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2017 DIGILAW 2983 (MAD)

S. Savithiri v. Panchuammal

2017-09-01

T.RAVINDRAN

body2017
ORDER : This civil revision petition is directed against the fair and decreetal orders, dated 28.09.2016, passed in I.A.No.268 of 2016 in O.S.No.266 of 2003, on the file of the Sub Court, Pudukkottai. 2. In the suit laid by the petitioner/plaintiff, it is found that the respondents/defendants had been set ex-parte on 16.03.2016 and to set aside the ex-parte order passed against them, the above said application has been preferred by the respondents/defendants under Order 9 Rule 7 of the Code of Civil Procedure. According to the respondents/defendants, the suit had been listed for the cross-examination of the petitioner/plaintiff on 16.03.2016 and on account of their non-appearance, they had been set ex-parte and the failure on the part of the respondents/defendants to appear before the Court below on 16.03.2016 is neither wilful nor wanton and hence, prayed for the setting aside of the ex-parte order passed against them on 16.03.2016. 3. The above said application of the respondents/defendants is resisted by the petitioner/plaintiff contending that the respondents/defendants have already been set ex-parte on 17.10.2003 and consequently, an ex-parte decree has been passed in favour of the petitioner/plaintiff on 21.01.2004 and the said ex-parte decree is still in force and hence, the present application is not maintainable and further, according to the petitioner/plaintiff, pursuant to the ex-parte order obtained, she has levied the execution proceedings and deposited the amount in the Court and obtained the sale deed in her favour and in such view of the matter, the present application laid by the respondents/defendants to set aside the ex-parte order, dated 16.03.2016, is not maintainable and if the same is allowed, the petitioner/plaintiff would be put to great loss and hardship and hence, the application is liable to be dismissed. 4. The Court below, on a consideration of the rival contentions put forth by the respective parties, found it fit to allow the application preferred by the respondents/defendants on terms. Impugning the same, the present civil revision petition has been preferred by the petitioner/plaintiff. 5. 4. The Court below, on a consideration of the rival contentions put forth by the respective parties, found it fit to allow the application preferred by the respondents/defendants on terms. Impugning the same, the present civil revision petition has been preferred by the petitioner/plaintiff. 5. It is mainly contended by the learned counsel appearing for the petitioner/plaintiff that the respondents/defendants had already been set ex-parte and an ex-parte decree had also been passed on 21.01.2004 itself and without setting aside the same, the present application has been laid by the respondents/defendants to set aside the ex-parte order, dated 16.03.2016, which is not maintainable and further, according to the petitioner/plaintiff, no sufficient cause has been given by the respondents/defendants to set aside the ex-parte order, dated 16.03.2016 and only with a view to delay the execution proceedings, the present application has been preferred and hence, the Court below had erred in entertaining the application on terms. Per contra, it is the case of the respondents/defendants that challenging the ex-parte order passed against them in the main suit earlier, the respondents/defendants preferred a civil miscellaneous appeal in C.M.A.No.26 of 2006 and the said civil miscellaneous appeal had been allowed and pursuant to the same, the respondents/defendants have filed their written statement and thereafter, when the matter stood adjourned for the cross-examination of the petitioner/plaintiff, as the respondents/defendants were unable to appear before the Court below on that particular date, they were again set ex-parte and further, according to the respondents/defendants, there is no delay on their part in filing the application and only due to some unavoidable circumstances, they were not able to be present before the Court below on the particular date and hence, the Court, taking into consideration the entire facts and circumstances of the case, chose to allow the application on terms and therefore, the impugned order of the Court below does not require any interference from this Court. 6. The records of the Court below were called for and perused. It is found that pursuant to the ex-parte decree, dated 21.01.2004, further proceedings have been taken in the suit and therefore, it is found that thereafter, the respondents/defendants were allowed to file their written statement, issues were framed and the trial had commenced in the matter. 6. The records of the Court below were called for and perused. It is found that pursuant to the ex-parte decree, dated 21.01.2004, further proceedings have been taken in the suit and therefore, it is found that thereafter, the respondents/defendants were allowed to file their written statement, issues were framed and the trial had commenced in the matter. It is found that at the stage when the matter was listed for the cross-examination of the petitioner/plaintiff on 16.03.2016, as the respondents/defendants did not appear before the Court below and proceed further with the cross-examination of the petitioner/plaintiff, it is found that they had been set ex-parte. Accordingly, it is found that within two days thereafter, the present application has been preferred by the respondents/defendants to set aside the ex-parte order passed against them. No doubt, the respondents/defendants should have been present before the Court below and proceeded further with the cross-examination of the petitioner/plaintiff when the matter had been listed for that purpose by the Court below. 7. In the light of the above position, it is found that the Court below has taken into consideration the facts and circumstances of the case and with a view to enable to the respondents/defendants to contest the matter on merits, thought it fit to allow the application on terms and in such view of the matter, in my considered opinion, the indulgence shown by the Court below do not merit interference. In the interest of justice, I am also of the considered opinion that the respondents/defendants should be provided with an opportunity to contest the matter on merits. 8. In the light of the above discussions, the impugned order of the Court below does not call for any interference from this Court and resultantly, the civil revision petition is dismissed. No costs.