IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.09.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD.No.1051 of 2009 and M.P.No.1 of 2009 S.Mangaiyarkarasi ... Petitioner Vs. M.Narayanan ... Respondent PRAYER: This Civil Revision Petition has been filed for seeking to set aside the petition and order dated 10.08.2006 made in I.A.No.70 of 2006 in O.S.No.81 of 2001 on the file of the Additional District Court / Fast Tract Court No.I, Erode. For Petitioner : Mr.N.Manoharan For Respondent : Mr.V.Lakshminarayanan O R D E R
This Civil Revision Petition has been filed against the order passed by the lower Court in I.A.No. 70 of 2006 in O.S.No.81 of 2001 dated 10.08.2006, on the file of Additional District Court / Fast Track Court No.I, Erode.
2. Heard Mr.N.Manoharan, the learned counsel for the revision petitioner and Mr.V.Lakshminarayanan, the learned counsel for the respondent.
3. The learned counsel for the petitioner would submit in his argument that the order passed by the Court below has directed to deposit 50% of the decree amount even at the stage of condonation of delay in filing an application under order 9 Rule 13 of CPC which is not justifiable, but is prejudicial to the petitioner. He would further submit in his argument that the condition imposed by the lower Court below is un-reasonable. He would submit in his argument that the direction to deposit of 50 % of the suit claim is an onerous condition and it would be amounting to pre-determination of the case. He would further submit in his argument that the lower Court ought to have accepted the circumstances that would prevent the petitioner from non-appearing before the Court on 08.02.2002, which was due to his ill health and it would be sufficient to condone the delay or to set aside the ex parte decree. He would further submit that the petitioner should have been allowed to contest the case on merits. He would also draw that attention of the Court to the provisions of Order 9 Rule 13 of CPC that he has to show to the Court either he was not duly served with summons or was he prevented by sufficient cause from appearing before the Court on the particular hearing date. He would also submit that the sufficient cause was explained by him by saying that the petitioner was affected by diabetic and high blood pressure and was bed ridden and hence, he could not attend the Court on 08.02.2002 and therefore, the lower Court should have allowed the application with justifiable costs. He would draw the attention of the Court to a judgment of this Court made and reported in (2007) 5 CTC 198 in between D.K.Bhaskaran and another v. Barton Trust and another. He would also submit in his argument that he is ready to deposit the entire suit claim and an opportunity may be given to the petitioner to have a contest in the decree. He would therefore, request the Court to interfere and set aside the onerous condition imposed by the Court below for condoning the delay in filing the application to set aside the exparte decree and thus, the revision may be allowed.
4. The learned counsel for the respondent would submit in his argument that the respondent filed the suit against the petitioner on the foot of a promissory note and it was decreed and the petitioner/defendant had not filed any application to set aside the exparte decree within time and the reason averred for the non-appearance on 08.02.2002 was due to diabetic and high blood pressure, which cannot be sustained in law, when he was represented through counsel, the said fact could have been made known to Court by filing an application to adjourn the case, but it was done so. He would therefore, submit that the absence of the petitioner/defendant on 08.02.2002 was deliberately willful and wanton. He would further submit in his argument that there is no dispute with the ‘ratio decidendi’ laid down by this Court in 2007 (5) CTC 198 but it is applicable only for the application filed under Order 9 Rule 13 of CPC. For a fact the petitioner ought to have explained the cause of each and every day’s delay and he has not attempted to do so. Therefore, he would submit that this would go a long way to show that the petitioner was lethargic in defending the suit. Moreover, he would also submit that the execution proceedings have been launched and the property belonging to the petitioner was brought to sale and it was sold in Court auction and the sale certificate has also been issued and decree amount was also realised and there is no reason for petitioner to contest the decree even after these proceedings were held to the knowledge of the petitioner. He would further submit in his argument that the petitioner was not only lethargic but also a defaulty person since he did not comply with the directions for which he would offer to deposit the entire suit claim of directed by the Court. Yet another CRP was filed by the petitioner against the final order passed by the lower Court in CRP No.3808 of 2007, and it was dismissed on 10.12.2008. He would further submit in his argument that even though the said CRP was dismissed on technical reasons, the petitioner did not come forward with any positive answer in the application to extend the time for payment of the said cost or by putting forth an offer to pay the entire suit claim. He would further submit in his argument that having left the CRP dismissed against the final order passed in the said application in I.A.No.70 of 2006, the present revision against the preliminary order dated 10.08.2006, is also not maintainable, in view of the confirmation of the final order. He would therefore, request the Court to dismiss the revision petition.
5. I have given anxious thoughts to the arguments advanced on either side. The only point stressed in this revision by the petitioner is that the condition imposed was onerous and it could not be complied with. Therefore, he has preferred CRP No.3808 of 2008 to set aside the final order passed by the lower Court. The said CRP was already dismissed by this Court. It is not disputed that there was no appeal filed against the said order and it has became final. However, the lower Court, while discussing the plea of the petitioner, it has rejected the reason submitted by the petitioner, but however, it has passed an order with a condition to allow the application, directing the petitioner to deposit 50% of the decree amount into Court. Admittedly, the said condition was not complied with. The present revision has been filed against the preliminary order dated 10.08.2006. In view of the earlier order passed by this Court, this revision petition cannot be sustained. However, considering that it did not cover the preliminary order, the reasons put forth by the petitioner was that he was a diabetic patient and was having High blood pressure and therefore, he could not be present on 08.02.2002 before Court. Admittedly, no application for adjournment of the case was filed even though the petition was represented through counsel. No doubt an exparte decree was passed on that day. However, he did not file an application to set aside the exparte decree within the period as required under law. He had filed the application to condone the delay of 750 days in filing such application in I.A.No.70 of 2006. No doubt, the proposition of law as contemplated in (2007) 5 CTC 198 in between D.K.Bhaskaran and another v. Barton Trust and another , is a good law. As far as the present case is concerned, it is an application to condone the delay of 750 days filed under Section 5 of Limitation Act. The consideration for allowing the application would be that why the petitioner could not file an application to set aside the exparte decree, during the period of delay has to be explained. The reason attributed by the petitioner was only his illness namely diabetic and high blood pressure. Indisputably, he was represented by a counsel and no application for adjournment has been fixed for postponing the trial, nor any allegation has been made to the effect that this counsel did not inform the stage and postings of the case, thereafter. Therefore, the said reason that he was a diabetic and high blood pressure patient and therefore, he could not attend the Court for such a long period cannot be accepted. The lower Court had correctly come to a conclusion that the reasons assigned for condoning the delay are not sufficient to pass any order in favour of the petitioner. However, it had decided to allow the application on deposit of 50% of the decree amount. The said opportunity was also not availed by the revision petitioner and therefore, this Court is also helpless to do anything contrary to the decision reached by the Court below.
6. It has been now put forth on the side of the petitioner that the petitioner is ready to deposit the entire suit claim as a condition precedent to allow the revision. By virtue of the submission made by the learned counsel for the petitioner, the very argument that the condition imposed against the petitioner as onerous is also diluted. It is also brought to the notice of the Court that the execution was launched against the petitioner and the property was also brought on sale and the sale was effected, concluded and the auction purchaser was granted with sale certificate and he took possession and the sale proceeds were deposited to the credit of the execution petition and the respondent as decree holder has realised the decree amount and E.P., was also terminated. In these circumstances, the argument containing offer to deposit the entire suit claim is not feasible. Therefore, there is no reason for this Court to interfere with the order passed by the Court below to set aside the said order.
Accordingly, the revision petition is liable to be dismissed with costs. In the result, the revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
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