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2019 DIGILAW 458 (MAD)

Kaliannan v. A. Kandasamy

2019-02-16

N.SATHISH KUMAR

body2019
JUDGMENT : 1. Revision petition filed against orders passed by the trial court, dismissing the application, filed to condone the delay of 1343 days in filing the application to set aside the exparte decree dated 20.12.2007. 2. The revision petitioner is the defendant in the original suit. The respondent/plaintiff has filed a suit for recovery of a sum of Rs.50,000/- on the basis of the promissory note executed by the defendant. The revision petitioner/defendant denied the execution of the suit promissory note and passing of consideration. He also contended that earlier occasions, he borrowed money from the plaintiff and the same were discharged by him, however, the suit promissory note has been fabricated by the plaintiff for the purpose of the filing the present suit. 3. In the suit, the defendant filed his written statement on 14.03.2002 and thereafter, the suit was dismissed for default on 14.03.2002. It is the contention of the revision petitioner/defendant that, to restore the suit, application had been filed and the same was allowed on 31.10.2007 for non filing of counter. He also contended that, the case bundle was returned to him by his counsel in the year 2002 and hence, he was not informed about the stage of the case by his counsel. His further contention is that, meanwhile, the suit was transferred from the file of the Sub Judge, Sankagiri to the file of the District Munsif, Tiruchengode. According to the revision petitioner, no notice was served on him by the transferee court and only after receipt of notice in the execution petition, he came to know that he was set exparte 11.12.2007 and exparte decree was passed on 20.12.2007. Therefore, there occurred a delay of 1343 days in filing the set aside petition. 4. The contention of the respondent/plaintiff is that, the allegation of the petitioner that immediately after dismissal of the suit for default, he took the bundle from his counsel is false. In fact, the same advocate was continued to appear on behalf of the petitioner and he took notice of hearing of set aside petition and during trial, he also made an endorsement that "with objection" the documents may be marked on the side of the plaintiff. Further, since the defendant had not appeared for several adjournment, he was set exparte, during the course of cross examination of plaintiff side witness and hence the delay cannot be condoned. 5. Further, since the defendant had not appeared for several adjournment, he was set exparte, during the course of cross examination of plaintiff side witness and hence the delay cannot be condoned. 5. After analysing the evidence on record, the trial court dismissed the petition. Against which the revision was came to file. 6. Heard the learned counsel appearing for the revision petitioner as well as the respondent. 7. The learned counsel appearing for the revision petitioner would submit that the petitioner/defendant had promptly filed his written statement and thereafter, the suit was dismissed for default and then restored to file after lapse of 5 years. He would further submit that the suit had been transferred to the District Munsif Court, Tiruchengode, however, no notice was served on him by the transferee court. Therefore, the delay is bonofide and it should be condoned and the petitioner has valid defence to defend the suit and his substantial right cannot be defeated at this stage. 8. Per contra, the learned counsel appearing for the respondent would contend that, the counsel for the petitioner was served notice of hearing and if really the case bundle was returned to the petitioner/defendant, at the time of receiving notice of hearing, the counsel would have made an endorsement to that effect. Hence, the contention of the petitioner that since he took the case bundle from his counsel, he has no knowledge about the exparte decree, cannot be countenanced. His further contention is that the delay has not been properly explained and there is no bonafide reason to condone the delay and hence, he prayed for dismissal of the revision petition. 9. Of course, it is the duty of the petitioner/defendant to explain each and every day delay. Here, the delay is 1343 days in filing the application to set aside the exparte decree. The reasons assigned in the petitioner that after dismissal of the suit for default, he took the bundle from his counsel and the suit was restored to file after 5 years. The fact that the suit was dismissed for default on 14.03.2002 and the suit was restored to file on 27.07.2006 are not disputed by both parties. In the meanwhile, the suit has been transferred from the Sub Court, Sankagiri to the District Munsif Court, Tiruchengode was also not disputed. The fact that the suit was dismissed for default on 14.03.2002 and the suit was restored to file on 27.07.2006 are not disputed by both parties. In the meanwhile, the suit has been transferred from the Sub Court, Sankagiri to the District Munsif Court, Tiruchengode was also not disputed. It is Pertinent to note that, at the time of restoring the suit itself, counter was not filed. It is the contention of the petitioner that counsel had not informed him about the status of the case. The records shows that some counsel took notice of the application to restore the suit and later, during trial he made an endorsement that "with objection" the documents may be marked. Hence, it cannot be said that no notice was served on the petitioner by the transferee court, especially when the same counsel on record was continued to appear on behalf of the petitioner. The above facts clearly indicated the fact that the petitioner was well aware of the case proceedings. 10. Considering these aspects and also having regard to the nature of the defence raised by the defendant in his written statement, I am of the view that liberal approach to be applied in these cases. Though knowledge can be attributed to the petitioner through his counsel, who appeared on behalf of him, in order to establish his substantial right, one more opportunity has to be given to the petitioner to participate in the trial. 11. Accordingly, (i) The order of the trial court will be set aside on payment of cost of Rs.10,000/- by the revision petitioner/defendant to the respondent/plaintiff on or before 7.3.2018, failing which the revision petition shall stand dismissed. (ii) On filing of proof of payment of costs before the trial court by the petitioner, the trial court is directed to dispose the petition under Order IX Rule 13 of the Code of Civil Procedure, within one month, on merit. (iii) In the event of the petition under Order IX Rule 13 is allowed, the trial court is directed to dispose the suit, within three months from the date of setting aside the exparte decree. 12. With the above observations, the Civil Revision Petition is disposed of. No costs. The connected civil miscellaneous petition is closed.