IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/02/2006
CORAM
THE HON'BLE MR. JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR. JUSTICE J.A.K. SAMPATHKUMAR
ORIGINAL SIDE APPEAL NO.305 of 2005
K. Nandagopal Chetty .. Appellant
-Vs-
1. M/s. J.R. Arts
rep. by Janakiraman
2. M/s. S.R.M. Arts
rep. by Sasi Mohan
3. M/s. N.S. Film Distributors
rep. by partners.
4. V.E. Nallakaruppan
Partner
M/s. N.S. Film Distributors.
5. R. Venugopal
Partner
M/s. N.S. Film Distributors.
6. The Coimbatore Film Distributors
Association rep. by the
President and Secretary. .. Respondents
Original Side Appeal filed under Order XXXVI Rule 11 of O.S.
Rules r/w Clause 15 of the Letters Patent against the fair and decreetal order
dated 25.04.2005 made in Application No.3765 of 2004 in C.S.No.13 14 of 1995.
!For appellant : Mr. A. Chidambaram
^For respondents: Mr. V. Ramasubramaniam
3 to 6 for Mr. Palani Selvaraj
:JUDGMENT
(Judgement of the Court was delivered by P. SATHASIVAM,J.)
The above original side appeal has been filed against the
order of the learned single Judge dated 25.04.2005 made in Application No.3765
of 2004 in C.S. No.1314 of 1995, in and by which the learned Judge set aside
the ex parte decree dated 20.04.2004 passed in C.S.No.1314 of 1995 on deposit
of Rs.25,000/- to the credit of said suit on or before 30.06.2005.
2. Heard the learned counsel for the appellant as well as the
contesting respondents 3 to 6.
3. It is seen that an ex parte decree was passed on
20.04.2004, to set aside the same and to restore the suit on file, the
defendants 3 to 6 / respondents 3 to 6 herein filed an application in
Application No.3765 of 2004. In the affidavit filed in support of the above
application it is stated that initially the suit was dismissed for default on
27.03.2001, and thereafter, the said suit was restored on 24.0 1.2002. While
so, he was informed by the 6th respondent about the news item in “Daily
Thanthi” dated 26.07.2004, stating that this Court decreed the suit for
damages filed by Nandagopal Chetty and defendants 3 to 6 were directed to pay
a sum of Rs.2.25 crores to the plaintiff. It is further stated that on
hearing the same, he verified the Court records and came to know that the suit
was listed for trial on 20.04.2004, ex parte evidence was taken and ex parte
decree was passed on the same day itself and thereafter, he took steps to file
an application to set aside the ex parte decree. It is also stated since he
came to know the ex parte decree only on 26.07.2004, he filed the application
on 27.07.2004 to set aside the ex parte decree dated 20.04.2004.
4. The said application was resisted by the plaintiff by
filing counter affidavit disputing the claim made by the contesting
defendants.
5. The learned Judge, after accepting the submission made on
behalf of the petitioners that some more time was required for resolving the
matter and even after setting aside the ex parte decree, the parties could
very well make an endeavour to settle the matter, as well as taking note of
the fact that the suit has been pending for long time and for reporting
settlement the matter was adjourned for several hearings and keeping in mind
the judgement relied on by the learned counsel, viz., V.K. Industries and
others vs. M.P. Electricity Board, Rampur, Jabalpur [2002 (3) SCC 159], set
aside the ex parte decree dated 20.04.2004, with a direction to the applicants
to deposit Rs.25 ,000/- on or before 30.06.2005 to the credit of C.S.No.1314
of 1995.
6. Mr. A. Chidambaram, learned counsel for the
appellant/plaintiff by drawing our attention to the suit claim, pendency of
the suit for several years and the admission of claim made by the defendants
submitted that the learned Judge is not justified in ordering deposit of a
meagre sum of Rs.25,000/- and in other words, the learned Judge ought to have
imposed a condition directing to deposit a sizeable amount towards the suit
claim.
7. On the other hand, Mr. Ramasubramnaiam, learned counsel
appearing for the contesting respondents pointed out that in view of the fact
that the matter was adjourned on several occasions for resolving the dispute
amicably and in the light of the reasons stated in the affidavit filed in
support of the application, as well as taking note of the fact that even after
setting aside the ex parte decree it would be possible for the parties to
settle the issue, the learned Judge by exercising discretion, imposed a
reasonable condition, which does not call for any interference by this Court.
8. We have verified the records. The suit was instituted in
the year 1995. Though it is stated that there was a delay in filing the
petition to set aside the ex parte decree, only after condoning the delay, the
order has been passed setting aside the ex parte decree, and hence we are now
concerned with the reasons assigned for setting aside the ex parte decree. In
the earlier part of our judgement, we have referred to the stand taken by the
contesting respondents. Further, a reading of paragraph 6 of the order of the
learned Judge amply shows that the matter was adjourned on several occasions
on the undertaking that the matter would be settled amicably. In such a
circumstance, the learned Judge after satisfying herself that even after
setting aside the ex parte decree, the parties can very well resolve the issue
by settling the matter, ordered the application by directing the applicants
therein to deposit a sum of Rs.25,000/- on or before 30 .06.2005. Mr.
Ramasubramaniam, learned counsel appearing for contesting respondents also
informed this Court that the said conditional order has been duly complied
with. Inasmuch as the learned Judge has exercised her discretion after
accepting the submission made on behalf of the applicants, we are of the view
that there is no valid ground warranting interference with the said order.
Accordingly, the appeal fails and the same is dismissed. No costs.
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