BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/04/2009 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.504 OF 2009 1. Ramalingam Asari 2. Ganapathy Raman 3. Kailasa Nathan 4. Venkatasubramanian ... Petitioners Vs Pitchiah ... Respondent Petition filed under Section 227 of the Constitution of India against the order dated 22/10/2008 passed in C.M.A.No.1 of 2007 by the Sub-Court, Tenkasi confirming the order dated 17/10/2006 passed in I.A.No.1273 of 2006 in O.S.No.392 of 2004 by the Principal District Munsif, Tenkasi. !For petitioner ... Mr.R.Maheswaran ^ - - - - - :ORDER
The civil revision petitioners/petitioners/D.1 to D.4 have filed this Civil
Revision Petition as against the order dated 22/10/2008 in C.M.A.No.1 of 2007
passed by the learned Sub-Jude, Tenkasi in confirming the order dated 17/10/2006
passed in I.A.No.1273 of 2006 in O.S. No. 392 of 2004 by the learned Principal
District Munsif, Tenkasi.
2. The First Appellate Court while passing orders in C.M.A.No.1 of 2007
on 22/10/2008 has inter alia observed that the revision petitioners/appellants
have already set themselves ex parte for two times and that for the third time,
as against the revision petitioners, an ex parte order has been passed and to
set aside the same, an application has been filed and that the appeal is not to
be allowed in view of the decision of the Honourable Supreme Court in Salem Bar
Association case and consequently, dismissed the appeal, thereby confirming the
order passed by the trial Court in I.A.No.1273 of 2006.
3. The learned counsel for the revision petitioners submit that the
Courts below have not adopted a liberal approach when the revision petitioners
have filed their written statement already and the matter has been listed for
trial and further, that both the Courts have not taken note of the fact that
each case will have to be decided on merits of the matter and there cannot be a
rigid rule in this regard in exercising the power of discretion in regard to the
matter of setting aside the ex parte decree and in fact, the suit claim itself
is not maintainable since the revision petitioners/defendants have received only
consideration for the land sold and not for the excess and therefore, prays for
allowing the Civil Revision Petition in the interest of justice.
4. It is to be noted that the main suit in the present case has been
filed on 30/10/2003 on the file of the learned Principal Judge and later has
been transferred to the file of the learned District Munsif, Tenkasi and taken
on file as O.S.No.392 of 2004 and when the matter has been posted for filing for
written statement at that time, the written statement has not been filed and
therefore, an ex parte order was passed and later to set aside the ex parte
order, an application has been filed which has been allowed later and finally,
the case has been posted for enquiry on 19/7/2004 and the respondent/plaintiff
has been examined and on 21/7/2004, the matter has been posted for cross-
examination and documents have been marked and later, the case has been
adjourned to 21/7/2004 in view of the fact that the Officer has been on leave on
23/7/2004 and again for the purpose of cross-examination, the matter has been
adjourned to 29/7/2004 and once again adjourned to 31/7/2004 for cross-
examination and on 3/8/2004, when the matter has been posted for cross-
examination, the matter has been passed over at the instance of the revision
petitioners/appellants and on 3/8/2004, when the matter has been called after
lunch recess, the revision petitioners have not appeared and they have been set
ex parte. From the above factual details, it is quite evident that the revision
petitioners/appellants/petitioners have been given adequate opportunities of
five days to cross-examine the respondent/plaintiff and they have not availed
the same and suffice it for this Court to point out those opportunities have
remained otiose.
5. It is the further contention of the revision petitioners that a
liberal view has to be taken in regard to setting aside the ex parte decree/ex
parte orders in a Court of law and a pedantic approach need not be adopted.
6. Generally speaking in matters regarding setting aside the ex parte
decree/ex parte order applications, a Court of law can take a liberal view. In
short, a Court of law may not harp on technicalities overriding the cause of
substantial justice being delivered to the parties. The term ‘sufficient cause’
though will have to be normally viewed in a liberal fashion yet on the present
facts and circumstances of the case, this Court is of the considered view that
the revision petitioners/appellants/petitioners have been given five times
adequate opportunities of cross-examining the respondent/plaintiff and they have
not availed of the same. It is needless to say that earlier an application has
been filed to set aside the ex parte order and that has been set aside by the
trial Court. When once again the main suit has been posted for cross-
examination, the appellants/revision petitioners on 3/8/2004 have made a request
to the concerned Court to pass over the matter and after lunch recess, when the
matter has been taken up again by the Court, then at that time also, the
respondents have not appeared and hence, they were set ex parte. Therefore, the
conduct of the revision petitioners/appellants/petitioners clearly points out to
the fact that they are guilty of latches and not diligent enough in conducting
the proceedings before the trial Court.
7. When the petitioners have known the proceedings of the trial Court and
when they have adequate knowledge of the progress of the case before the trial
Court, then they cannot adopt a lackadaisical or laissez-faire attitude in the
considered opinion of this Court.
8. In the light of the detailed discussions mentioned supra and looking
at from any point of view, this Court is of the considered view that the order
passed by the First Appellate Authority in dismissing the Civil Miscellaneous
Appeal No.1 of 2007 and thereby confirming the order passed by the trial Court
in I.A.No.1272 of 2006 does not suffer from any material irregularity or patent
illegality in the eye of law and resultantly, this Court comes to an inevitable
conclusion that there is no merit in the Civil Revision Petition and
consequently, the same is hereby dismissed.
9. In the result, the Civil Revision Petition is dismissed, leaving the
parties to bear their own costs. The order passed by the First Appellate
Authority in C.M.A.No.1 of 2007 is affirmed by the reasons assigned in this
revision.
mvs.
To
1. The Sub-Court, Tenkasi
2. The Principal District Munsif, Tenkasi.
3. The D.R.(Judicial), Madurai Bench of Madras High Court, – to
watch and report