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2014 DIGILAW 1600 (MAD)

S. Narayanamurthy v. P. Satheeshkumar

2014-06-19

R.KARUPPIAH

body2014
Judgment R. Karuppiah, J. 1. The revision petitioner, who is the defendant in the original suit filed this revision petition against the order passed in I.A. No. 231 of 2009 in O.S. No. 22 of 2007 on the file of Subordinate Court, Udumalpet. 2. Heard the learned counsel appearing for the revision petitioner and the respondent. 3. For the sake of convenience, the defendant in the original suit is referred as revision petitioner and the plaintiff in the original suit is referred as respondent hereafter. 4. The respondent has filed a suit in O.S. No. 22 of 2009 for recovery of money and in the above said suit, written statement was filed by the revision petitioner. Since the revision petitioner has not appeared before the trial court, exparte decree has been passed on 08.12.2008. On the basis of exparte decree, the respondent has filed an execution petition E.P. No. 65 of 2009. After that the revision petitioner filed a petition in I.A. No. 231 of 2009 under Section 5 of the Limitation Act to condone the delay of 177 days in filing petition to set aside the exparte decree. The trial court on hearing both sides, passed a conditional order as the petition is to be allowed on payment of cost of Rs. 1000/- to the respondent herein on or before 24.07.2009, failing which the above said petition in I.A. No. 231 of 2009 stands dismissed and posted the matter on 27.07.2009. But, the cost was not paid within the time fixed on 24.07.2009 by the revision petitioner. On 27.07.2009, when the case was taken up for hearing, and for further orders in the above said petition, the revision petitioner filed a petition for extension of time, but, the trial court has dismissed the above said petition as cost not paid as per conditional order. Aggrieved over the above said dismissal order passed by the trial court, this revision petition has been filed. 5. The learned counsel appearing for the revision petitioner would submit that the revision petitioner's sister was suffering from severe jaundice and the revision petitioner took her to Kerala for treatment and attended her all needs since his sister was deserted by her husband and therefore, the revision petitioner unable to pay the cost of Rs. 1000/- to the respondent in stipulated time and prayed for extension of time. 6. 1000/- to the respondent in stipulated time and prayed for extension of time. 6. The learned counsel appearing for the respondent would submit that the revision petitioner filed the petition to set aside the exparte decree with delay of 177 days. Any how, the trial court has passed conditional order but the revision petitioner has not complied with the conditional order and therefore, the order passed by the trial court is valid. The learned counsel further submitted that there is absolutely no proof for the reasons for delay as stated in the affidavit and further, the other proceedings in divorce case also pending. In the above said circumstances, the learned counsel appearing for the respondent objected to allow the revision petition. 7. This Court carefully considered the both sides contentions and this Court is of the considered view that in view of the reasons stated in the affidavit and also in the interest of justice, an opportunity must be given to the revision petitioner to contest the case in the main suit. At the same time, the revision petitioner should pay additional cost to the respondent, apart from the cost already imposed in the order passed by the trial court. 8. In the result, the revision petition is allowed on condition that the revision petitioner should pay an additional sum of Rs. 2000/- along with the earlier cost amount of Rs. 1000/- fixed by the trial court, totaling Rs. 3000/- to the respondent or respondent's counsel on or before 26.06.2014, failing which, this revision petition deemed to be dismissed automatically without any further reference to this court. This Court is also direct the trial court to dispose of the main suit within a period of six months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.