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2014 DIGILAW 870 (MAD)

Nancy Jeevadhas v. A. Rajendhar

2014-04-09

R.KARUPPIAH

body2014
Judgment : 1. The revision petitioner, who is the plaintiff in the suit filed this revision petition against the order dated 30.10.2008 made in I.A.No.1012 of 2008 in O.S.No.97 of 2007 on the file of the District Munsif Court, Thambaram. 2. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the second respondent. For the sake of convenience, the plaintiff in the original suit is referred as revision petitioner and the defendants in the suit are referred as respondents hereafter. 3. The revision petitioner has filed a suit in O.S.No.97 of 2007 on 15.03.2007. The first respondent herein, who is the first defendant in the suit filed a written statement and the second respondent remained exparte in the above said suit. Subsequently, the first respondent also remained exparte and therefore, the trial Court has passed an exparte decree on 07.08.2007. Thereafter, the revision petitioner has filed an Execution Petition in E.P.No.95 of 2007 and in the execution proceeding, the first respondent appeared through counsel and sought adjournment for filing counter for several hearings and the execution petition is still pending. During the pendency of the execution petition, after long time, the first respondent has filed an application in I.A.No.1012 of 2008, on 17.06.2008 to condone the delay of 282 days in filing the petition to set aside the exparte decree dated 07.08.2007. 4. In the affidavit, the first respondent has stated that in the original suit, after receiving summon, the first respondent entered appearance through counsel. At the time of filing the written statement, the first respondent approached the revision petitioner for an amicable settlement and in the month of August 2007, the revision petitioner demanded money to withdraw the suit. It is also stated in the affidavit that the first respondent went to Bangalore to do another project work and due to his ill-health and also heavy work in business, he was unable to come to Chennai and contact his counsel to give instruction for filing the written statement and therefore, the exparte decree was passed. It is further stated that the first respondent received notice in E.P.No.95 of 2007 in the month of January 2008 and when the first respondent approached the revision petitioner about the notice, the revision petitioner has given an assurance to withdraw the execution proceeding. It is further stated that the first respondent received notice in E.P.No.95 of 2007 in the month of January 2008 and when the first respondent approached the revision petitioner about the notice, the revision petitioner has given an assurance to withdraw the execution proceeding. Therefore, the first respondent waited for withdrawal of the execution proceeding, till the end of April 2008. Since the revision petitioner did not withdraw the execution proceeding, the respondent filed a counter in the execution petition and filed the I.A.No.1012 / 2008 to condone the delay of 282 days in filing the petition to set aside the exparte decree dated 07.08.2007. 5. The revision petitioner has filed a detailed counter, in which, it is denied the various contentions particularly the alleged settlement stated in the affidavit as false. Further, the revision petitioner has stated in the counter that the first respondent filed a caveat petition in C.P.No.62 of 2007 and also filed a counter in the address at No.14, Dhanammal Nagar, Kolothur, Chennai-99, and the suit notice and the execution petition notice were served in the above said address and therefore, the first respondent was residing only at Chennai. The revision petitioner also stated in the counter that the first respondent has not produced any medical certificate to prove his ill-health and taken any treatment. Further, an Advocate Commissioner has visited the suit property and filed a report regarding construction and after filing the report only, the exparte decree was passed on 07.08.2007. The revision petitioner has never promised to withdraw the execution proceeding as stated in the affidavit. Therefore, the first respondent has not explained the inordinate delay of 282 days in filing the petition and hence, prayed for dismissal of the above said application. 6. The trial Court has considered both sides submissions and passed conditional order dated 31.10.2008 that the respondent should pay a sum of Rs.500/- as costs to the revision petitioner on or before 12.11.2008, failing which, this application stands automatically dismissed. Aggrieved over the above said order passed by the trial Court, this revision petition has been filed. 7. The learned counsel appearing for the revision petitioner has submitted that in the caveat petition and also counter filed in the suit proceeding, the address of the first respondent has been given only Chennai address and no material to prove that he was residing at Bengalore, as stated in the affidavit. 7. The learned counsel appearing for the revision petitioner has submitted that in the caveat petition and also counter filed in the suit proceeding, the address of the first respondent has been given only Chennai address and no material to prove that he was residing at Bengalore, as stated in the affidavit. Further, after passing the exparte decree, the revision petitioner has filed an execution proceeding and in the above said proceeding, the first respondent has appeared on various dates 20.03.2007, 22.03.2007, 24.03.2007, 28.03.2007, 05.04.2007, 11.04.2007, 20.04.2007, 27.04.2007, 27.04.2007, 22.06.2007 and 25.06.2007, but he has not filed any counter in the execution proceeding. The revision petitioner has filed the application to condone the delay of 282 days only on 17.06.2008 and the first respondent has not at all properly explained the above said inordinate delay. But, the trial Court has failed to consider all the above said facts and therefore, prayed for setting aside the above said order. 8. The first respondent, who is the applicant in the above said I.A.No.1012 of 2008 has not appeared in person or through counsel, inspite of notice was duly served. 9. A perusal of the order passed by the trial Court reveals that the trial Court has failed to consider all the contentions raised by the revision petitioner in the counter and without any sufficient reason, the trial Court has passed an order to allow the application on condition to deposit a sum of Rs.500/-. As rightly contended by the learned counsel appearing for the revision petitioner, the first respondent has received the suit notice and engaged a counsel to appear in the original suit, but written statement was not filed. Further, after passing exparte decree, the execution proceeding's notice also duly served to the first respondent and appeared through counsel, but not filed any counter for several months. After several months, this application has been filed to condone the delay, but, the first respondent has not given any sufficient reasons except the averments made in the affidavit that the revision petitioner has agreed to settle the matter. The above said contention cannot be accepted. Further, there is no material produced to prove that he was ill and for taking treatment. Further, the first respondent has not produced any materials to prove that he was residing at Bangalore. The above said contention cannot be accepted. Further, there is no material produced to prove that he was ill and for taking treatment. Further, the first respondent has not produced any materials to prove that he was residing at Bangalore. The finding of the trial court is perverse as rightly pointed out by the learned counsel appearing for the revision petitioner. Further, the first respondent also not appeared in person or through counsel. Therefore, the order passed by the trial Court is not valid in law and it is liable to set aside. 10. In the result, this revision petition is allowed and the order passed by the trial Court in I.A.No.1012 of 2008 is set aside and the above said I.A.No.1012 of 2008 is dismissed. No costs.