IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2010
CORAM :
The Honourable Mr.Justice M.M.sUNDRESH
C.R.P.(NPD)No.1318 of 2004
and
C.M.P.No.10681 of 2004
K.Subramaniam ... Petitioner
Vs
The First Leasing Company of
India Ltd.,
428, Anna Salai,
Chennai 2. ... Respondent
Prayer : This Civil Revision Petition is filed under Section 115 of C.P.C. with a prayer to set aside the Fair and Final order passed in I.A.No.14902 of 2003 in O.S.No.37 of 1999, dated 16.04.2004, on the file of XV Asst. City Civil Judge, Chennai and to allow the above C.R.P.
For Petitioner : Mr.Veerakathiravan
For Respondent : No Appearance
ORDER
The petitioner, being the defendant in the suit filed an application in I.A.No.14902 of 2003 in O.S.No.37 of 1999 under Section 5 of the Limitation Act, seeking to condone the delay of 164 days in filing an application to set-aside the exparte decree. Being aggrieved against the dismissal, the said application of the petitioner has filed the revision petition.
2.The respondents herein has filed a suit in O.S.No.37 of 1999 on the file of XV Assistant City Civil Court, Chennai for recovery of a sum of Rs.23,847/- with interest in the said suit. The petitioner was set exparte in the order dated 14.08.2000. Thereafter, an application was filed in I.A.No.14902/2003 stating that the suit summon has not been served on the petitioner and the petitioner has come to know about the suit only after receipt of the notice in the execution petition. Since there was some negotiation between the parties, the petitioner could not file an application immediately thereafter and due to the failure of the negotiation, the petitioner has present the application, seeking to condone the delay of 164 days in filing the application and set-aside the exparte decree.
3.The Trial court has dismissed the application by holding that the petitioner did not pay the loan received by the respondent. The court below has further stated that even assuming that the suit summon were not served on the petitioner, the subsequent reason given by the petitioner for not filing the application immediately after the receipt of the notice in the execution petition cannot be accepted.
4.When it is the specific case of the petitioner that the suit summon has not been served on him, the court below ought to have given a findings on the said averment. Therefore, taking into consideration the above said fact and also in order to give an opportunity to the respondent, this Court is of the opinion that the revision should be allowed by compensating the respondent.
5.It is nodoubt true that the petitioner has not come to the Court immediately after the receipt of the notice in the execution petition. However, taking into consideration of a liberal view of the matter and also taking into consideration of the averment of the petitioner that he has not been served in the suit, this Court is of the opinion that the revision petition will have to be allowed on the condition that the petitioner shall pay a sum of Rs.1,000/-(Rupees one thousand only) to the respondent within a period of four weeks from the date of a receipt of a copy of this order failing which the revision shall stand dismissed automatically.
6.In the event of the petitioner, complying with the said condition, the Court below is directed to dispose of the suit within a period of six months and the subsequent application being allowed thereafter. The revision is allowed accordingly. No costs. Consequently, the connected miscellaneous petition is also closed.
26.02.2010
Index :Yes/No
Internet :Yes/No
gv
M. M.sUNDRESH,J
gv
C.R.P.(NPD)No.1318 of 2004
26.02.2010