IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13/08/2007
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
CRP. NPD Nos.2279 and 2280 of 2007
and
MP No.1 of 2007
Ambika Ammal .. Petitioner in both revisions
Vs
Ramasamy .. Respondent in both revisions
Civil revision petitions preferred under Article 227 of
the Constitution of India against the orders dated 13.2.2007
passed in I.A.Nos.706 of 2006 and 34 of 2007 in
O.S.No.167/2000 on the file of the District Munsif cum
Judicial Magistrate, Chengam.
For Petitioner : Mr.M.Md.Basha
COMMON ORDER
This order shall govern the above two revision
petitions. They have arisen from the two orders of the
District Munsif cum Judicial Magistrate, Chengam, made in
two applications one in I.A.No.706/2006 to condone the delay
of 547 days in making an application to set aside an ex-
parte decree and the other in I.A.No.34 of 2007 to set aside
that ex-parte decree.
2.The Court heard the learned Counsel for the
petitioner.
3.After hearing the learned Counsel and also looking
into the materials, both the revisions, in the considered
opinion of this Court, do not carry any merit whatsoever.
4.It was a suit for declaration and for other reliefs.
There are number of defendants, out of whom, the third
defendant was the only person contesting the matter.
Written statement was filed by him. Issues were framed.
The matter was posted for trial on 21.3.2005. On that day,
the respondent/3rd defendant did not appear. An ex-parte
decree came to be passed. In order to set it aside, an
application was filed in I.A.No.34 of 2007. While doing so,
there was a delay of 547 days. In order to condone the
delay, an application in I.A.No.706/2006 was filed. Both
the applications were taken up for consideration. As far as
the delay excuse application was concerned, no counter was
filed, and the lower Court considered the reasons therein
and allowed that application. As regards the other
application, the learned Counsel for the plaintiff has made
an endorsement stating that notice may be sent to the party.
The lower Court also took it as counter not filed and
allowed that application also. Hence, these revisions have
arisen at the instance of the plaintiff before this Court.
5.The only contention urged by the learned Counsel for
the petitioner, is that in the instant case, there was no
sufficient cause shown by the respondent herein, even
assuming that there was no counter filed by the revision
petitioner; that in the absence of sufficient cause, the
lower Court should have dismissed the application, when
there was a huge delay of 547 days; that as far as the other
application to set aside the ex-parte decree was concerned,
it was allowed even without notice to the party, and under
the circumstances, both the revisions have got to be ordered
by this Court by setting aside the orders of the Court
below.
6.The Court paid its anxious consideration on the
submissions made and looked into the materials available.
7.It is true that the suit was contested by the third
defendant. It came up for trial on 21.3.2005. Due to the
absence of the respondent/3rd defendant, he was set ex-
parte, and an ex-parte decree came to be passed. There was
an application filed to set aside the same. While doing so,
there was a delay of 547 days, and an application was filed
to condone that delay. Both the applications were filed
only after notice to the Counsel for the plaintiff on
record. As far as the delay condonation application was
concerned, no counter was filed, and naturally, even if
counter was not filed, the lower Court was called upon to
look into the affidavit in support of the application and
find out whether there is sufficiency of cause. At this
juncture, there is no impediment for this Court to look into
the affidavit. The affidavit would clearly reveal that the
parties were close relations. Apart from that, there was a
compromise which was going on between them, and believing
the same, the third defendant was keeping quiet.
Thereafter, he came to know that execution proceedings were
initiated, pending the compromise. Under the circumstances,
he gave instructions to his Counsel to file the
applications. In view of the close relationship between the
parties and also the reasons adduced, this Court is of the
opinion that the delay was actually to be condoned.
Accordingly, the lower Court has allowed that application.
The revision petitioner herein, who was the plaintiff,
though served with the notice through Counsel, has not even
filed counter. Having failed to file counter before the
Court below, now, the contentions put forth cannot be
countenanced at all.
8.As far as the other application to set aside the ex-
parte decree was concerned, the learned Counsel for the
plaintiff though he was on record on that day, has made an
endorsement stating that notice has got to be ordered to the
party. Once the Counsel is on record, and so long as he
does not report no instructions, he has to take notice, and
he is to give responsible answer to the Court; but, he
failed. Under the circumstances, the lower Court considered
it proper to allow the application since it was convinced
that it was a fit case where the ex-parte decree was to be
set aside. This Court is unable to notice anything to
disturb the orders of the Court below. Accordingly, they
are sustained. Under the circumstances, the lower Court is
directed to dispose of the suit on merits and in accordance
with law within a period of three months from the date of
receipt of a copy of this order. Accordingly, both these
civil revision petitions are dismissed. No costs.
Consequently, connected MP is also dismissed.
nsv/
To
The District Munsif cum Judicial Magistrate
Chengam.