Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2833 (MAD)

Andal v. Karuppiah

2018-09-10

KRISHNAN RAMASAMY

body2018
ORDER : The present Civil Revision Petition has been filed by the petitioner against the order, dated 29.08.2006, made in I.A.No.273 of 2005 in O.S.No.118 of 2002 on the file of the District Munsif-cum-Magistrate, Andipatty. 2. The petitioner herein as plaintiff filed the suit in O.S.No.118 of 2006 for specific performance. When this matter came up for hearing on 13.08.2003, for filing written statement on behalf of the defendants, they have failed to file the same. Therefore, the matter was adjourned to 25.08.2003. On 25.08.2003 also, the defendants had not filed their written statement. Hence, the defendants were all set exparte and passed the exparte order. Against the order of the exparte decree, the defendants 2 and 4 to 6 have preferred a petition before the Sub Court, Periyakulam, to set aside the exparte order dated 25.08.2003, whereas they have filed the said petition on 03.09.2003, as if that the exparte order was passed on 13.08.2003. 3. In the meantime, the jurisdiction of the present suit was shifted to District Munsif cum Magistrate Court, Andipatty and subsequently, the said application to set aside the exparte was numbered by the Munsif Court, Andipatti, as I.A.No.273 of 2005. The petitioner in the above application pleaded that they have labourers and they have left their villages and settled down temporarily at Kerala for the purpose of employment. Due the said reasons, they were not able to give proper instruction to their advocate. Therefore, they were not in a position to file their written statement in time. Hence they pleaded that the non filing of written statement is neither wilful nor wanton. 4. Per contra, the respondent/plaintiff filed counter stating that the suit was set exparte on 25.08.2003, where as the defendants preferred appeal as if the suit was set exparte on 13.08.2003. Though the Court has given enough time to file their written statement and the matter was adjourned from time to time on several occasions, the defendants failed to file their written statement. That is the reason why, the Court below has passed exparte decree on 25.08.2003. The affidavit for set exparte was signed by the defendants on 25.08.2003, which would go to show that the defendants were in station and with the deliberate intention to drag on the matter only, they have not filed their written statement. That is the reason why, the Court below has passed exparte decree on 25.08.2003. The affidavit for set exparte was signed by the defendants on 25.08.2003, which would go to show that the defendants were in station and with the deliberate intention to drag on the matter only, they have not filed their written statement. Though they have signed in the affidavit on 25.08.2003, the application to set aside the exparte was filed only on 03.09.2003. Therefore, there is no justification to allow the present petition to set aside the exparte order. 5. After considering the pleadings, oral and documentary evidence and the arguments advanced on both sides, the lower Court gave a finding stating that merely due to the clerical mistake that exparte decree date was mentioned wrongly as 13.08.2003 instead of 25.08.2003, the petition to set aside the exparte order cannot be dismissed on this ground alone. Further, the petitioners were not in a position to file their application to set aside the exparte decree due to the reason for their employment in Kerala. Accepting the contentions of the petitioners/defendants, the petition in I.A.No.273 of 2005 in O.S.No.118 of 2002 was allowed with costs. Aggrieved by the above order passed by the Court below, the respondent/plaintiff preferred the present appeal. 6. The learned counsel for the petitioner advanced his arguments highlighting that though the petition to set aside the exparte decree was filed on 03.09.2003, the petition was numbered in the year 2005, this will clearly indicates the deliberate intention of the respondents to drag on the matter. Further, the exparte decree was passed by the Sub Court, Periyakulam and the petition for setting aside the exparte decree was ordered by the District Munsif cum Magistrate, Andipatty. When the higher Court was passed the exparte decree, the present petition to set aside the exparte decree was passed by the inferior Court i.e. District Munsif cum Judicial Magistrate, Andipatti, is not sustainable in law. 7. The learned counsel for the petitioner further argued that the date of exparte order, in petition, was mentioned as 13.08.2003, whereas the original date of exparte order was on 25.08.2003. Consequent to the exparte order, the petitioner herein preferred Execution Petition No.27 of 2004 before the Sub Court, Periakulam and the same was also decreed and due to non filing of the counter in the Execution Petition, the respondents/petitioners/defendants were set exparte. Consequent to the exparte order, the petitioner herein preferred Execution Petition No.27 of 2004 before the Sub Court, Periakulam and the same was also decreed and due to non filing of the counter in the Execution Petition, the respondents/petitioners/defendants were set exparte. Thereafter, an Execution Appeal No.59 of 2005 was filed to set aside the exparte order made in E.P.No.27 of 2004, by the respondents/petitioners/defendants and the same allowed with a condition on payment of cost of Rs.2,000/- on or before 17.10.2005. The judgment debtor failed to pay the cost on or before 17.10.2005. Therefore, the matter was called on 28.10.2005 along with E.A.No.59 of 2005. The said EA was dismissed for non payment of cost even after one month time was given to the judgment debtor. Under such circumstances, the petitioner strongly contended that the order passed by the trial Court in I.A.No.273 of 2005 is liable to be set aside due to the reasons stated above. 8. On the other hand, the learned counsel for the respondents submitted that inadvertently they have mentioned the date of exparte decree as 13.08.2003 instead of 25.08.2003 and they have filed the petition to set aside the exparte order on 03.09.2003 within 30 days from the date of passing the exparte order. The respondents strongly contended that due to the employment of the defendant Nos.2 and 4 to 6 at Kerala, they have left their own home village and therefore, they are not in a position to provide appropriate directions to file their written statement to their counsel. The petition was filed before the Sub Court, Periyakulam, at that time, the said Court was the jurisdictional Court. Subsequently, the said suit was transferred to the District Munsif cum Magistrate, Andipatty and thereafter, the present I.A.No.273 of 2005 also got transferred to the District Munsif cum Magistrate, Andipatty. Therefore, the District Munsif cum Magistrate, Andipatty, has the jurisdiction to decide the present application to set aside the exparte order and accordingly they have proceeded. Therefore, only the District Munsif cum Magistrate, Andipatty, got jurisdiction and not the Sub Court, Periyakulam, by virtue of the shifting of the jurisdiction of the present suit. 9. Therefore, the District Munsif cum Magistrate, Andipatty, has the jurisdiction to decide the present application to set aside the exparte order and accordingly they have proceeded. Therefore, only the District Munsif cum Magistrate, Andipatty, got jurisdiction and not the Sub Court, Periyakulam, by virtue of the shifting of the jurisdiction of the present suit. 9. The learned counsel for the respondents further submitted that though the application was filed on 03.09.2003, it was numbered in the year 2005 due to the shifting of the case from Sub Court, Periyakulam to District Munsif cum Magistrate, Andipatty and the petition was returned from time to time, due to the reason that the delay application to be filed, whereas there is no need for any delay application. Hence, the application to set aside the exparte order was filed well within the time. Therefore, there was no delay in numbering the petition due to the above two reasons. Hence, the present Civil Revision Petition is liable to be dismissed. 10. I have gone through the pleadings and the Judgments passed by the lower Court and the arguments on both sides. 11.This Court finds that the respondents filed the petition to set aside the exparte order in time before the lower Court and also stated the reason for non-filing of the written statement that due to their employment at Kerala. This reason was accepted for non-filing of the written statement in time by the lower Court. Further, with regard to the passing of the inferior Court against the order passed by the Superior Court, this Court cannot accept the arguments of the petitioner due to the reason that the District Munsif cum Magistrate, Andipatty, disposed of the application on the basis of the shifting of the jurisdiction from the Sub Court, Periyakulam. Therefore, the District Munsif cum Magistrate, Andipatty has got the jurisdiction and has rightly disposed of the petition to set aside the exparte order. 12. In view of the reasons stated above, this Court has no hesitation to reject the contentions of the revision petitioner. Further, there is no illegality or irregularity in the order passed by the court below warranting interference by exercising the revisional jurisdiction under Article 227 of the Constitution of India, and therefore, this Court is of the view that the Civil Revision Petition lacks merit. Accordingly, the Civil Revision Petition is dismissed. Further, there is no illegality or irregularity in the order passed by the court below warranting interference by exercising the revisional jurisdiction under Article 227 of the Constitution of India, and therefore, this Court is of the view that the Civil Revision Petition lacks merit. Accordingly, the Civil Revision Petition is dismissed. Further, this Court, taking into consideration of the fact that due to the pendency of the present Civil Revision Petition from 2008, the suit is also not proceeded further for the last ten years, directs the District Munsif cum Magistrate, Andipatty to dispose of the suit in O.S.No.118 of 2002, within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also dismissed.