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2016 DIGILAW 845 (MAD)

K. Jeyalakshmi v. R. Pappusamy

2016-03-01

V.M.VELUMANI

body2016
JUDGMENT : This petition is filed against the fair and decretal order dated 27.11.2015 passed in I.A.No.42 of 2015 in O.S.No.74 of 2010 on the file of the learned Principal District Judge, Dindigul. 2. The appellants are the defendants. The respondent is the plaintiff. The respondent filed a Suit in O.S.No.74 of 2010 praying for specific performance in the Suit property. The appellants filed written statement. The trial was commenced and was posted for cross-examination of the respondent on 10.09.2013 as last chance. On that day, the first appellant was suffering from fever and she was not in a position to give instruction to her counsel. Therefore the appellants/defendants were called absent and set ex-parte on 10.09.2013 and subsequently ex-parte decree was passed on 17.09.2013. Therefore they filed an application in I.A.No.42 of 2015 to set aside the ex-parte decree passed on 17.09.2013. The respondent filed counter affidavit and stated that the appellants/defendants entered appearance through their advocate on 02.08.2010 and failed to file their written statement and subsequently they were set ex-parte on 04.12.2010 and an ex-parte decree was passed on 10.01.2011. The respondent/plaintiff filed E..P.No.27 of 2012 for execution of decree. At that time, the appellants/defendants filed petition to set aside the ex-parte decree along with the I.A.No.263 of 2012 to condone the delay of 374 days in filing the application to set aside the ex-parte decree. The said application was allowed. Therefore, the respondent/plaintiff not pressed the execution petition. Thereafter on 24.07.2013, the respondent/plaintiff was examined as PW1 and the Suit was posted for cross-examination by the appellants/defendants. The appellants took seven adjournments. Even after taking seven adjournments from 06.08.2013 to 10.09.2013, they did not cross-examine the PW1. Again an ex-parte decree was passed on 17.09.2013. The respondent filed petition in E.P.No.27 of 2014. In the Execution Petition, the appellant entered appearance through advocate and they did not file any counter in the Execution Petition. In the execution petition, an ex-parte order was passed on 18.12.2014. Thereafter draft sale deed was presented before the Execution Court and the same was approved and subsequent proceedings are pending. At that time, the appellants filed an application to set aside the ex-parte decree, dated 17.09.2013. The same was returned to rectify certain defects and directed the appellants to serve the notice to the respondent/plaintiff. Thereafter draft sale deed was presented before the Execution Court and the same was approved and subsequent proceedings are pending. At that time, the appellants filed an application to set aside the ex-parte decree, dated 17.09.2013. The same was returned to rectify certain defects and directed the appellants to serve the notice to the respondent/plaintiff. The appellants did not represent the same for more than 11 months and no notice was served on the respondent and the appellants have not given any valid and sufficient reason to set aside the ex-parte decree. There are three appellants, when the first appellant was suffering from fever, other two appellants could instructed their advocate for cross-examination of the respondent/plaintiff. Therefore the respondent/plaintiff prayed for dismissal of the I.A.42 of 2015 filed by the appellants to set aside the ex-parte decree. The learned Judge after considering the facts and materials on record, dismissed the application. Against that the appellants have filed present Civil Miscellaneous Appeal. 3. The learned counsel for the appellants contented that the learned Judge erred in holding that the appellants are not interested in contesting the matter. The appellants are ready to conduct their case on merits. The learned Judge ought to have considered their application liberally and allow the same as their valuable right taken away. The learned Judge ought to have given opportunity to put forth their case on merits. 4. The learned counsel for the caveator submitted that on earlier occasion, the Suit was decreed ex-parte. Subsequently, it was set aside on payment of cost. Again ex-parte decree was passed as the appellants failed to cross-examine the respondent, even after taking number of adjournments. The appellants have not represented the application to set aside the ex-parte decree after rectifying the defects pointed out by the Court for more than 11 months. The appellants also not served the notice on the respondent. There is no merit in the contention of the appellants and prayed for dismissal of this Civil Revision Petition. 5. Heard the learned counsel appearing for the appellants as well as the caveator/respondent and perused the materials available on record. 6. From the materials, it is seen that the Suit is for specific performance. The appellants entered appearance and filed their written statement. The appellants did not vigilant enough to conduct the case and the Suit was decreed ex-parte. 5. Heard the learned counsel appearing for the appellants as well as the caveator/respondent and perused the materials available on record. 6. From the materials, it is seen that the Suit is for specific performance. The appellants entered appearance and filed their written statement. The appellants did not vigilant enough to conduct the case and the Suit was decreed ex-parte. Subsequent to set aside the ex-parte decree on payment of cost, again the ex-parte decree was passed as appellants failed to cross-examine the PW1, after taking number of adjournments. The appellants did not follow up the application to set aside the ex-parte decree and the same was not represented for more than 11 months. Meanwhile the respondent filed E.P.No.27 of 2014 for execution of the sale deed through Court. The same is in final stage. The appellants were not vigilant enough to put forth their case and they are trying to prolong the matter further. The appellants have not given as to why other appellants could not contact their advocate to cross examine PW1, while the first appellant was suffering from fever. In the circumstances, the contention of the learned counsel for the caveator that the appellants have not given any sufficient and valid reason to set aside the ex-parte decree and they are trying to prolong the case is acceptable. 7. There is no doubt that the Court must liberally consider the application to set aside the ex-parte order or decree. Since the litigant must be given opportunity to put forth their case. At the same time interest of parties should be bona fide. The learned Judge has considered all these aspects and dismissed the application. There is no irregularity or illegality in the said order warranting interference of this Court. Hence, this Civil Revision Petition is liable to be dismissed. 8. Accordingly, this Civil Miscellaneous Appeal is dismissed. No Costs. Consequently connected Miscellaneous Petition is closed.