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2013 DIGILAW 3993 (MAD)

R. Manikandan v. B. N. Sridharamoorthy

2013-11-25

B.RAJENDRAN

body2013
JUDGMENT 1. The revision petitioners have come forward with this Civil Revision petition challenging the order dated 26.07.2013 passed by the court below, by which the application filed by them to condone the delay of 78 days in filing an application to set aside the exparte decree dated 10.01.2013, was dismissed. 2. The respondents herein, as plaintiffs, have filed the suit in O.S. No. 13 of 2012 on the file of the District Judge, Salem for specific performance of the agreement dated 09.01.2011 and for a consequential injunction restraining the defendants revision petitioners herein from alienating or encumbering the suit property to third parties. The suit was decreed exparte due to non-appearance of the defendants/revision petitioners herein. To set aside the exparte decree dated 10.01.2013, the defendants/revision petitioners herein have filed I.A. No. 417 of 2013 in O.S. No. 13 of 2012 under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the exparte decree dated 10.01.2013. The court below, on considering the submissions made by both sides dismissed the application and refused to condone the delay, which resulted in the filing of the present Civil Revision Petition by the defendants. 3. The learned Senior counsel appearing for the defendants/revision petitioners would contend that the suit was filed for specific performance of the agreement dated 09.01.2011. According to the learned senior counsel for the revision petitioners, the very agreement dated 09.01.2011 itself is a sham and nominal document created for the purpose of filing the suit and therefore it will not bind the revision petitioners in any manner. In fact, even prior to the filing of the suit, the defendants/revision petitioners herein have sent a notice through their lawyer on 09.03.2011, calling upon the plaintiffs/respondents herein to cancel the sale agreement dated 09.01.2011 for which the plaintiffs/ respondents herein have sent a reply notice dated 17.03.2011 stating that they are not willing to cancel the agreement of sale. Thereafter, the plaintiffs/respondents have filed the suit for specific performance of the agreement dated 09.01.2011. On receipt of summons in the suit, the defendants/revision petitioners have engaged an advocate and entered appearance, but did not file counter or written statement in time. With the result, the suit was posted for recording exparte evidence on 10.01.2013 and on the same day, the suit was decreed exparte. On receipt of summons in the suit, the defendants/revision petitioners have engaged an advocate and entered appearance, but did not file counter or written statement in time. With the result, the suit was posted for recording exparte evidence on 10.01.2013 and on the same day, the suit was decreed exparte. The learned senior counsel for the defendants/revision petitioners would mainly contend that the counsel engaged by the defendants/revision petitioners did not inform them about the status of the case or the necessity to file a counter and written statement. The defendants/revision petitioners came to know about the exparte decree only on receipt of notice in R.E.P. No. 95 of 2013 filed by the plaintiffs/ respondents herein. Immediately, the defendants/revision petitioners have contacted their counsel on record, his counsel got angry with them and handed over the case bundle on 03.04.2013. Subsequently, the defendants/revision petitioners have engaged another counsel, who, after verifying the court records, filed the present application for condonation of delay. Thus, according to the learned senior counsel for the defendants/revision petitioners, the delay of 78 days in filing the application to set aside the exparte decree dated 10.01.2013 is neither wilful nor wanton but for the reasons mentioned above. The defendants/revision petitioners must be given a chance for defending the suit on merits. Unless the defendants/revision petitioners are given an opportunity to defend the suit on merits, they will be highly prejudiced. The court below, without considering the reasons assigned for the delay has erroneously dismissed the application by simply referring to the fact that the defendants/ revision petitioners have engaged an advocate to defend the suit and therefore they should have been vigilant and diligent in defending the suit, instead of affording an opportunity to them. The learned Senior counsel for the defendants /revision petitioners therefore submit that due to the conduct of the advocate engaged by the defendants/revision petitioners, who did not inform the stage of the case to them, they should not be made to suffer and he prayed for allowing the Civil Revision Petition. 4. The learned Senior counsel for the defendants /revision petitioners therefore submit that due to the conduct of the advocate engaged by the defendants/revision petitioners, who did not inform the stage of the case to them, they should not be made to suffer and he prayed for allowing the Civil Revision Petition. 4. The learned senior counsel appearing for the defendants/revision petitioners relied on the following decision in support of his case:- (i) (N. Balakrishnan vs. M. Krishnamurthy) (1998) 7 SCC 123 for the proposition that in matters relating to condonation of delay, the Courts shall adopt a liberal approach to render justice to the litigants, unless it is shown that the delay had resulted due to a malafide or deliberate action or by adopting dilatory tactics to delay the proceedings. (ii) (Shantilal Gulabchand Mutha vs. Tata Engineering and Locomotive Company Limited and others) 2013 4 SCC 396 for the proposition that even if written statement is not filed, when the court passes an exparte decree, it must satisfy that there is no allegations need to be proved even in respect of a deemed admission. The learned senior counsel also would contend that even for passing an exparte decree reasons must be stated for arriving at a conclusion. The court must be very cautious while exercising its power while passing an exparte decree, whether the defendant attempts to file a written statement and on reading of the judgment, a party must understand what are all the circumstances based on which the court proceeded to pass such an exparte decree. (iii) (Ram Nath Sao @ Ram Nath Sahu and others vs. Gobardhan Sao and others) 2002 3 SCC 195 wherein it was held that a liberal approach should be given in matters of condonation of delay to ensure substantial justice. While explanation of delay is a rule, refusal is an exception. By relying on this decision, it was contended that liberal construction has to be made in matter of this nature to advance substantial justice without any loss imputable to a party. (iv) (Meenakshisundaram Textiles, rep. by its Managing Director vs. Valliammal Textiles Limited, Aandipalayam, Mangalam Road, Tirupur) 2011 3 CTC 168 wherein a Division Bench of this Court held that a decree should show application of minimum requirement to consider the pleadings and evidence. (iv) (Meenakshisundaram Textiles, rep. by its Managing Director vs. Valliammal Textiles Limited, Aandipalayam, Mangalam Road, Tirupur) 2011 3 CTC 168 wherein a Division Bench of this Court held that a decree should show application of minimum requirement to consider the pleadings and evidence. Courts should be extra vigilant when it proposes to pass an exparte decree to find out whether the plaintiff is entitled to such a decree. (v) (Virgo Industries (Eng) Pvt Ltd., vs. Venturetech Solutions Pvt Ltd) 2012 5 CTC 339 for the proposition that under Order II Rule 2 of CPC, there is a bar for filing a second suit. According to the learned senior counsel for the revision petitioners, in the present case, the plaintiffs/respondents herein have already filed a suit for bare injunction and therefore the present suit filed for specific performance is not maintainable. 5. By relying on the above decisions, the learned senior counsel for the revision petitioners would contend that the defendants/revision petitioners must be given an opportunity to contest the case on merits and to raise a defence that the present suit for specific performance is not maintainable. It is further stated that even as per the admission in the plaint, a reference was made to the filing of the earlier suit in which the plaintiffs/respondents herein sought for the relief of permanent injunction. Therefore, it is contended that when the court below passed an exparte decree, it ought to have exercised caution and order must have been disclosed the basis on which it was passed. In the present case, no such reason has been given and therefore, the exparte order must be set aside. Merely because there is a technical flaw or a wrong committed by the advocate engaged by the revision petitioners, it will not be a ground to deprive the defendants/revision petitioners from defending the suit. 6. Per contra, the learned senior counsel appearing for the plaintiffs /respondents would contend that in the affidavit filed in I.A. No. 417 of 2013 for condonation of delay, the defendants/revision petitioners have falsely averred that they came to know about the knowledge of the exparte decree in the suit only on receipt of the notice served in the execution petition. Per contra, the learned senior counsel appearing for the plaintiffs /respondents would contend that in the affidavit filed in I.A. No. 417 of 2013 for condonation of delay, the defendants/revision petitioners have falsely averred that they came to know about the knowledge of the exparte decree in the suit only on receipt of the notice served in the execution petition. The exparte decree was passed in the suit on 10.01.2013 and the petitioners have not taken any steps to set aside the same especially when they have engaged a counsel in the suit. It is stated that the defendants/revision petitioners have filed vakalath in the suit on 01.02.2012 and after very many adjournments they did not file counter or written statement. Subsequently, a second advocate has filed change of vakalat on 03.04.2013 through whom the application in I.A. No. 417 of 2013 was filed only on 29.04.2013. The delay in filing the application from 03.04.2013 to 28.04.2013 has not been explained by the defendants/revision petitioners herein. In the meantime, the plaintiffs/respondents have filed R.E.P. No. 95 of 2013 on 27.03.2013. After filing the application in I.A. No. 417 of 2013, the written statement was filed by the revision petitioners on 02.06.2013. In these circumstances, the court below has rightly held that the defendants/revision petitioners have adopted delaying tactics to protract the proceedings. The court below also held that the defendants/revision petitioners have not shown sufficient cause for condoning the delay. 7. The learned senior counsel appearing for the plaintiff/ respondent would further contend that in the present case, the question arise for consideration before this Court is whether the delay has been properly explained by the defendant/revision petitioners and merits cannot be gone in to by this Court at this stage. Even in the exparte order passed by the court below, reasons have been given and the basis on which the order was passed has been clearly spelled out. The defendants/revision petitioners did not show sufficient cause for condonation of delay and therefore the court below is justified in passing the exparte decree. Even though the delay is only 78 days in filing the application to set aside the exparte order, the reasons assigned for delay is that the advocate engaged by the defendants did not conduct the case properly and allegations have been made against the advocate without any basis. Even though the delay is only 78 days in filing the application to set aside the exparte order, the reasons assigned for delay is that the advocate engaged by the defendants did not conduct the case properly and allegations have been made against the advocate without any basis. In fact, the mistake is on the part of the revision petitioners in defending the suit and they were not diligent enough. In this context, the learned senior counsel for the plaintiffs/respondents relied on the decision of the Division Bench of this Court reported in (Union Bank of India, Oppanakkara Street, Coimbatore vs. K.R. Jewellers and others) 2008 (5) CTC 651, wherein the Division Bench of this Court held that mere allegation or negligence on the counsel engaged by a party is not a ground to contend that the delay must be condoned. It was categorically held by the Division Bench of this Court that a party is equally responsible to follow up the case entrusted to the counsel engaged by them and therefore, the reasons assigned in the present case for the delay has to be rejected. In that case before the Division Bench of this Court, there was a delay of 1287 days and it was condoned by the court below by pointing out that delay had occasioned due to the fault of the counsel on record, but the order of the court below was set aside by the Division Bench of this Court. In the present case, the defendants/ revision petitioners have engaged three advocates to defend the suit and inspite of the same, they did not file the written statement in time. In those circumstances, the court below is right in refusing to condone the delay and it needs no interference by this Court. When such a discretionary relief was exercised by the court below on the facts and circumstance of the case, this Court need not interfere with the same. Therefore, the learned senior counsel for the plaintiffs/respondents prayed for dismissal of the Civil Revision Petition. 8. I heard the counsel for both sides. It is mainly argued by the learned senior counsel for the defendants/revision petitioners that the delay sought to be condoned is only 78 days and it cannot be said to be enormous therefore, the court below ought to have afforded an opportunity to the defendants/revision petitioners to defend the suit on merits. 9. I heard the counsel for both sides. It is mainly argued by the learned senior counsel for the defendants/revision petitioners that the delay sought to be condoned is only 78 days and it cannot be said to be enormous therefore, the court below ought to have afforded an opportunity to the defendants/revision petitioners to defend the suit on merits. 9. The plaintiffs/respondents herein have filed the suit for specific performance of the agreement dated 09.01.2011. According to the learned senior counsel for the defendants/revision petitioners, the agreement dated 09.01.2011 is not a valid document and it is a sham and nominal one. In the suit, an exparte order dated 10.01.2013 was passed since the defendants/ revision petitioners have neither filed a counter or written statement besides none represented the defendants for three consecutive hearing. After receipt of notice in R.E.P. No. 95 of 2013 filed by the plaintiffs/respondents herein, I.A. No. 417 of 2013 was filed by the defendants/revision petitioners herein under Section 5 of the Limitation Act to condone the delay of 78 days in filing an application to set aside the exparte decree. The reason assigned for delay is that the advocate engaged by the defendants/revision petitioners did not inform them the stage of the suit or the necessity to file a written statement. 10. It is seen from the records that soon after receipt of notice in the suit, the defendants/revision petitioners have engaged an advocate on 01.02.2012, who took time for filing counter atleast on five hearings and thereafter, the defendants/revision petitioners have changed another advocate who filed the second vakalat on 19.07.2012. The second advocate engaged by the defendants/revision petitioners also took time for about two months. When the second advocate was engaged to defend the suit on behalf of the defendants/revision petitioners, the exparte order dated 10.01.2013 was passed. Thereafter, the defendants/revision petitioners have engaged the third advocate on 03.04.2013, who has filed the application in I.A. No. 417 of 2013 under Section 5 of the Limitation Act on 29.04.2013. 11. In the affidavit filed in support of the application for condonation of delay, it was stated that for the first time, they came to know about the exparte decree dated 10.01.2013 only on receipt of a notice in REP No. 95 of 2013. 11. In the affidavit filed in support of the application for condonation of delay, it was stated that for the first time, they came to know about the exparte decree dated 10.01.2013 only on receipt of a notice in REP No. 95 of 2013. It was also contended that the advocates engaged by them did not inform them about the stage of the suit or the necessity to file a counter or written statement. It was also contended in the application that the defendants/revision petitioners were under the bonafide impression that the agreement dated 09.01.2011 has been cancelled inasmuch as they have sent a notice dated 09.03.2011 through their lawyer. In fact, a reply notice dated 17.03.2011 was sent by the plaintiff/respondent refusing to cancel the agreement of sale. 12. In the present revision petition, this Court has to consider whether the delay in filing the application to set aside the exparte decree has been properly explained or not. Time and again, the Honourable Supreme Court as well as this Court has held that law of limitation imposes an obligation on the party approaching the Court to seek legal remedy within a specified period for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing such remedy within the stipulated time. It was repeatedly held by this Court that in so far as an application for condonation of delay, there is no strait-jacket formula prescribed to come to the conclusion, if sufficient and good grounds have been made out or not the delay can be condoned. Each case has to be weighed from its facts and circumstances in which the party acts and behaves. If the party who seeks the Court shows sufficient cause, a liberal approach can be adopted and it may squarely fall within the concept of reasonable time and proper conduct of the party concerned. 13. In the decision reported in (Vedabai vs. Shantaram Baburao Patil AIR 1998 SC 3222 , the Honourable Supreme Court has held that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case, no such consideration arise. 14. 14. In the decision reported in (Esha Bhattacharjee s. Mg. Committee of Raghunathpur Nafar) 2013 5 CTC 547 the Honourable Supreme Court in para-15 formulated certain guidelines for consideration of cases relating to condonation of delay which can be summarised as follows:- "15. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 15. The parameters laid down by the Honourable Supreme Court in clause (viii) of the above decision has to be taken note of for determination of the dispute involved in this case. 16. With this back ground, when we consider the present case, the delay in filing the application for condonation of delay is only 78 days. Of course, the argument advanced on behalf of the plaintiffs/respondents is that even though the defendants/revision petitioners entered appearance through an advocate and vakalath filed twice, the litigation was prolonged by taking many adjournments, besides that even written statement was not filed. 17. It is seen from the order passed by the court below that on behalf of the defendants/revision petitioners, vakalath was filed on 01.02.2012 by the counsel engaged by them and he took many adjournments without even filing written statement. The hearing of the suit was posted on 12.04.2012, 29.06.2012, 29.07.2012 for filing written statement. While so, on 19.07.2012, a second advocate entered appearance and he took time for filing written statement on 30.08.2012, 14.09.2012. Since the written statement was not filed, the suit was posted for recording exparte evidence on 06.12.2012. On 06.12.2012, PW1 was examined, he filed proof affidavit, Exs. P1 to P7 were marked and the hearing of the case was adjourned to 03.01.2013. On 03.01.2013, PW1 was further examined and Ex. P8 was marked. Subsequently, on 10.01.2013, exparte decree was passed. 18. On 06.12.2012, PW1 was examined, he filed proof affidavit, Exs. P1 to P7 were marked and the hearing of the case was adjourned to 03.01.2013. On 03.01.2013, PW1 was further examined and Ex. P8 was marked. Subsequently, on 10.01.2013, exparte decree was passed. 18. In the application filed for condonation of delay of 78 days, it was stated that the first advocate engaged by the defendants/revision petitioners did not inform them of the stage of the case and therefore, they have engaged a second advocate, who also did not conduct the case properly which resulted in the passing of the exparte order. Therefore, the defendants/revision petitioners have appointed a third advocate, who after verification of the records filed the present I.A. No. 417 of 2013 on 29.04.2013 with a delay of 78 days in filing the application to set aside the exparte order dated 10.01.2013. This is evident that the defendants/revision petitioners have merely made allegations against the advocates engaged by them for the delay. As per the decision of the Division Bench of this Court relied on by the learned senior counsel for the plaintiffs/respondents, mere allegation against the advocate on record will not constitute sufficient cause for condonation of delay. 19. The learned senior counsel appearing for the defendants/revision petitioners would contend that even though it is an exparte decree, the court below ought to have considered that even in the plaint filed by the plaintiffs /respondents in O.S. No. 13 of 2012, in para-9, they have referred to the earlier suit in O.S. No. 348 of 2011 filed for permanent injunction before the I Additional District Munsif Court, Salem on 05.04.2011. When the suit in O.S. No. 348 of 2011 has been filed, the cause of action for filing the present suit arose at that point of time itself and the present suit for specific performance is a bar. The plaintiffs/respondents, at the first instance, ought to have filed a suit for specific performance but without doing so, they ought not to have filed the earlier suit for permanent injunction and therefore, the present suit filed is a bar under Order II Rule 2 of CPC. The plaintiffs/respondents, at the first instance, ought to have filed a suit for specific performance but without doing so, they ought not to have filed the earlier suit for permanent injunction and therefore, the present suit filed is a bar under Order II Rule 2 of CPC. It is not known as to whether the plaintiffs/respondents have obtained permission at the time of filing the earlier suit but the allegations in the earlier suit is that the defendants/revision petitioners are attempting to alienate or encumber the suit property and therefore the earlier suit was filed. Even though it is an exparte order, according to the learned senior counsel for the revision petitioners, the court below ought to have considered this aspect of the matter and verified as to whether permission was obtained for filing the present suit, before passing the exparte order. Therefore, in view of the decision rendered in Virgo Industries (Eng) Pvt Ltd., vs. Venturetech Solutions P Ltd, 2012 5 CTC 359, the second suit is a bar. Under those circumstances, it is argued by the learned senior counsel for the revision petitioners that unless an opportunity is given to the defendants/revision petitioners to agitate this legal point, they will be highly prejudiced. In para-15 of the above decision, the Honourable Supreme Court held as follows:- "15. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R.Vimalchand and M.Ratanchand v. Ramalingam, T.Srinivasalu & T. Venkatesaperumal (supra) holding that the provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Maruti Bholoram and by the Bombay High Court in Krishnaji v. Raghunath. 20. Similarly, in Shantilal Gulabchand Mutha vs. Tata Engineering and Locomotive Company Limited and others) 2013 4 SCC 396 wherein in para-9, it was held as follows:- "9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary and Court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the Court must be satisfied that there is no fact which needs to be proved inspite of deemed admission by the defendant, and the court must given reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understand what were the facts and circumstance on the basis of which the court must proceed and order what reasoning the suit has been decreed." 21. At this stage, the learned senior counsel for the plaintiff/ respondents would point out that in case of condonation of delay, court should not go into the merits of the case but to see whether the reasons assigned for condonation of delay are justifiable. No doubt, it is true that in the present case, this Court cannot go in to the merits of the case. No doubt, it is true that in the present case, this Court cannot go in to the merits of the case. At the same time, this Court should exercise caution in dealing with the case of this nature. It is to be seen whether the court below had applied its mind to the existing facts and circumstance at the time of passing the final order. It is also to be seen whether in the suit, the plaintiff had expressed its readiness and willingness to perform their part of the contract. 22. In view of such specific stand taken by the learned senior counsel for the defendants/revision petitioners that the earlier suit filed by the plaintiffs/ respondents might be a bar and that the defendants/revision petitioners should be given an opportunity to raise such plea, this Court is of the view that the court below ought not to have refused to condone the delay and the defendants/ revision petitioners cannot be deprived of an opportunity to defend the suit on merits. At the same time, while condoning the delay, this Court is also taking note of the prejudice caused to the plaintiff/respondent for which they are liable to be compensated. 23. Accordingly, this Civil Revision Petition is allowed with costs of Rs.10,000/-. Consequently, the order dated 26.07.2013 made in I.A. No. 417 of 2013 in O.S. No. 113 of 2013 on the file of the III Additional District and Sessions Judge, Salem is set aside. I.A. No. 417 of 2013 in O.S. No. 13 of 2012 is allowed. It is made clear that the observations made in this order are meant only for the purpose of disposal of this Civil Revision Petition and it need not be taken into account by the court below for disposal of the suit. Consequently, the connected miscellaneous petition in this Civil Revision Petition is closed.