IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2008
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.PD.No.3850 of 2008
K.Palani .. Petitioner
Vs
K.Pattabiraman .. Respondent
Civil Revision Petition is filed against the order dated 21.08.2008 made in I.A.No.321 of 2007 in O.S.No.100 of 2002 on the file of Sub Court, Ranipet.
For Petitioner : Mr.P.B.Balaji
O R D E R
The revision petitioner/respondent/plaintiff has filed this civil revision petition as against the order dated 21.8.2008 in I.A.No.321 of 2007 in O.S.No.100 of 2002 on the file of Sub Court, Ranipet in allowing the application filed by the respondent/petitioner/1st defendant under Order 9 Rule 7 of CPC.
2. The trial Court has allowed the I.A.No.321 of 2007 by directing the respondent/petitioner/first defendant to pay a cost of Rs.500/- to be paid on or before 28.8.2008 and posted the matter to 29.8.2008.
3. The respondent/petitioner/first defendant before the trial Court has filed I.A.No.321 of 2007 in O.S.No.100 of 2002 under Order 9 Rule 7 of CPC praying to set aside the exparte order dated 21.10.2002 passed in O.S.No.100 of 2002 against him. The respondent/petitioner/first defendant has ascribed the reason to the effect that he was suffering from Jaundice during the month of October 2002 and he took native treatment and therefore, he could not meet his counsel and give instructions to prepare the written statement. Since the written statement was not filed, the respondent/petitioner/first defendant was set exparte on 21.10.2002.
4. The revision petitioner/respondent/plaintiff has filed a counter inter alia stating that the respondent/petitioner/first defendant had knowledge that he was set exparte and that I.A.No.321 of 2007 has been filed after the delay of five years and that to with false averments in the affidavit and therefore, the same may not be accepted by the Court.
5. Admittedly, the suit has been filed for partition. It appears that other defendants are contesting the suit and the suit is said to be at part heard stage and that I.A.No.321 of 2007 has been originally filed on 25.8.2003 and that the same has been returned on 1.9.2003 to rectify some defects pointed out by the trial Court and thereafter the same has been re-presented on 26.11.2007.
6. On going through the order of the the trial Court in I.A.No.321 of 2007 in O.S.No.100 of 2002 by passing a conditional order on payment of cost of Rs.500/-, the trial Court in the interest of justice in order to provide opportunity has allowed the application. The trial Court has exercised its judicial discretion in passing the said conditional order on payment of cost in I.A.No.321 of 2007 in O.S.No.100 of 2002.
7. In this connection, it is not out of place to point out that substantial justice will have to be delivered to the parties over riding all technicalities. Further it is to be noted that by allowing the application I.A.No.321 of 2007 the maximum that can happen is that the cause will be decided on merits after hearing the parties and not to be dismissed at the threshold. It is to be remembered that judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing the injustice and is expected to do so. As a matter of fact, a litigant does not stand to benefit by resorting to delay. Per contra, he runs a serious risk and in view of the matter , this Court is of the considered view that the trial
Court has exercised its judicial discretion in a proper manner and therefore the conditional order passed by it in I.A.No.321 of 2007 in O.S.No.100 of 2002 does suffer from any infirmity or illegality in the eye of law and resultantly this revision fails and the same is hereby dismissed.
8.In fine, this civil revision petition is dismissed. The order passed in I.A.No.321 of 2007 in O.S.No.100 of 2002 on the file of Sub Court, Ranipet is affirmed by this Court for the reasons assigned in this revision. Since the suit is one for partition, the respondent/petitioner/first defendant is directed to file his written statement within one week from today and the trial Court is directed to frame necessary issues on the basis of the pleadings and later to proceed with the conduct of trial of the suit and to complete the trial within a period of two months from the date of receipt of a copy of this order. The parties including the respondent/petitioner/first defendant are directed to cooperate with the trial Court in regard to the completion of the case so that the disputes/controversies can be thrashed out completely and comprehensively so as to give a quietus once for all in the interest of parties concerned. No costs.
sg
To The Debts Recovery Tribunal II,
Chennai