N. Natarajan (Died) v. Pillaiyan Kattalai through its Executive Officer, Tirunelveli
2018-11-23
T.RAVINDRAN
body2018
DigiLaw.ai
JUDGMENT : 1. The civil revision petition is directed against the fair and decreetal orders, dated 27.07.2006, passed in C.M.A.No.11 of 2006, on the file of the I Additional Subordinate Court, Tirunelveli, confirming the fair and decreetal orders, dated 25.10.2005, passed in I.A.No.507 of 2005 in O.S.No.601 of 2004, on the file of the II Additional District Munsif, Tirunelveli. 2. The respondent / plaintiff has laid the suit against the petitioner / defendant for recovery of possession and arrears of rent. After the closure of the plaintiff's evidence, it is seen that the petitioner was examined as D.W.1 in chief and thereafter, the matter stood adjourned for cross-examination and according to the petitioner, as he was suffering from chronic ulcer and unable to move about and consequently, taking treatment, it is stated that the petitioner was unable to attend the Court on 04.03.2005 and thereafter, when the suit was adjourned to 07.03.2005 for the cross-examination of the petitioner and on that day, as the petitioner did not turn up, it is stated that the petitioner had been set ex parte and consequently, the ex parte decree had come to be passed against the petitioner and to set aside the same, it is seen that the petitioner had preferred the application in I.A.No.507 of 2005 under Order IX Rule 13 C.P.C. 3. The above said application laid by the petitioner has been resisted by the respondent / plaintiff contending that the decree passed in the suit cannot termed as an ex parte decree and furthermore, it is also stated that the cause adduced by the petitioner for his absence on 04.03.2005 and the subsequent hearing dates is false and it is false to state that the petitioner has been suffering from chronic ulcer and taking treatment and thereby, he was unable to attend the Court during the relevant dates and with reference to the same, the petitioner has not given any clear particulars and the petitioner, in order to squat in the suit property without paying any rent, it is stated that he has come forward with false case as if he was unable to attend the Court on 04.03.2005 as well as the other hearing dates due to illness and hence, it is stated that the application is liable to be dismissed. 4.
4. Based on the rival contentions put forth by the parties, the Courts below were pleased to dismiss the application preferred by the petitioner. Aggrieved over the same, the present civil revision petition has been filed. 5. Suffice to state the suit has been laid by the respondent / plaintiff for recovery of possession and arrears of rent. The matter stood adjourned for the petitioner / defendant's evidence, after the closure of the plaintiff's evidence. As could be seen from the materials available on record, the petitioner had been examined as D.W.1 on 25.02.2005 and thereafter, the matter stood adjourned for his cross-examination on 01.03.2005. As the petitioner did not turn up on 01.03.2005, the matter stood adjourned to 04.03.2005, on that day, it is seen that petitioner's counsel had presented an adjournment petition and based on the same, it is found that the matter stood adjourned to 07.03.2005 finally for the cross-examination of the petitioner. On that day, inasmuch as the petitioner did not turn up and as the request for adjournment made by the counsel appearing for the petitioner was negatived, resultantly, the petitioner was set ex parte and the ex parte decree had come to be passed against the petitioner. Seeking to set aside the same, the application has been preferred by the petitioner under Order IX Rule 13 C.P.C. 6. No doubt, the petitioner has filed the application under Order IX Rule 13 C.P.C. in time. But, that by itself would not be the criterion for entertaining the said application. On a reading of Order IX Rule 13 C.P.C., it is noted that in any case in which a decree is passed ex parte against the defendant, he may apply to the Court to set aside the same which had passed the decree and if he is able to satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called for hearing, it is found that the Court shall make an order setting aside the ex parte decree upon such terms as to costs as the Court may deem fit and necessary in the facts and circumstances of the case. Therefore, it has to be seen whether the petitioner has adduced sufficient cause for his non-appearance on the hearing dates, when the matter stood adjourned for his cross-examination. 7.
Therefore, it has to be seen whether the petitioner has adduced sufficient cause for his non-appearance on the hearing dates, when the matter stood adjourned for his cross-examination. 7. The petitioner has pleaded illness for his non-appearance on the relevant hearing dates. Now, according to the petitioner, as he had been suffering from chronic ulcer from 04.03.2005, he was unable to attend the Court on 04.03.2005 as well as on the next hearing date on 07.03.2005 and hence, it is pleaded that the above said cause should have been accepted by the Courts below and the Courts below should have provided opportunity to the petitioner to contest the case on merits. With reference to the above said cause projected by the petitioner, the same has been termed as a false cause by the respondent and according to the respondent, only with a view to squat in the suit property, without paying rent whatsoever, the petitioner had been delaying the proceedings one way or the other without any sufficient reason and hence, according to the respondent / plaintiff, the application preferred by the petitioner deserves rejection. 8. In the light of the position of law provided under Order IX Rule 13 C.P.C., it has to be seen whether the petitioner has adduced sufficient cause for his non-appearance on the relevant hearing dates and whether, he has established the same at least prima facie for enabling him to have the ex parte decree passed against him set aside. 9. As above noted, the only reason given by the petitioner for his absence on the hearing dates is that he was suffering from acute peptic ulcer and he had been taking treatment with reference to the same. With reference to the above said cause projected by him, the petitioner has not chosen to adduce any oral evidence on his behalf. On the other hand, it is noted that along with the petition, a medical certificate has been enclosed by the petitioner and in the said medical certificate, it has been certified by the concerned Doctor that the petitioner has been suffering from peptic ulcer and accordingly, he was advised to take complete rest from 04.03.2005 till 19.03.2005. The above said medical certificate is now relied upon by the petitioner for his alleged illness during the relevant hearing dates.
The above said medical certificate is now relied upon by the petitioner for his alleged illness during the relevant hearing dates. To substantiate the above said medical certificate, for the reasons best known to him, the petitioner had not chosen to examine the Doctor concerned, who had issued the certificate. Be that as it may, whether the above said certificate can be taken at its face value for accepting the case of the petitioner. As found by the Courts below, when the matter stood adjourned to 04.03.2005 for the cross-examination of the petitioner, it is found that on his behalf, his Advocate has preferred an adjournment petition and in the said adjournment petition, the reason given for the petitioner's non-appearance is that as he was proceeding to attend Kumbabishekam Festival in his native place, he was unable to be present before the Court below on the relevant date. Therefore, as rightly found by the Courts below, considering the reason given by the petitioner for his non-appearance on 04.03.2005 in the adjournment petition filed by his Advocate on his behalf, when it is noted that a complete different reason had been adduced by the petitioner with reference to the same, as rightly determined by the Courts below, the plea of illness now projected by the petitioner for his absence on 04.03.2005 and the subsequent hearing dates, is found to be a false reason. To extricate himself from the above said inconsistency, the petitioner would also go to the extent of contending that the Advocate, who had filed the adjournment petition, has preferred the same, without taking proper instruction from him. This would only go to show the conduct of the petitioner in stooping down to a low level to escape from the consequences and thereby, it is seen that he has chosen to disown his statement by engaging a new counsel to defend his case before the Court below.
This would only go to show the conduct of the petitioner in stooping down to a low level to escape from the consequences and thereby, it is seen that he has chosen to disown his statement by engaging a new counsel to defend his case before the Court below. Therefore, when the reason given by the petitioner in the adjournment petition is found to be totally not connected with the reason given by the petitioner in the present application, the Courts below are wholly justified in coming to the conclusion that the petitioner had given only a false cause for his non-appearance on the relevant hearing dates and accordingly and also rightly disbelieved the said cause projected by the petitioner and in such view of the matter, I do not find any infirmity in the determination of the Courts below to disbelieve the cause of illness projected by the petitioner for his absence on the relevant hearing dates and holding that the same has been falsely given by the petitioner for the purpose of stalling the proceedings one way or the other endlessly. 10. In the light of the above said factors, when as per Order IX Rule 13 C.P.C., only on sufficient cause being shown, the defendant would be entitled to get the ex parte decree passed against him set aside and insofar as this case is concerned, as above discussed and rightly determined by the Courts below, when the alleged cause projected by the petitioner is found to be a false cause and the alleged cause is also not substantiated or established at least prima facie by placing acceptable and reliable materials and on the other hand, when the alleged cause is found to be totally at variance with the reason given by the petitioner in the adjournment petition preferred by him on the date of hearing, in toto, the same would only go to expose that the sole aim of the petitioner is to drag on the proceedings endlessly so as to squat in the suit property belonging to the respondent / plaintiff, without paying rent and thereby deprive the respondent / plaintiff from obtaining the possession of the suit property as well as the other reliefs to which it is entitled to. 11.
11. In the light of the above position, the mere factor that the petitioner has preferred the application in time, that by itself, would not be sufficient ground for entertaining his application straightaway, particularly when the petitioner is found to have projected a false cause with reference to the same. 12. For the reasons aforestated, I do not find any infirmity in the fair and decreetal orders of the Courts below and resultantly, the civil revision petition is found to be devoid of merits and it is accordingly dismissed with costs. Consequently, connected miscellaneous petitions are closed.