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2013 DIGILAW 630 (MAD)

Parthasarathy v. T. Thangadurai

2013-01-29

G.RAJASURIA

body2013
JUDGMENT 1. This Civil Revision Petition has been filed to get set aside the order dated 16.08.2011, passed in C.M.A.No.8 of 2011, by the learned Principal District Judge, Thanjavur, in confirming the fair and decreetal order passed in I.A.No.73 of 2010 in O.S.No.70 of 2006 dated 26.07.2010, in imposing on the petitioner to deposit Rs.50,000/- as a condition precedent to set aside the exparte decree. 2. Heard both sides. 3. A recapitulation and 'Resume' of facts absolutely necessary and germane for the disposal of the Civil Revision Petition would run thus: The revision petitioner herein/defendant was set exparte in the suit for recovery of money filed by the respondent/plaintiff. Whereupon the revision petitioner/defendant filed an application under Order 9 Rule 13 of the Code of the Civil Procedure to get the exparte decree set aside. While allowing the I.A., the lower Court imposed the condition to the effect that the revision petitioner/defendant should deposit a sum of Rs.50,000/-(Rupees Fifty Thousand only) in Court towards the part of the suit amount. In the meanwhile, the E.P. was filed by the respondent/plaintiff/decree holder, wherein a sum of Rs.18,000/-(Rupees Eighteen Thousand only) was paid by the revision petitioner/defendant/judgment debtor and it was received by the respondent/plaintiff/decree holder. Over and above that, the revision petitioner/defendant could not comply with the rest of the direction of the lower Court for deposit of Rs.50,000/- (Rupees Fifty Thousand Only) in Court. As such, this Revision Petition has been focussed by the revision petitioner. 4. The learned Counsel for the revision petitioner would echoing the cri de coeur and heart burns of his client, implore and entreat that while setting aside the exparte decree, the Courts are not expected to impose onerous condition and that too, to deposit a part of the suit amount. In this connection, he would cite the decision of this Court in C.Seerangan Vs. M.Subramaniam reported in 2010-4-L.W.119. Certain excerpts from it, would run thus: "4. Challenging and impugning the said order of the appellate Court in imposing such onerous condition, this revision has been filed on the main ground that inasmuch as the application under Order 9 Rule 13 of CPC was filed without any delay, the appellate Court was not justified in imposing such onerous condition and in support of the same, the learned Counsel cited the following two decisions: (i) 2000 (II) CTC 27=2003-3-L.W.231, G.P. Srinivasava Vs. R.K. Raizada and others. R.K. Raizada and others. (ii) 2007(5) CTC 198 , D.K. Bhaskaran and another Vs. Barton Trust and another. There could be no quarrel over such a proposition as stood enunciated and exemplified in those two decisions and I am of the view that the imposition of deposit of 50% of the suit amount as a condition precedent for getting the exparte decree set aside is onerous and it has to be remembered that is not even a suit under Order 37 of CPC. Adding fuel to the fire, here the contention of the defendant was that the suit pro note is a fabricated one. Keeping that in mind, I would like to set aside the onerous condition imposed by the lower Court. However, this Court cannot lose sight of the fact that there were laches on the part of the defendant in participating in the proceedings as well as in getting the I.A.No.73 of 2007 processed before the Court diligently. 5. The abominable and reprobate attitude on the part of some litigants in filing applications for name sake and keeping them alive without getting them numbered has to be deprecated in unmistakable terms. So far as this case is concerned, I do not for a moment say that it has happened due to the defendant or because of the staff of the Court. But one thing with certainly I could say, that the defendant was negligent in not getting the I.A. numbered much earlier than 2007. As such, for that I would like to impose a cost of Rs.5,000/-(Rupees five thousand only) as a condition precedent for getting the exparte decree set aside by setting aside the onerous condition imposed by the lower Court in ordering deposit of 50% of the suit amount in Court. The cost shall be paid by the petitioner to the respondent by 31st July 2010 and if there is any default, this order will not enure to the benefit of the petitioner and that the C.M.A. itself would stand dismissed. Accordingly, this Civil Revision Petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed." Accordingly, he would pray for modifying the order passed by the lower Court. 6. Accordingly, this Civil Revision Petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed." Accordingly, he would pray for modifying the order passed by the lower Court. 6. The learned Counsel for the respondent/plaintiff would vehemently oppose the revision petition on the main ground that the lower Court gave ample opportunities to the defendant to participate in the proceedings and in as much as there was no interest shown by the defendant, he was set exparte; where only on such condition, the lower Court passed the impugned order warranting no interference. 7. The point for consideration is as to whether the imposing of the said condition to deposit a sum of Rs.50,000/- (Rupees Fifty Thousand only) which is a part of the suit amount for getting the exparte decree set aside, is justifiable? The Point: 8. The decision cited on the side of the revision petitioner would exemplify and demonstrate that onerous conditions should not be imposed by the Court. Here, the fact remains that for the first time, the defendant was set exparte. In such a case, the lower Court could have very well imposed some costs as a condition precedent for setting aside the exparte decree, instead, the defendant was mandated to deposit a part of the suit amount itself, which in my considered opinion, was onerous. 9. Hence, the said condition imposed by the lower Court is modified as under: Instead of the defendant paying a sum of Rs.50,000/-(Rupees Fifty Thousand only), it would be sufficient, if he pays a sum of Rs.5,000/-(Rupees Five Thousand only) towards costs to the plaintiff within a period of two weeks from the date of receipt of a copy of this order. Whereupon, the exparte order of the lower Court shall stand set aside and the suit shall be taken up for disposal as per law. Where possible, the lower Court is directed to dispose of the suit, within a period of three months thereafter. 10. I would like to make it clear that in the event of the judgment debtor succeeding in the suit, he is entitled to recover the amount of Rs.18,000/-(Rupees Eighteen thousand only) paid to the respondent/plaintiff and that will be a future event depending upon circumstances. 11. With the above observations, the Civil Revision Petition is disposed of. No costs.