High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10.12.2007 Coram: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD)No.447 of 2004 and C.M.P.No.3819 of 2004 Parthiban .. Petitioner vs. 1.Girija2.Balasundaram Pillai (2nd respondent is given up as an un-necessary party) .. Respondents PRAYER:Civil Revision Petition filed against the fair and final orderdated 23.07.2003 made in I.A.No.317 of 2002 in O.S.No.73 of 1996 on thefile of the Sub Court, Kallakurichi. For Petitioner : Mr.T.Murugamanickam For Respondent : Mr.P.Jagadeesan for R1 R2 given up O R D E RThe Civil Revision Petitioner is the son of the deceased seconddefendant in O.S.No.73 of 1996 on the file of the Sub Court, Kallakurichi.The first respondent is the plaintiff in the said suit. The CivilRevision Petitioner/Applicant has filed I.A.No.317 of 2002 in O.S.No.73 of1996 praying to condone the delay of 713 days in filing the applicationunder Section 5 of the Limitation Act.2.The Civil Revision Petitioner/deceased second defendant'sson/Applicant in I.A.No.317of 2002 has averred that a decree was passedagainst the first defendant and the second defendant in a suit on pronoteand that O.S.No.74 of 1992 was initially filed in the Sub Court,Virudhachalam and later, it was transferred to the District Court,Villipuram and re-numbered as O.S.No.288 of 1994 and from there, it wastransferred to the Sub Court, Kallakurichi and numbered as O.S.No.73 of1996 and taken on file. It is the case of the Civil RevisionPetitioner/Applicant before the lower Court that the first defendantappeared before the Court and contested the case and a decree was passedon 20.08.1996 against the second defendant and that no notice of summonswas sent to the second defendant either from the District Court, https://hcservices.ecourts.gov.in/hcservices/ Villipuram or from the Sub Court, Kallakurichi and his father was notaware of the facts of the case and that the petitioner was not aware ofthe details of the case and that his father did not receive any letterfrom his advocate and that the Plaintiff's husband met him 4 days beforeand asked him to settle the decree and he came to know all the details ofthe decree only after his visit to the Court and that when the case wastransferred from one Court to another, the Court has sent notice to theparties but no notices were sent either by the District Court, Villipuramor by the Sub Court, Kallakurichi and resultantly, his father did not knowabout the case and that his father expired on 16.09.1998 at Attur and thatthe Plaintiff and the first defendant colluded together and set the firstdefendant exparte and hence, the delay of 713 days in filing Order 9 Rule13 application has to be condoned.3.In the counter filed by the first respondent, it is stated that itis false to allege that the first respondent's husband asked about thedischarge of the decree 4 days prior to the date of filing of theapplication and then only, the Applicant knew about the decree and thatthe decree passed in the present case on 20.08.1996 was not an expartedecree but a decree passed after contest and recording of evidence afterfull trial and therefore, Order 9 Rule 13 petition will not lie and thatthe petitioner can and should file only an appeal and in suchcircumstances, the Application under Order 9 Rule 13 C.P.C is not tenable,the application under Section 5 of the Limitation Act is also notmaintainable.4.It is the stand of the first respondent that the Civil RevisionPetitioner's father who was the second defendant in the suit was dulyserved, had full knowledge of the proceedings and knew about the trial ofthe case and pronouncement of the judgment after fully trial andtherefore, the application is not maintainable and the same is malafideand therefore, the application may be dismissed with costs.5.In the present civil Revision Petition, the second respondentBalasundaram has been given up as an un-necessary party. But, he hasfiled an objection to the I.A.No.317 of 2002 filed by the RevisionPetitioner/Applicant stating that when the Judgment was pronounced on06.09.1996, the applicant's father was alive and he expired on 16.09.1998and till his demise, he did not file any application to set aside thedecree and that the applicant is not a party to the suit and that theapplicant has no loco standi to file the present application and that thedecree was passed after cross-examining the witnesses and therefore, it isnot an exparte decree and that the applicant's father had three daughtersand wife who were alive and who were not arrayed as parties and from thedate of passing of the decree from 06.09.1996 to 29.09.2000 till the dateof filing the Section 5 application, there is a delay of 1460 days and not713 days as mentioned in the application and therefore, the application isto be dismissed.6.The learned Sub Judge, Kallakurichi while dismissing the I.A.No.317of 2002 in O.S.No.73 of 1996 on 23.07.2003 without costs has mentionedclearly that the trial Court passed a decree on 06.09.1996, which was notan exparte decree but a decree after full trial and that on the side ofthe Plaintiff, six documents were marked and one witness was examined andthe witness was also cross-examined and only after hearing the argumentsof respective sides, the judgment was pronounced and the applicant has to https://hcservices.ecourts.gov.in/hcservices/ prefer an appeal against the said judgment and decree and therefore, theapplicant cannot file Section 5 application for condonation of delay.7.As a matter of fact, the learned Sub Judge, Kallakurichi whiledismissing the I.A.No.317 of 2002 in O.S.No.73 of 1996 has further opinedthat the Civil Revision Petitioner/Applicant's father who was the seconddefendant in the suit expired on 16.09.1998 after passing of the Judgmentand Decree on 06.09.1996 and that the applicant's father took up no stepsto prefer an appeal and without filing the L.R. Application and impleadingapplication, the Section 5 application filed by the applicant cannot beallowed since the L.R. Application has to be filed by all the legal heirsfirst and later on, only any application can be filed etc.,8.It is pertinent to point out that from the date of passing of thedecree in O.S.No.73 of 1996 from 06.09.1996 to 29.09.2000 (till the dateof filing second application) there is a delay of 1460 days and not 713days mentioned in the application.9.It is pertinent to point out that in the notes paper of O.S.No.73of 1996 on 08.04.1996, there is an endorsement by the learned Sub Judgethat 'Mr.T.K.L and Mr.M.S. Files vakalat for the plaintiff. D2 alreadyset exparte. Notice to D1 only by 12.06'. On 12.06.1996, D1 was servedand Mr.A.S. Offered to file vakalat for D1 and for filing vakalat, timewas granted by the learned Sub Judge by 09.07.1996 and on 09.07.1996,vakalat for D1 was not filed and therefore, D1 was called absent and setexparte and the matter was posted for evidence by 11.07.1996. On11.07.1996, the matter was directed to be called on 23.07.1996 since therewas Advocates Boycott. On 23.07.1996, when the matter was posted forevidence, a petition to set aside the exparte order was filed and allowedand trial was ordered by 06.08.1996 and on 06.08.1996, the counsels oneither side were not ready and hence, the matter was adjourned to20.08.1996 and on 20.08.1996, Exs.A1 to A6 were filed and no furtherevidence on the side of the Plaintiff was adduced and no further evidenceon the side of the Plaintiff and there was no oral evidence on thedefendant's side and the arguments were heard and the matter was postedfor Judgment by 30.08.1996 and the Judgment was not pronounced on30.08.1996 and the matter was suo moto reopened for arguments by06.09.1996 and on 06.9.1996, the judgment was pronounced by the Courtbelow in O.S.No.73 of 1996 dismissing the suit as against the firstdefendant without costs and the second defendant was directed to pay a sumof Rs.56,056/- and for the principal amount of Rs.28,000/-, interest at12% per annum was ordered to be paid from the date of filing of the suittill the date of payment along with the suit costs. 10.The learned counsel for the Civil Revision Petitioner submitsthat originally the suit O.S.No.74 of 1992 filed at the Sub Court,Virudhachallam after bifurcation was sent to the District Court atVillupuram and it was re-numbered as O.S.No.288 of 1994 and on the pointof jurisdiction, the matter went to the Sub Court, Kallakurichi and gotnumbered as O.S.No.73 of 1996 and the Revision Petitioner's father was notput on notice by the Transferee Court and that the non issuance of noticeto the father of the Civil Revision Petitioner who was the seconddefendant in the suit has resulted in illegality in the present case. https://hcservices.ecourts.gov.in/hcservices/

11.In this connection, it is useful to refer to the decision 1997 (1)M.L.J. 291, KRISHNAMMAL AND ANOTHER V. ARULMIGHU MADANAGOPALASWAMYTEMPLE REPRESENTED BY ITS EXECUTIVE OFFICER, PERAMBALUR, wherein it isobserved as follows:"It is not the duty of the Transferee Court to inform theparties about the transfer when the parties are represented bycounsel before the Transferor Court. In this case, there is nodispute that the parties were represented by respective counselsbefore the Transferor Court. Hence, there is absolutely nonecessity for the issue of fresh summons to the defendants inthe suit."12.In (1992) 2 Law Weekly pg.505, K.JANARTHAN & ANOTHER V. R.THILAKKUMAR, wherein it is observed as follows:-"C.P.C., 0.9. R.13, and Ss.24 and 115, Limitation Act(1963), S.5 and Art. 123, Column 3, and General Clauses Act,S.27, Madras Civil Courts Act (Central Act 7 of 1892), and Practice - Application to set aside ex parte decree -Tendency of litigants to treat ex parte decrees casually and makeat leisure application to set aside, condemned.Adverse inference, held, ought to have been drawn from non-examination of Advocate, to explain about the pleas and as towhy and how they did not give information about transfer ofproceedings from High Court original side to City Civil Court.Plea of failure to issue notice by transferee courtvitiating the proceedings - Plea rejected. Presumption under S.27 of General Clauses Act - Scope -Requirement under Art.123 of Limitation Act to file applicationfor setting aside ex parte decree within 30 days - 'Summons' and'notice', use of the expressions to denote suit and applicationrespectively - Starting point, is date of knowledge of decree.C.P.C., S.24- Transfer of suit from original side of HighCourt to City Civil Court under statutory effect - Notice bytransferee court not necessary - Sec C.P.C., 0.9, R.13, etc.C.P.C., S.115 - Erroneous order of lower court setting asideex parte decree - Interference in revision - Permissibility - Sec0.9, R.13, etc. Limitation Act (1963), S.5 and Art.123, column 3 -Application to set aside ex parte decree - Sec C.P.C., 0.9, R.13and Ss.24 and 115, etc.,Madras Civil Courts Act (Central Act 7 of 1892) - Sec C.P.C.0.9, R.13, and Ss.24 and 115 General Clauses Act, S.27 - Postal acknowledgement, filingof - Presumption - Scope - Sec C.P.C., 0.9, R.13 and Ss.24 ad115. etc.Practice - Tendency of litigants to treat ex parte decreescasually, deprecated. https://hcservices.ecourts.gov.in/hcservices/ Notice to parties by transferee court, not necessary whensuit is transferred from original side of High Court to CityCivil Court under statutory effect-Sec C.P.C., 0.9, R.13, Ss.24and 115, etc.,"13.In view of the above, this Court is of the view that when thelitigants are represented before the Transferror Court, notice to theparties by the Transferee Court is not necessary and that the expartedecree would not be set aside merely because notice was given to thedefendant by the Transferree Court about the transfer of the suit beforeit and therefore, the contention of the learned counsel for the CivilRevision Petitioner that notice ought to have been issued by thetransferree Court is not accepted by this Court.14.Generally, the Courts of law are to adopt a liberal approach whiledealing with the section 5 Application for condonation of delay. Normally,a party does not stand to benefit by filing an application late. Refusingto condone the delay can result in good matter being thrown out at theearly stage and cause of justice being defeated. As against this, thedelay is condoned the highest that can happen is that cause would bedecided on merits after hearing the parties. In condonation of delaymatters, a pedantic approach should not be made. As a matter of fact, whenthe substantial justice and technical considerations are pitted againsteach other, a cause of substantial justice deserves to be preferred in theconsidered opinion of this Court. A party does not stand to benefit byresorting to delay. In fact, he runs a risk.15.As far as the present case is concerned, it transpires from therecords that the decree passed by the learned Sub Judge, Kallakurichi inO.S.NO.73 of 1996 on 06.9.1996 is not an exparte decree and that the saiddecree was passed after examining P.W.1 and marking Exs.A1 to A6 and nofurther evidence was adduced on the side of the plaintiff and that no oralevidence was adduced on the defendant side and the arguments were heard bythe Court below and the judgment was delivered after full trial on06.9.1996. In as much as the judgment delivered in O.S.No.73 of 1996 on06.9.1996 by the Court below was not an exparte decree and since thejudgment was delivered after full trial, this Court is of the consideredopinion that the Civil Revision Petitioner if at all he is so aggrieved isentitled to prefer an appeal and question the same in the manner known tolaw and as such, I.A.No.317 of 2002 filed by him before the lower Court isnot maintainable per se in the eye of law and moreover, the Civil RevisionPetitioner has not explained the exact delay of 1460 days with sufficientcause and therefore, the dismissal of the said I.A.NO.317 of 2002 by theCourt below does not warrant any interference in revision in the hands ofthis Court. https://hcservices.ecourts.gov.in/hcservices/

16.From the above discussions, this Court comes to a conclusion thatthe Civil Revision Petition is liable to be dismissed and accordingly, thesame is dismissed to promote the substantial cause of justice. The orderpassed by the learned Sub Judge, Kallakurichi in I.A.No.317 of 2002 inO.S.No.73 of 1996 dated 23.7.2003 is affirmed. However, the parties aredirected to bear their own costs. The connected miscellaneous petition isclosed.vriSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Subordinate Judge, Kallakurichi.2. The Section Officer, V.R.Section, High Court, Madras.+1 cc to Mr.P.Jagadeesan, Advocate Sr.No.73081.BK(CO)DCP/3.1C.R.P. NPD 447 of 2004