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2019 DIGILAW 9 (MAD)

Chokkalingam v. Thilshath

2019-01-02

T.RAVINDRAN

body2019
ORDER : The civil revision petition is directed against the fair and decreetal orders, dated 06.07.2009, passed in I.A.No.140 of 2009 in O.S.No.295 of 2007, on the file of the Principal Subordinate Court, Thiruchirappalli. 2. The suit, in O.S.No.295 of 2007, has been laid by the revision petitioner for recovery of money against the respondent/defendant. The respondent has been set ex parte in the suit for not filing the written statement and consequently, an ex parte decree had been passed against her on 22.02.2008 and seeking to set aside the ex parte decree passed against her in the suit, the respondent had come forward with an application, under Order IX Rule 13 of the Code of Civil Procedure and as there occurred a delay of 330 days in preferring the application, to condone the same, she had preferred I.A.No.140 of 2009. 3. The reason given by the respondent for the condonation of the delay is that on account of her health condition, she was unable to meet the Advocate and file the written statement and as the Advocate also not properly represented the matter, she had been set exparte and her counsel had earlier preferred an application to set aside the ex parte decree, however, not averred proper reasons and accordingly, on being advised by the Advocate to file a proper affidavit, she has been necessitated to prefer the present application and as the delay had occurred, to condone the same, she has come forward with the application for the condonation of the delay. 4. The revision petitioner resisted the abovesaid application of the respondent contending that no proper cause has been adduced by the respondent for the condonation of the delay and the respondent had earlier preferred an application in I.A.No.337 of 2008 for the same cause and on the revision petitioner opposing the same by filing a counter, the respondent did not prosecute the same and has come forward with the present application and the alleged cause of illness projected by the respondent for the passing of the ex parte decree is not true and not supported by any material and only with a view to deprive the revision petitioner from realizing the fruits of the decree, the respondent is delaying the matter endlessly and therefore, the application is liable to be dismissed. 5. 5. The Court below has deemed it fit to entertain the abovesaid application of the respondent on costs. Aggrieved over the same, the present civil revision petition has been laid. 6. The revision petitioner is the plaintiff and the respondent is the defendant. The respondent had been set ex parte in the suit. Seeking to set aside the ex parte decree, the respondent preferred the application. However, as there occurred the delay of 330 days in preferring the same, to condone the said delay, the abovesaid application has been preferred by the respondent. The only reason given by the respondent for the delay is that on account of her illness, she was unable to meet her Advocate for filing written statement and consequently, as she had not filed the written statement, she was set ex parte. However, with reference to the alleged cause of illness projected by the respondent, there is no proof whatsoever placed on record, particularly, when the alleged cause had been challenged by the revision petitioner, in toto, it is for the respondent to place convincing proof to sustain her alleged cause. On the other hand, no material whatsoever has been placed by the respondent as to why she had not endeavoured to file the written statement in the suit. It is not the case of the respondent that she is not aware of the posting of the case for filing her written statement, in such view of the matter, without any proof or material to say that on account of her illness, she was unable to contact her Advocate and thereby, not filed the written statement, as such, cannot be readily countenanced. 7. In addition to that when it is noted that the respondent had already moved an application, in I.A.No.337 of 2008, for the same relief and when the said application had been resisted by the revision petitioner, as admitted by the respondent herself, the said application had been left not prosecuted. Now, according to the respondent, inasmuch as her counsel has not given proper reason in the said application, she had not prosecuted the same and on advice, she had come forward with the present application. Now, according to the respondent, inasmuch as her counsel has not given proper reason in the said application, she had not prosecuted the same and on advice, she had come forward with the present application. Therefore, even as per the admitted case of the respondent, when it is noted that she is very well aware of the ex parte decree passed against her at the earliest point of time, still not endeavoured to present the application properly to set aside the same. Admittedly, her earlier application in I.A.No.337 of 2008 has been not prosecuted properly. In such view of the matter, it does not stand to the reason as to how the respondent would be entitled to maintain the present application for the same cause. As regards the above position, according to the Court below, inasmuch as the respondent had left the earlier application preferred by her as not pressed, the present application cannot be defeated on technicalities and accordingly, the Court below proceeded to entertain the application of the respondent. In this connection, the counsel for the revision petitioner placed reliance upon Section 141 of the Code of Civil Procedure and contended that the procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. When as per the explanation appended to Section 141 C.P.C., the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution, accordingly, when applying the same to the present case, when it is noted that the respondent had already moved the Court for the same relief in I.A.No.337 of 2008 and having left the said application to go for dismissal without prosecution and thereafter, had come forward with the same relief by way of the present application, it is found that legally, the present application is found to be not sustainable. 8. 8. Be that as it may, as abovenoted, when the revision petitioner is found to be fully aware of the ex parte decree passed against her much anterior in point of time and thereafter, not even evincing interest to prosecute the matter with reference to the same as abovenoted and the alleged cause of illness projected by her now for the delay is found to be not substantiated with acceptable and reliable materials and the delay is found to be huge and inordinate and by way of condonation of the same, without any proper proof, the revision petitioner is found to be seriously prejudiced and put to loss and hardship, in all, it is seen that the Court below is totally not justified in entertaining the abovesaid application of the respondent on costs, failing to note that the cause projected by the revision petitioner for the condonation of the delay would not constitute sufficient cause as contemplated under Section 5 of the Limitation Act and that the same has also not been established by the respondent, even prima facie, by placing reliable proof and as such, the present application of the respondent is found to be legally not sustainable. 9. For the reasons aforestated, the impugned fair and decreetal orders, dated 06.07.2009, passed in I.A.No.140 of 2009 in O.S.No.295 of 2007, on the file of the Principal Subordinate Court, Thiruchirappalli, are set aside and consequently, I.A.No.140 of 2009, preferred by the respondent, is hereby dismissed with costs. 10. Resultantly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.