BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 04/01/2008 CORAM: THE HON'BLE MR.JUSTICE G.RAJASURIA C.R.P.PD(MD)No.1672 of 2007, C.R.P.PD(MD)No.1673 of 2007 B.A.Syed Ahammed ... Petitioner in both C.R.Ps. Vs. M.Saroja ... Respondent in C.R.P.PD(MD)No.1672 of 2007 E.Murugasam Pillai ... Respondent in C.R.P.PD(MD)No.1673 of 2007 PRAYER IN BOTH C.R.Ps.: Petitions filed under Article 227 of the Constitution of India against the fair and decreetal orders dated 29.01.2007 passed in I.A.No.960 of 2006 in O.S.No.28 of 2005 and I.A.No.962 of 2006 in O.S.No.27 of 2005 on the file of the learned District Munsif, Kulithalai. !For Petitioner ... Mr.A.Joel Paul Antony in both C.R.Ps. ^For Respondent ... No appearance :ORDER
These Civil Revision Petitions are focussed as against the fair and
decreetal orders dated 29.01.2007 passed in I.A.No.960 of 2006 in O.S.No.28 of
2005 and I.A.No.962 of 2006 in O.S.No.27 of 2005 on the file of the learned
District Munsif, Kulithalai.
2. Heard the learned counsel for the petitioner. Despite printing the
name of the respondents, no one appeared.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of these Civil Revision Petitions would run thus:
The respondents herein filed the suits in O.S.Nos.27 and 28 of 2005
respectively before the learned District Munsif, Kulithalai for recovery of
money as against the revision petitioner herein.
4. It so happened that on 15.06.2005, written statement was filed by the
petitioner. Subsequently it so happened that the petitioner could not appear
before the trial Court during trial, and thereupon the petitioner herein was set
ex-parte and ex-parte decrees were passed. There was delay on the part of the
petitioner herein in filing the applications to get the ex-parte decrees set
aside. As such I.A.Nos.960 and 962 of 2006 were filed for getting the delay of
thirteen days condoned in filing such applications. But the trial Court, after
hearing both sides, dismissed the applications for condoning the delay of
thirteen days.
5. Being aggrieved by and dissatisfied with such orders, the present
applications have been filed.
6. The perusal of the orders of the trial Court would reveal that
according to the trial Court even though the petitioner herein pleaded that he
was suffering from illness, yet he had not produced any clinching evidence. The
trial Court would refer to certain facts and hold that the defendant was bent
upon dragging the proceedings and that initially he even prayed for referring
the matter to the Lok Adalat and subsequently also he never showed any interest
in participating in the trial. No doubt a litigant and that too a defendant in
the money suit should be diligent in participating in the proceedings and he
cannot take the other side for a ride by taking shelter under the technicalities
contemplated under law. The fact remains that for the first time ex-parte
decrees were passed and there is nothing to show that the petitioner was
repeatedly indulging in recidivism of allowing the matters to be disposed of ex-
parte and then getting those decrees set aside. Here the delay is only thirteen
days, which by any standard cannot be considered as exorbitant.
7. In the affidavit, the petitioner had set out the facts that owing to
ill health alone he could not appear before the trial Court and I could see no
malafide intention on his part in making such averments in his affidavit.
Furthermore, if at all the petitioner was bent upon dragging the proceedings he
would not have filed that I.As. in setting aside the exparte decree with a mere
delay of thirteen days. Above all in the interest of audi alteram partem, I
would like to grant one more opportunity to the petitioner on payment of costs
to the respondent.
8.C.R.P(PD)No.1672 of 2007:
In the result, C.R.P(PD)No.1672 of 2007 is allowed and the order dated
29.01.2007 passed in I.A.No.960 of 2006 in O.S.No.28 of 2005 on the file of the
learned District Munsif is set aside and consequently the delay of 13 days in
filing the petition to set aside the ex-parte decree in O.S.No.28 of 2005 is
condoned on cost of Rs.1000/- (Rupees one thousand only) to be paid by the
petitioner to the respondent herein within a period of 15 days from the date of
receipt of a copy of this order, failing which, this petition shall stand
automatically dismissed.
9.C.R.P(PD)No.1672 of 2007:
In the result, C.R.P(PD)No.1673 of 2007 is allowed and the order dated
29.01.2007 passed in I.A.No.962 of 2006 in O.S.No.27 of 2005 on the file of the
learned District Munsif is set aside and consequently the delay of 13 days in
filing the petitioner to set aside the ex-parte decree in O.S.No.28 of 2005 is
condoned on cost of Rs.500/- (Rupees five hundred only) to be paid by the
petitioner to the respondent herein within a period of 15 days from the date of
receipt of a copy of
this order, failing which, this petition shall stand automatically dismissed.
smn
To
The District Munsif,
Kulithalai.