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2014 DIGILAW 2365 (MAD)

Muthusamy v. Velayutham Ambalakaran

2014-08-05

R.KARUPPIAH

body2014
Judgment 1. This Civil Miscellaneous Appeal is filed against the fair and decretal order made in I.A.No.7 of 2001 in A.S.No.95 of 2007 dated 14.09.2011, on the file of Sub-Court, Pudukkottai. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondent and perused the materials available on record. 3. The appellant herein filed a suit in O.S.No.19 of 2001 against the respondent herein and the trial Court has decreed the suit after contest. Aggrieved by the above said decree and judgment passed by the trial Court, the respondent herein preferred a first appeal in A.S.No.95 of 2007 before the first appellate Court. At the time of hearing of the above said appeal, the learned counsel appearing for respondent herein filed a memo by stating that no instruction from the respondent. Therefore the first appellate Court has recorded that memo and after hearing the submission of the learned counsel for the appellant, passed an exparte decree and judgment and allowed the above said appeal on 16.12.2009 and dismissed the original suit filed by the appellant herein. 4. The appellant herein filed an application in I.A.No.7 of 2011 under Order 41 Rule 21 of C.P.C to set aside the exparte decree passed in the above said appeal and permitted the appellant herein to argue the appeal. In the affidavit filed by the appellant herein in support of the application, it is stated that, at that time of application the age of the appellant was 70 and suffered from diabetes and also affected his health condition for six months prior to the date of disposal of the suit. Therefore the appellant unable to contact his counsel to give instruction and hence an exparte judgment and decree have been passed by the first appellate Court. In the affidavit, it is also stated that if the application is not allowed, the appellant would suffer a lot. 5. On the side of the respondent herein filed a counter affidavit, in which it is denied the averments made in the affidavit as if the appellant suffered from disabetes and further stated that no sufficient reason has been given for non-appearance of the appellant herein. The learned counsel submitted that the trial Court has considered the above said submissions and finally held that the above said appeal was posted on several hearings but the appellant has not appeared. The learned counsel submitted that the trial Court has considered the above said submissions and finally held that the above said appeal was posted on several hearings but the appellant has not appeared. Further, the learned counsel for the appellant also filed a memo as no instruction and therefore the judgment has been pronounced. Further the learned counsel pointed out that the trial Court has held that this application has been filed on 4.1.2010 within time and the above said application was returned but not represented till 4.8.2010. Therefore due to the above said reasons, the appellate Court correctly dismissed the above said application filed by the appellant. 6. The point for consideration in this appeal is that whether the dismissal order apssed by the first appellate Court is to be set aside? 7. The learned counsel for the appellant submitted that only due to the old age and suffered from Diabetes, the appellant was unable to attend before Court and also unable to inform his counsel. The learned counsel further submitted that as per the settled principle of law laid down by the Honourable Supreme Court, sufficient opportunity must be given to the parties to contest the case on merits and therefore prayed for to set aside the dismissal order of the first appellate court and to allow the above said application. 8. Per contra, the learned counsel for the respondent would submit that inspite of several adjournments, the appellant has not appeared before the first appellate Court. Further the appellant has failed to represent the application within time. Only after several months, the application has been represented. Therefore there is no need to interfere with the above said finding of the first appellate Court. 9. Admittedly, the appellant herein filed a suit before the trial court and the suit was decreed in favour of the appellant. The respondent preferred the first appeal but the first appellate court without hearing the appellant herein, disposed of the above said first appeal. It is not in dispute that at the time of application being filed before the first appellate Court, the age of the appellant is 70 and also revealed that he was suffering from diabetes. 10. The respondent preferred the first appeal but the first appellate court without hearing the appellant herein, disposed of the above said first appeal. It is not in dispute that at the time of application being filed before the first appellate Court, the age of the appellant is 70 and also revealed that he was suffering from diabetes. 10. Considering the above said old age and also affected by diabetes and other factors, this Court is of the view that one more opportunity must be given to the appellant to contest the appeal before the first appellate court in the interest of justice. No serious prejudice will be caused to the respondent. Therefore the order passed by the first appellate Court in I.A.No.7 of 2011 is to be set aside and the appeal is to be allowed. 11. In the result, the appeal is allowed and the dismissal order passed by the first appellate Court in I.A.No.7 of 2011 in A.s.No.95 of 2007 is set aside and the first appellate Court is directed to hear bothsides and pass a judgment within six months from the date of receipt of a copy of this order. No order as to costs.