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2014 DIGILAW 1854 (MAD)

Sheik Dawood v. Abdul Hameed Khadir Trust

2014-07-02

R.KARUPPIAH

body2014
Judgment 1. The revision petitioner/defendant filed this Revision Petition as against the Decree and Judgment passed in C.M.A.No.7 of 2006 wherein confirmed the order and decreetal order made in I.A.No.445 of 2005 in O.S.No.126 of 2005. 2. Heard the learned counsel appearing for the revision petitioner and perused the materials available on record. 3. For the sake of convenience, the defendant in the Original Suit is referred as revision petitioner and plaintiff in the original suit is referred as respondent herein. 4. The respondent herein filed a suit for recovery of possession in O.S.No.126 of 2005. In the above said suit, the revision petitioner has not filed written statement and also not appeared. Consequently, the trial court has passed an ex-parte decree on 11.11.2005. The Revision Petitioner has filed an application in I.A.No.445 of 2005 under Order 9 Rule 13 C.P.C to set aside the ex-parte decree passed on 11.11.2005. The above application was dismissed by the trial court. Aggrieved against the above dismissal order passed by the trial court, the revision petitioner preferred a Civil Miscellaneous Appeal in C.M.A.No.7 of 2006 before the Subordinate Court, Thiruvarur. The Subordinate Judge considered the submissions of both side and finally, confirmed the order passed by the trial court and dismissed the Civil Miscellaneous Appeal. Aggrieved over the above said concurrent finding of both the courts below, the revision petitioner preferred this Civil Revision Petition. 5. The learned counsel appearing for the revision petitioner would submit that the respondent herein filed a suit as against the revision petitioner on 30.08.2005 for recovery of possession and the revision petitioner has appeared through counsel on 04.08.2005. Since the revision petitioner has not filed any written statement the trial court has passed ex-parte decree on 11.11.2005 and immediately, the revision petitioner has filed a petition to set aside the exparte decree on 07.12.2005 within time. 6. The learned counsel appearing for the revision petitioner further submitted that since the Revision Petitioner was suddenly affected by diabetics, he was unable to file written statement within time and also unable to appear before this court. Therefore, the trial court has passed ex-parte decree on 11.11.2005. 6. The learned counsel appearing for the revision petitioner further submitted that since the Revision Petitioner was suddenly affected by diabetics, he was unable to file written statement within time and also unable to appear before this court. Therefore, the trial court has passed ex-parte decree on 11.11.2005. The revision petitioner filed a petition to set aside the ex-parte decree within one month, but, both the courts below have not accepted the above said reason for delay and held that the revision petitioner has not paid the rent for several years and therefore, dismissed the above said petition. The learned counsel also submitted that the revision petitioner is ready to deposit the admitted arrears of rent from January 2006. 7. A perusal of the counter filed by the respondent herein in the above said I.A.No.445 of 2005 revealed that the respondent herein denied the contentions of the revision petitioner that he was suffered by diabetics and on that reason unable to attend the court. It is further stated that the revision petitioner had appeared before the court on 11.11.2005 in another proceedings, which is also pending for recovery of amount from the revision petitioner and the reasons stated in the affidavit are not true and therefore, prayed for dismissal of the above said application. 8. A careful perusal of the orders passed by both the courts below would show that both courts below dismissed the application mainly on the ground that the revision petitioner has not paid any rent for several years. It is also admitted that the ex-parte decree was passed on 11.11.2005 and the revision petitioner has also filed the application in I.A.No.445 of 2005 to set aside the ex-parte decree within one month. The revision petitioner has stated the reason for the delay that he was suddenly affected by diabetics and hence unable to attend the court. The settled principles of law laid down by the Hon'ble Supreme Court is that an opportunity must be given to the parties to contest the suit in the interest of justice. At the same time, the revision petitioner cannot be permitted to retain possession without payment of arrears of rent for several years. 9. The settled principles of law laid down by the Hon'ble Supreme Court is that an opportunity must be given to the parties to contest the suit in the interest of justice. At the same time, the revision petitioner cannot be permitted to retain possession without payment of arrears of rent for several years. 9. Considering the above said circumstances, this Court is of the view that the Revision petition has to be allowed and the dismissal order passed by both the courts below are to be set aside and the I.A.No.445 of 2005 is to be allowed on condition to pay the arrears of rent. 10. In the result, the revision petition is allowed and the dismissal order passed by both the Courts below are set aside and the I.A.No.445 of 2005 is allowed on condition that the revision petitioner shall deposit the entire arrears of admitted rent at the rate of Rs.500/- (Rupees five hundred only) per month from January 2006 to June 2014 to the credit of I.A. No. 445 of 2005 on the file of District Munsif Court, Thiruvarur, failing which, the said I.A. is deemed to be dismissed. No order as to costs.