Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1244 (MAD)

Kaliappan v. S. Jeyaraman

2015-03-03

D.HARIPARANTHAMAN

body2015
Judgment 1. The defendant in O.S.No.48 of 2011 on the file of the Additional District & Sessions Judge, Dindigul, is the appellant herein. The respondent is the plaintiff in the aforesaid suit. The suit is for specific performance. 2. The suit was put in the list on 03.10.2012. On 03.10.2012, the respondent herein who is the plaintiff got examined as PW1 and documents Exs.A1 to A6 were marked. Thereafter, on the request of the appellant herein, who is the defendant, the matter got adjourned to 15.10.2012, 30.10.2012, and 09.11.2012 for cross-examination of PW1. On 09.11.2012, the counsel for the appellant before the Trial Court informed that he had no instructions from the appellant and the same was recorded. In spite of such a statement, in order to give one more opportunity, the matter was adjourned to 17.11.2012. Even on 17.11.2012, the appellant who is the defendant did not choose to appear. Hence, the suit was decreed ex parte on 17.11.2012. The aforesaid facts are not in dispute by both parties. 3. Thereafter, the appellant filed I.A.No.65 of 2013 in O.S.No.48 of 2011 to set aside the ex parte decree. The same was dismissed by order dated 03.09.2013. This appeal is against the aforesaid order date 03.09.2013 made in I.A.No.65 of 2013 in O.S.No.48 of 2011. 4. Learned counsel for the appellant has vehemently contended that since there was no delay in filing the application to set aside the ex parte decree, the Trial Court ought to have allowed the application. He has further submitted that the appeal could be allowed on putting some terms. He suggested that the appeal could be allowed on the cost of Rs.5,000/- and the appellant would co-operate with the disposal of the suit. 5. On the other hand, learned counsel for the respondent/plaintiff has submitted that the Trial Court has considered in detail and gave cogent reasons for rejecting the application. He has submitted that the appellant stated that since he was suffering from Dengu fever, he was not able to attend the Court and therefore, the ex parte decree was passed. 6. According to the learned counsel, even the appellant had stated in the affidavit filed in support of I.A.No.65 of 2013 in O.S.No.48 of 2011 that he was suffering from Dengu fever from 05.11.2012. Hence, there is no reason for his absence on 15.10.2012 and 30.10.2012. 6. According to the learned counsel, even the appellant had stated in the affidavit filed in support of I.A.No.65 of 2013 in O.S.No.48 of 2011 that he was suffering from Dengu fever from 05.11.2012. Hence, there is no reason for his absence on 15.10.2012 and 30.10.2012. On behalf of the appellant, his counsel took time on 15.10.2012 and 30.10.2012 also. 7. Further, the learned counsel for the respondent has submitted that the respondent herein produced three sale deeds dated 08.11.2012, 09.11.2012 and 19.11.2012 respectively executed by the appellant at the office of the Sub Registrar, Dindigul. Since the appellant came to the Office of the Sub Registrar for execution of sale deeds on those occasions, the plea that he was not well due to Dengu fever shall be rejected and the Trial Court considering the aforesaid fact, rejected the application. Hence, this Court need not interfere with the same. 8. I have considered the submission made on either side. 9. The suit was put in the list on 03.10.2012. The respondent herein who is the plaintiff got examined and Exs.A1 to A6 were marked, but the appellant who is the defendant was not ready and at his instance, an adjournment was obtained on 15.10.2012 and on 30.10.2012. Thereafter also, the matter was adjourned to 09.11.2012. On 09.11.2012, the learned counsel for the appellant informed the Trial Court that he has no instructions and the same was recorded. Again, the matter was adjourned to 17.11.2012 to give one more opportunity and only on 17.11.2012, the appellant was set ex parte and an ex parte decree was passed. 10. I have perused the order passed by the Trial Court. The order runs 9 pages. It is a well considered order. The learned Judge has held that the appellant has not produced any document that he took treatment for Dengu fever from 05.11.2012. The Trial Court has held that on the other hand, the respondent herein who is the plaintiff produced three sale deeds dated 08.11.2012, 09.11.2012 and 19.11.2012 respectively executed by the appellant at the office of the Sub Registrar, Dindigul. Hence, the Trial Court came to the conclusion that the reason given by the appellant for his absence could not be believed and the application filed by him to set aside the ex parte decree was rejected. 11. Hence, the Trial Court came to the conclusion that the reason given by the appellant for his absence could not be believed and the application filed by him to set aside the ex parte decree was rejected. 11. The aforesaid narration makes it very clear that the appellant has deliberately remained absent and at one stage, the learned counsel for him reported that he has no instructions. Thereafter, when the ex parte decree was passed, he came with a plea that he was suffering from Dengu fever. He did not produce any proper medical evidence that he was taking treatment from 05.11.2012. On the other hand, the respondent herein who is the plaintiff is able to produce three documents to establish his version. Hence, the Trial Court on facts came to the conclusion that the plea of the appellant deserves to be rejected. I do not find any infirmity in the order passed by the Trial Court.