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Madras High Court · body

2020 DIGILAW 2448 (MAD)

. v. .

2020-12-21

R.N.MANJULA

body2020
JUDGMENT : 1. This application is filed to set aside the order passed in A.No.6201 of 2014 in A.No.6438 of 2013, dated 11.03.2015 and thereby allow the application to receive the better affidavit. 2. The applicant is the defendant and respondent is the plaintiff in the above application. The applicant has filed A.No.6201 of 2014 for the purpose of receiving a better affidavit pertaining to his petition to set aside the exparte decree in A.No.6438 of 2013. The respondent/plaintiff has also filed his counter for the application in A.No.6201 of 2014 and objected that the better affidavit proposed to be submitted by the applicant/defendant for the A.No.6438 of 2013 should not be allowed. The suit itself is a summary suit filed by the respondent/plaintiff for recovery of money. Since the defendant did not file any application to seek leave to defend the suit, within the prescribed time he was set ex-parte and an ex-parte decree was passed on 19.11.2013. 3. Having aggrieved by the ex-parte decree, the applicant/defendant has filed an application to set aside the ex-parte decree along with an application to condone the delay. Before getting the exparte decree set aside, the applicant has also filed an application for leave to defend the suit. All these applications were pending for enquiry. During that course, the applicant/defendant has filed another application before the Master Court in A.No.6201 of 2014 to receive better affidavit for his application No.6438 of 2013 (application to set aside the exparte decree). The Master Court dismissed the said petition on the ground that the applicant/defendant just tried to fill up the lacuna after receiving the counter of the respondent/plaintiff in A.No.6438 of 2013 and if the applicant/defendant allowed to file better affidavit, then the respondent/plaintiff should also be given with the opportunity to file his better affidavit and that would lead to endlessness for the proceedings. 4. The learned counsel for the respondent submitted that the Applicant can not challenge the order of the Master before this Court. The reason for such a contention according to the learned counsel for the respondent is that the High Court has delegated its powers to the Master Courts and hence the order of the Master should be treated as the order of this Court itself and over which there can be no appeal or revision. The reason for such a contention according to the learned counsel for the respondent is that the High Court has delegated its powers to the Master Courts and hence the order of the Master should be treated as the order of this Court itself and over which there can be no appeal or revision. In support of his said contention, he cited the judgment of the Division Bench of this Court reported in 2007(4) CTC 161 . In the said case, the Division Bench held as under:- “8...this Court cannot exercise the power of Appeal or Revision against the order of the Master, which is passed by him in the capacity as a delegate of the High Court. It is well settled that ordinarily an Appeal would lie from a lower Authority to the higher Authority and an order passed by the delegate is in exercise of powers given by the delegator and such an order is not appealable or revisable. Therefore, we are inclined to accept the contention of the learned Senior Counsel Mr.Yashod Vardhan that the word 'Appeal' in order 14, Rule 12 is a misnomer, but it is actually a power of review of this Court. Therefore, such an order passed by the Master is not appealable or revisable by the learned Judge under Rule 12. The power conferred under Rule 12 is really in the nature of power of Revision. Consequently, the bar under Section 100-A of the Code of Civil Procedure is not attracted and the Appeal are perfectly maintainable.” 5. As per the above findings of the Division Bench of this court, the review power of this court is not deprived despite a different nomenclature has been adopted in the Rules. So the maintainability of this application can not be disputed. The further submission of the learned counsel for the respondent/plaintiff is that the petitioner/defendant ought to have set out his defence while seeking leave to defend as per Order 37 Rule 3 only. On seeing the said objections, the applicant/plaintiff has filed application to receive a better affidavit in which he has set out his defence. While dismissing the application filed to receive better affidavit, the learned Master has observed that the applicant ought to have pleaded his probable defence in the affidavit filed for his application to set aside the exparte decree. 6. While dismissing the application filed to receive better affidavit, the learned Master has observed that the applicant ought to have pleaded his probable defence in the affidavit filed for his application to set aside the exparte decree. 6. But in fact the applicant is bound to disclose such facts only in the affidavit filed along with the application seeking leave to defend. It seems the learned Master got misdirected himself and made an observation that such facts have to be stated in the affidavit filed with the application to set aside the ex-parte decree. This may be because the petitioner/defendant has chosen to state the facts of his defence in the better affidavit intended to be filed for his to set aside the exparte decree (A.No.6438 of 2013). 7. In order to understand better, Order 37 Rule 3 (5) C.P.C is extracted below:- “(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.” 8. Or.37 R.3 (5) mandates that whenever the defendant intends to contest the summary suit, he has to seek the permission of the Court by way of filing an application along with an affidavit disclosing the facts of his probable defence. Thereafter, it is for the Court to appreciate whether the leave should be granted to the defendant to defend. Or.37 R.3 (5) mandates that whenever the defendant intends to contest the summary suit, he has to seek the permission of the Court by way of filing an application along with an affidavit disclosing the facts of his probable defence. Thereafter, it is for the Court to appreciate whether the leave should be granted to the defendant to defend. The object of the legislation as it appears from the above said condition is that it should be ensured that in summary proceedings, the defendant should not be allowed to protract the proceedings on the basis of some vexatious defence. So, whenever such an application is filed under Order 37 R 3 (5), it should be ensured that such application should accompany an affidavit which should set out the probable defence of the defendant. Only if the affidavit contains such facts, the application to leave itself can be considered as a proper application. If not the application itself should have been treated as an application not in order and it should be returned at the time of scrutiny itself. Had the registry properly scrutinised the petition filed by the applicant for leave to defend it could have been returned for want of a proper affidavit as prescribed under Or. 37 Rule 3(5). Had it been done this proceedings would not have arisen and much time could have been saved. 9. Further, it would have been appropriate if the applicant/defendant had sought leave to file an additional affidavit for his application seeking leave to defend and set out his probable defence in the same. But he has sought the permission of this court to file an improved affidavit (by naming it as “better affidavit”) for his petition to set aside the exparte decree. However, the affidavit containing the facts of probable defence of the defendant is not necessary for the application filed to set aside the exparte decree. So the whole exercise is a futile one. In this background, setting aside the order of the Master for not allowing the petitioner to receive his better affidavit is not going to serve any purpose. 10. In view of these reasons, the matter is ordered to be posted before the Additional Master II on 07.01.2021 for enabling the parties to contest the application to set aside the exparte decree after the disposal of the petition to condone the delay if any. 10. In view of these reasons, the matter is ordered to be posted before the Additional Master II on 07.01.2021 for enabling the parties to contest the application to set aside the exparte decree after the disposal of the petition to condone the delay if any. If this applicant gets a favourable order in his application to set aside the exparte decree, thereafter he can file an application to receive additional affidavit containing his probable defence for canvassing his application for seeking leave to defend. In that event the learned Master is directed to appreciate the said application afresh without getting influenced by his Order A.No.6201 of 2014 and pass orders. However, such a situation would not arise if the applicant is not able to get a favourable order for his application to set aside the exparte decree. 11. Due to the complexity and delay occurred in this case, it is also inevitable to impress that the Registry should also exercise proper caution while scrutinizing the petitions seeking leave to defend and see that those petitions are not numbered if they don’t accompany with a proper affidavit as prescribed under Or 37 Rule 3(5) C.P.C. 12. With these observations this Application is closed. No cost.