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2019 DIGILAW 320 (MAD)

M. Jeya v. N. Saber Nisha

2019-01-31

T.RAVINDRAN

body2019
ORDER : 1. The civil revision petition is directed against the fair and decreetal orders, dated 09.06.2010, passed in I.A.No.84 of 2007 in O.S.No.400 of 2004, on the file of the Additional District Munsif Court, Tuticorin. 2. The suit has been laid by petitioner/plaintiff against the respondent/ defendant for specific performance. The respondent had entered appearance through her counsel and also filed the written statement. Thereafter, when the suit had been listed for trial, inasmuch as the respondent had failed to appear in the Court to defend the matter, the ex parte decree had come to be passed against her in the suit. Seeking to set aside the ex parte decree passed against her, the respondent had preferred an application. As there occurred a delay of 372 days in preferring the said application, to condone the said delay, she had preferred I.A.No.84 of 2007. 3. With reference to the delay, according to the respondent, she has admitted that she had entered appearance in the suit on receipt of the summons. According to her, only at the instance of her husband, she has signed the vakalat and handed over the same to him and further, according to her, she being a Muslim woman, only her husband had been looking after the case on her behalf and her husband had informed her that the suit is pending and later as her husband had secured a job at Mumbai and stayed at Mumbai, he informed her that she should meet the counsel on receipt of the communication from the counsel. However, according to the respondent, she had not received any communication from the counsel and thereby, she had not appeared in the Court and accordingly, the ex parte decree had come to be passed against her on 29.11.2004 and furthermore, also stated that in the execution proceedings levied by the petitioner in E.P.No.114 of 2005, she has received the notice and on receipt of the same, she had contacted her husband and in turn her husband had contacted the counsel and the counsel had assured to defend the execution proceedings and accordingly, she did not proceed further in meeting the counsel and contest the execution proceedings and later on 01.01.2006, she came to know about the ex parte decree passed against her when some people came to the suit property to measure the same and accordingly, has come forward with the application, accordingly, stated that the delay had occurred and prayed for the condonation of the delay. 4. The petitioner resisted the above said application preferred by the respondent denying all the averments contained in the application for the delay as false and that they are projected only for the purpose of the case and contended that the respondent is fully aware of the suit proceedings as well as the execution proceedings and therefore, she is estopped from denying knowledge about the ex parte decree passed against her in the above said proceedings and the respondent is guilty of laches and negligence and the respondent's application is not bona fide and therefore, prayed for the dismissal of the application. 5. The Court below, on a consideration of the materials available on record, was pleased to allow the application preferred by the respondent on terms. Challenging the same, the petitioner has come forward with the civil revision petition. 6. The suit has been laid by the petitioner for specific performance against the respondent. Admittedly, it is found that the respondent had entered appearance in the suit through her counsel and though the respondent would state that only her husband had been conducting the case on her behalf, the fact remains that the respondent had knowledge of the suit proceedings and accordingly, also filed the written statement in the suit to defend the matter. Admittedly, it is found that the respondent had entered appearance in the suit through her counsel and though the respondent would state that only her husband had been conducting the case on her behalf, the fact remains that the respondent had knowledge of the suit proceedings and accordingly, also filed the written statement in the suit to defend the matter. It is found that when the suit had been listed for trial, the respondent having not appeared, accordingly, the ex parte decree had come to be passed in the matter in favour of the petitioner. Seeking to set aside the same, the respondent had preferred an application. As there occurred a delay of 372 days in preferring the said application, to condone the said delay, she has come forward with I.A.No.84 of 2007. As regards the delay, according to the respondent, the suit had been defended by her only through her husband as she being a Muslim woman and subsequently, as her husband had got employment at Mumbai, he had informed the respondent to contact her counsel on receipt of the communication and as the respondent had not received any communication from the counsel, she had not appeared in the Court and thereby, the ex parte decree had come to be passed against her. Furthermore, the respondent had also admitted that she has received notice in the execution proceedings laid by the petitioner and thereafter, contacted her husband and her husband in turn informed the same to the counsel, who had assured to defend the execution proceedings and accordingly, pleaded that due to innocence and illiteracy, the ex parte decree had been passed and put-forth the case that only on 01.01.2006, she came to know about the ex parte decree passed in the matter and thereby, the delay had occurred. The above said reasons projected by the respondent are stoutly challenged by the petitioner as false and contended that they are projected only for the purpose of the case and the respondent is fully aware of the ex parte decree passed in the suit as well as in the execution proceedings and despite the same, she has not been diligent and careful in defending the matter and therefore, no indulgence should be shown to the respondent and accordingly, prayed for the dismissal of the application. 7. 7. Inasmuch as the reasons projected by the respondent for the delay are being stoutly refuted by the petitioner, it is found that the respondent should have placed, at least prima facie, materials to substantiate the cause pleaded by her for the delay. However, absolutely, there is no material either oral or documentary placed by the respondent with reference to the cause pleaded by her. Even the Court below had determined that the respondent had failed to substantiate the delay by placing acceptable and reliable materials. In such view of the matter, it is found that the respondent has failed to establish the cause or reason projected by her for the delay and accordingly, when the above said cause / reasons are being seriously challenged by the petitioner, on the failure of the respondent to substantiate the same with acceptable and reliable materials, the Court below should have proceeded to dismiss the application preferred by the respondent. However, without any rhyme or reason, it is found that the Court below had proceeded to entertain the application preferred by the respondent on terms, on the footing that the respondent should be afforded an opportunity to defend the matter once again. However, as rightly put-forth by the petitioner's counsel, when on the basis of the materials available on record, when particularly the respondent has admitted that she has received the notice in the execution proceedings in E.P.No.114 of 2005, her case that she came to know about the ex parte decree only on 01.01.2006, as such, is found to be false and it is thus found that the respondent is fully aware of the ex parte decree passed against her in the suit much earlier. That apart when the respondent has entered appearance through her counsel, even assuming for the sake of argument that her husband had been to Mumbai on account of his avocation, the respondent should have endeavoured to contact her counsel to know about the stage of the case diligently and proceeded to defend the matter in the manner known to law and on the other hand, the conduct of the respondent in leaving the matter without evincing any interest to contact her counsel as regards the stage of the case would only go to expose that the respondent is not serious in contesting the suit and accordingly, left the suit to go ex parte as well as the execution proceedings also to proceed ex parte and in such view of the matter, in my considered opinion, the reasonings of the Court below in proceeding to allow the application on terms are not sustainable as per law and accordingly, the same are liable to be set aside. 8. The delay involved in the matter is huge and inordinate and in such view of the matter, it is for the respondent, who should substantiate the reasons projected with reference to the delay and the respondent having failed to place any material whatsoever and even not endeavoured to examine her in the matter, in the light of the above position, the impugned order of the Court below is liable to be struck down and accordingly, the same is set aside. 9. The petitioner's counsel, in support of his contentions, placed reliance upon the decision in Vellaithai and others vs. V. Duraisami, reported in (2010) 1 MLJ 1092 . The principles of law outlined in the above-cited decision are taken into consideration and followed as applicable to the case at hand. 10. For the reasons afore stated, the impugned dated 09.06.2010, passed in I.A.No.84 of 2007 in O.S.No.400 of 2004, on the file of the Additional District Munsif Court, Tuticorin, is set aside and resultantly, I.A.No.84 of 2007 in O.S.No.400 of 2004 laid by the respondent is hereby dismissed. Accordingly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.