IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.04.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3989 of 2008 and M.P.No.1 of 2008 1.Nandagopal 2.Paramasivam .. Appellants Vs Minor Gayathri .. Respondent rep.by next friend / maternal grandfather G.Manickam @ Venkatrama Chettiar Appeal filed under Order 43 Rule 1(d) of C.P.C., against the Order in I.A.No.1347 of 2005 in O.S.No.6 of 2002, dated 14.08.2007, on the file of the Additional District Court, Fast Track Court-II, Salem. For appellants : Mrs.M.Chithira Gomathi for M/s.M.MD.Ibrahim Ali For respondent : Mr.T.M.Hariharan J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellants/petitioners against the I.A.No.1347 of 2005 in O.S.No.6 of 2002, dated 14.08.2007, on the file of the Additional District Court, Fast Track Court-II, Salem. The appellants have filed an interlocutory application in I.A.No.1347 of 2005 to set aside the ex-parte decree dated 20.09.2005, passed against the appellants in O.S.No.6 of 2002.
2.The appellants/petitioners/defendants have inter alia stated that the said suit in O.S.No.6 of 2002 was posted for trial on 20.09.2005. As the first appellant had been away at Salem Town for his business affairs and had been held up at Coimbatore and as he fell ill, he could not appear before the Court on 20.09.2005. Further, the first appellant submitted that he is alone looking after the case, on behalf of the second appellant also, who is none other than his brother. The appellant also has filed a written statement in the said suit. The non-appearance of the appellants is neither wilful nor wanton but only for the above said bonafide reasons. Hence, they have prayed to set aside the ex-parte decree passed in O.S.No.6 of 2002, dated 20.09.2005.
3.The respondent/plaintiff has filed a counter statement stating that the above set aside application is the second application filed by the appellants with the intention to drag on the proceedings. An earlier application in I.A.No.777 of 2004, dated 08.04.2004 was also made to set aside the ex-parte decree. The same was allowed on 14.11.2004. A similar application in I.A.No.266 of 2002 was also made by the appellant and this was also set aside by the appellant and this was also set aside by the learned Trial Judge on 19.06.2003. The above I.A.No.1347 of 2005 is the third petition made by the appellant to set aside the decree dated 20.09.2005. The same was dismissed on 14.08.2007 by the learned Additional District Judge, Salem.
4.Aggreived by the said dismissal order passed in I.A.No.1347 of 2005, in O.S.No.6 of 2002, the appellants have filed the above appeal to set aside the order dated 14.08.2007.
5.The short facts of the case are as follows:-
The respondent/plaintiff has filed the O.S.No.6 of 2002 for partition and separate possession against the appellants/defendants and has also sought other reliefs. The same was resisted by the appellants by way of filing written statement. The suit was posted on 21.10.2002 for trial. On that day, the appellants/defendants did not appear. Hence, the matter was set ex-parte and the case was posted for hearing on 29.10.2002 for recording ex-parte evidence of the plaintiff. On 28.10.2002, the set aside application was filed by the appellants/defendants. The same was allowed on 19.06.2003. Thereafter, the case was posted for hearing from time to time and finally the case was posted for trial on 08.04.2004. On that day, both the appellants/defendants were called absent and an ex-parte decree was passed. Aggrieved by the ex-parte decree, the appellants/defendants have filed I.A.No.777 of 2004 to set aside the said Order. The same was allowed on 14.11.2004. Again, the case was posted on 20.09.2005 for trial, after several hearings. On that day, the appellants/defendants were called absent. Hence, the matter was set ex-parte. Aggrieved by the said ex-parte decree, the appellants/defendants have filed I.A.No.1347 of 2005 to set aside the ex-parte decree passed in O.S.No.6 of 2002, dated 20.09.2005. The learned Additional District Judge, after perusal of the affidavit of the petitioners, counter statement of the respondent and after hearing arguments advanced by the learned counsel on both sides, dismissed the application stating that the appellant has been given the opportunity twice and on both occasions the set aside applications namely in I.A.No.266 of 2002, dated 19.06.2003 and in I.A.No.777 of 2004, dated 08.04.2004, were allowed. Subsequent to this, the appellants again filed the set aside application in I.A.No.1347 of 2005 to set aside the ex-parte decree dated 20.09.2005. This is the third application. The learned Trial Judge having not been satisfied with the reasons stated in the said set aside application, dismissed the application filed by the appellant.
6.Aggreived by the said order and decreetal order in I.A.No.1347 of 2005, the appellants/defendants have filed the above Civil Miscellaneous Appeal.
7.Learned counsel appearing for the appellants has contended that the learned Judge failed to consider the fact that the petitioners could not be present before the Court due to their illness. It was also contended that the learned Judge erred in granting the decree without adding the mother as a necessary party in the suit, especially when she was taking care of the plaintiff. It was also contended that the learned Judge failed to consider the fact that there was a partition between the brothers and the minor child is entitled to get only a portion of shares allotted to the third defendant/the father of the plaintiff. Hence, the learned counsel prayed for allowing the appeal and to set aside the order dated 14.08.2007, in I.A.No.1347 of 2005. In support of his appeal, the learned counsel has cited the following Judgments made in 2009 (2) CTC 132, High Court of Madras (Madurai Bench), Ponnusamy Poosari and another Vs. Nallan Poosari and 3 others, the relevant head notes of which are as follows:
“Code of Civil Procedure, 1908 (5 of 1908), Order 9, Rule 9 Suit dismissed for default on earlier occasion Suit dismissed for default again Effect of earlier dismissal Whether material relevant for considering an Application to restore Suit No, following ratio in G.P.Srivastava v. R.K. Raizade and others,l 2000 (3) SCC 54, holding “sufficient cause” for non-appearance refers to date on which absence was made a ground for proceeding ex parte and cannot be stretched to rely upon anterior circumstances.
AIR 1993, Supreme Court 1182, Tahil Ram v. Ramchand, the relevant head notes of which are as follows:
“Constitution of India Art.226 Writ Petition Withdrawals of “power” by advocate Client, being absent, not aware of date of hearing Dismissal of petition in default Held, litigant, for no fault of his should not suffer Order of dismissal in default Set aside.
Judgment of single Judge dt. 24-4-74 in Arbitration Petition No.57/72 and of Division Bench dt.5-8-74 of Bombay High Court, Reversed.”
8.Learned counsel appearing for the respondent vehemently argued that the appellants were not willing to face trial ever since 2002. The case was set ex-parte on 21.10.202 and subsequently it was set aside on 19.06.2003 in I.A.No.266 of 2002. Again, the appellants were set-exparte on 08.04.2004. This order also was set aside on 14.11.2004, in I.A.No.777 of 2004. Once again ie.on a third occasion, the appellants were set ex-parte on 20.09.2005. For setting aside the said order, the appellants have filed I.A.No.1347 of 2005. The same was dismissed on 14.08.2007. The learned Judge of the Trial Court has not committed any error in his order and has passed the order on merits. The learned counsel further argued that the appellants/defendants have wantonly and deliberately dragged on the case. Further, the learned counsel pointed out that an Advocate Commissioner had also been appointed for final decree proceedings and that the respondents have also paid the Advocate Commissioner’s remuneration. At this stage, the appeal is not maintainable. The learned counsel, in support of his contentions, has cited the following Judgments made in (1993) 2 Supreme Court Cases 185, Salil Dutta vs. T.M. And M.C.Private Ltd., the relevant head notes of which are as follows:
“Civil Procedure Code, 1908 Or. 9 R.13 Setting aside ex parte decree against defendant Sufficient case of non-appearance by defendant Improper advice of advocate Cannot as a rule be accepted as a sufficient cause It would depend on particular facts and circumstances of the case Suit posted for final hearing seven years after its institution Non-appearance of defendant on the date of final hearing alleged to be on account of advice of advocate Defendant a private limited company having its registered office in the same city and being managed by educated businessmen Defendant’s conduct found to be non-cooperative with the court Held on facts, defendant’s application under R.13 not sustainable.
Legal profession Advocate acts as an agent of the party and his acts cannot be ordinarily disowned Contract Act, 1872, Ss.182, 188.”
(1995) 6 Supreme Court Cases 148, Vijaykumar Durgaprasad Gajbi and Others vs. Kamlabai and Others, the relevant head notes of which are as follows:
“Civil Procedure Code, 1908 Or. 9 R. 13 Application for setting aside ex parte eviction order Whether proper explanation given by appellants for their failure to appear before court No material placed by appellants showing that they were diligently prosecuting the suit On the other hand trial court recording that the appellants, being in actual possession of the suit property, were intending to prolong the matter and that there was no bona fide reason or genuineness for their non-appearance Accordingly trail court dismissing the appellants’ application and High Court in exercise of discretion under S.115 declining to interfere held, in view of the categorical findings of trial court, it was not appropriate case for the Supreme Court to interfere under Art.136 to further prolong the matter Constitution of India, Art.136 Interference denied.”
(2005) 11 Supreme Court Cases 800, P.Mani Moopanar v.s K.Rajammal and Others, the relevant head notes of which are as follows:
“A.Limitation Act, 1963 S. 5 Exercise to be conducted for condonation of delay under held, said exercise is limited to examining sufficiency of cause shown to explain delay Court may not condone delay on taking an overall view of the matter on merits, as erroneously done by High Court in present case Hence, though it was open to High Court to accept explanation given by respondents for condoning the delay, but without setting aside findings of trial court on sufficiency of cause shown, it was not permissible for High Court to enter into merits of the dispute and condone the delay.
B.Civil Procedure Code, 1908 _ Or.9 Rr. 13 & 6 and Or.34 Rr.5 & 4 Ex parte preliminary decree Proceedings to have it set aside Effect of proceedings for final decree having been initiated Respondent defendants bringing application for setting aside of ex parte decree but delayed by seven years, and unable to explain delay However, before Supreme Court respondents expressing willingness to pay amount awarded in preliminary decree Supreme Court permitting respondents to pay the amount in the pending final decree proceedings before trial court.”
(2008) 3 Supreme Court Cases 70, Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, the relevant head notes of which are as follows:
“A.Excise Central Excise Act, 1944 S. 35 Delay Condonation of Before Supreme Court S.5 of Limitation Act also pressed into service Held, provisions of S.35 of the Act would override the provisions of S.5 of Limitation Act Legislative intent assumes importance which required the condonation of delay only up to 30 days for filing an appeal Limitation Limitation Act, 1963, S.5.
B.Excise Central Excise Act, 1944 S. 35 Delay Sufficient cause Meaning of Held, there cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps Explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period Appellant categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal If that is so, the plea that because of lack of experience in business there was delay does not stand to reason Further held, ITC case was decided on its own peculiar facts It does not lay down that Supreme Court can condone the delay even though the statute prescribed a particular period of limitation Limitation Act, 1963 S.5 “Sufficient cause” Meaning.”
Hence, the learned counsel appearing for the respondent has prayed to dismiss the appeal.
9.Considering the facts and circumstances of the case, findings of the Trial Court and arguments advanced by the learned counsel appearing on either side, this Court points out that the suit was set ex parte on 21.10.2002. Subsequently, it was set aside in I.A.No.266 of 2002, on 28.10.2002. Thereafter, once again, the suit was ex-partee on 08.04.2004. This Order also was set aside on 14.11.2004 in I.A.No.777 of 2004. Once again, the suit was set ex-parte on 20.09.2005. Against the ex-parte decree, the appellants have filed I.A.No.1347 of 2005. The same was dismissed by the learned Trial Judge. So, this Court is of the view that the contents of the set aside application in I.A.No.266 of 2002 and I.A.No.777 of 2004 are identical. It clearly proves that the defendants approach, by way of filing the set aside applicants, have not been bonafide. Further, this Court, after scrutiny of the learned Trial Court Judge’s order passed in I.A.No.1347 of 2005, dated 14.08.2007, find that there is no discrepancy in the said order. Further, the case has been posted for final decree proceedings. Further, the guardian of the plaintiff is aged 70 years old and is a senior citizen. So, a speedy trial is required to ensure that the constitutional right of the respondent is met.
10.Therefore, the order and decreetal order passed by the learned Additional District Judge, Fast Track Court No.II, Salem in I.A.No.1347 of 2005 in O.S.No.6 of 2002, dated 14.08.2007 is confirmed.
11.In the result, the above Civil Miscellaneous Appeal is dismissed and the Order and Decreetal Order dated 14.08.2007, in I.A.No.1347 of 2005 in O.S.No.6 of 2002, passed by the Additional District Court, Fast Track Court-II, Salem, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
krk
To
1.The Additional District Court,
Fast Track Court-II, Salem.
2. The Section Officer,
VR Section, High Court,
Madras