it decides to set aside the ex-parte decree itself. Hence, with this in view, I would like to modify the order of the lower Court to the effect that the cost of Rs.1000/-(rupees one thousand) shall be enhanced to Rs.3000/- (rupees three thousand) payable by the revision petitioners herein/defendants to the respondent herein/plaintiff within a period of one week from the date of receipt of a copy of this order and accordingly it is ordered. The rest of the condition shall stand set aside. 10. The civil revision petition is ordered accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.