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2014 DIGILAW 660 (MAD)

K. Sadasivam v. S. Rangaswamy

2014-03-14

R.KARUPPIAH

body2014
Judgment : 1. The defendant in the original suit filed this revision petition challenging the order passed in I.A.No.283 of 2007 in O.S.No.181 of 2005 on the file of Principal Subordinate Court, Erode dated 17.11.2008. 2. For the sake of convenience, the defendant in the suit is referred as revision petitioner and the plaintiff in the suit is referred as respondent hereafter. 3. Heard the learned counsel appearing for both sides and perused the materials available on records. 4. The revision petitioner has filed a petition under Order 9 Rule 13 of CPC in I.A.No.283 of 2007 to set aside the exparte decree passed against him on 25.07.2006 and restore the original suit. A perusal of the affidavit filed by the revision petitioner revealed that the affidavit is filed only by the revision petitioner's counsel and not by the revision petitioner. In the affidavit, it is stated that the revision petitioner was a Government servant and therefore, he could not get leave and unable to attend the Court and to give instructions. Further, on 25.07.2006, the counsel for the revision petitioner was engaged in other Court and exparte decree was passed and hence, prayed for to set aside the above exparte order. 5. The respondent filed counter in the above said interlocutory application, in which, it is stated that the revision petitioner has not filed any affidavit but the revision petitioner's counsel only has filed the affidavit and on that ground alone, the above said petition is not maintainable. Further, in the counter, it is stated that the respondent has filed a suit for recovery of money in the year 2002 and the respondent has dragging the matter for more than five years. It is also stated in the counter that the revision petitioner already allowed the suit for exparte on 07.04.2004 and filed an application in I.A.No.953 of 2004 to set aside the exparte decree and the same was allowed on payment of cost of Rs.300/- on 03.01.2005. Again, the revision petitioner wantonly allowed the suit exparte and filed the petition as second time. It is also stated in the counter that the case was posted for nearly 22 hearings, but on the side of the revision petitioner has not ready to cross-examine the witness. Again, the revision petitioner wantonly allowed the suit exparte and filed the petition as second time. It is also stated in the counter that the case was posted for nearly 22 hearings, but on the side of the revision petitioner has not ready to cross-examine the witness. It is further stated that E.P.No.56 of 2007 also filed and it is pending and in the above said circumstances, the petition cannot be allowed since it is filed only to harass the respondent. 6. The trial court has considered the submissions made in the petition and counter and finally passed an order on 17.11.2008 as follows:- “(LANGUAGE)” Subsequently, on 22.12.2008, the trial court has passed an order as follows:- "Decree Amount (50%) not deposited in this Court 11.10 A.M. - and 3.00 P.M. Petitioner called absent. No representation. Hence petition dismissed." 7. The revision petitioner has preferred this revision petition, only against the conditional order passed by the trial court dated 17.11.2008 and admittedly, the revision petitioner has not filed any revision petition as against the final order passed on 22.12.2008. 8. The learned counsel appearing for the revision petitioner would submit that without consent of the revision petitioner, the trial court has directed to pay 50% of the decree amount and therefore, the above said order of the trial court is not valid. The learned counsel further submitted that the revision petitioner is ready to deposit 25% of the decree amount before this Court. 9. Per contra, the learned counsel appearing for the respondent submitted that the suit is filed in the year 2002 and from the conduct of the revision petitioner itself proved that the intention of the revision petitioner is only to drag on the proceedings and therefore, strongly object to allow the revision petition. The learned counsel appearing for the respondent further submitted that the petition filed by the revision petitioner itself is not maintainable since the affidavit of the revision petition is only filed by the counsel for the revision petitioner and not by the revision petitioner. Further, the revision petition is not maintainable since the revision petitioner not challenged the final order passed by the trial court on 22.12.2008. The learned counsel further submitted that already, the revision petitioner remained exparte and exparte decree was passed. Further, the revision petition is not maintainable since the revision petitioner not challenged the final order passed by the trial court on 22.12.2008. The learned counsel further submitted that already, the revision petitioner remained exparte and exparte decree was passed. To set aside exparte decree, petition was filed by the revision petitioner and allowed on payment of cost, again the revision petitioner was not appeared for second time and therefore, again exparte decree was passed. Even then, the trial court has liberally allowed the restoration petition on condition to pay 50% decree amount. But, that conditional order was not complied with. Therefore, the intention of the revision petitioner is only to drag on the proceedings and to avoid payment. 10. Admittedly, the revision petitioner has not filed any affidavit and only the counsel appearing for the revision petitioner alone filed the affidavit, by stating that since the revision petitioner was a Government servant and therefore, he was unable to attend the Court. The above said fact should be explained only by the revision petitioner and not by the counsel appearing for the revision petitioner. Therefore, non-filing of affidavit, by the revision petitioner itself is enough to dismiss the petition. Any how, the trial court has passed a conditional order to allow the petition, the revision petitioner has not complied with the condition without any reason. The revision petitioner has not contended that the revision petitioner was no means to pay the above said amount. On the grounds of appeal, it is only stated as without sufficient opportunity to the petitioner, the order was passed by the trial court and hence, it is illegal. 11. As rightly pointed out by the learned counsel appearing for the respondent, the suit is filed in the year 2002 for recovery of money. The revision petitioner has already remained exparte and exparte decree was passed and on payment of cost, the exparte decree was set aside. Again, the revision petitioner was remained exparte and second time also the exparte decree was passed. Even then, the trial court has passed an order to pay 50% of decree amount and on that condition, the trial court ordered that the suit is to be restored. But, that conditional order also not complied with by the revision petitioner. Again, the revision petitioner was remained exparte and second time also the exparte decree was passed. Even then, the trial court has passed an order to pay 50% of decree amount and on that condition, the trial court ordered that the suit is to be restored. But, that conditional order also not complied with by the revision petitioner. From the above said conduct of the revision petitioner would clearly proved that only to prolong the proceedings and to avoid payment, the petitions and this revision petition have been filed and there is no merits in the revision petition and also not maintainable in law. 12. In the result, this Civil Revision Petition is dismissed with costs and confirmed the order passed by the trial court. Consequently, connected miscellaneous petition is closed.