BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26/11/2008
CORAM
THE HONOURABLE MR. JUSTICE S.PALANIVELU
C.R.P(PD)(MD)NO.459 of 2008
and
M.P.(MD)NO.1 of 2008
N.Gnanapandithan ...Petitioner/petitioner/
defendant
vs
K.Venkatachalam ...Respondent/Respondent/
plaintiff
PRAYER
Civil Revision Petition filed under Section 115 of the Civil Procedure
Code, praying to set aside the fair order and decreetal order made in I.A.No.274
of 2007 in O.S.No.26 of 2006, dated 12.02.2008, on the file of the Subordinate
Court, Devakkottai.
!For Petitioner ... Mr.D.Venkatesh
^For Respondent ... Mr.R.Sundar Srinivasan
:ORDER
The petitioner is the defendant in O.S.No.26 of 2006, on the file of the
Sub-Court, Devakkottai. The respondent filed a suit for recovery of money from
the petitioner based on a pronote. On 21.08.2006, the defendant was called
absent for non-filing of the written statement and he was set exparte. He filed
a petition to set aside the exparte decree along with a petition to condone the
delay of 87 days in filing the petition to set aside the exparte decree, under
Section 5 of the Limitation Act, alleging that since he was indisposed, he was
unable to meet his counsel to give instructions. It is further contended that as
he got intestinal problem and backpain, he could not walk and he stayed in
Madurai for taking treatment and hence the above said delay has been caused.
2. In the counter, the allegations found in the affidavit are denied and
that inspite of sufficient opportunities, he has not utilized the same and filed
his written statement.
3. After hearing both sides, the learned Subordinate Judge, Devakkottai,
passed a conditional order allowing the application on deposit of 50% of the
decree amount. The said order is challenged before this Court.
4. The learned counsel for the petitioner would submit that the condition
imposed by the court below is onerous one and it is not in accordance with law.
In support of his contention, the learned counsel for the petitioner draws
attention of this Court to a decision in K.Palaniswamy .vs. M/s. Ganesa Finance
Corporation, Erode, represented by Managing Partner, L.Selvarasu reported in
(2001) 2 MLJ 654, in which it is stated as follows:
” The trial Court was under the wrong impression that I.A.No.1187 of 2000
is an application to set aside the ex parte decree. In the above circumstances,
I have no hesitation in holding that the trial Court has committed material
irregularity in imposing condition in the application to condone the delay.
Further, the condition directing the petitioner to deposit 50% of the suit claim
is onerous. I hold that it is proper to impose nominal cost for condoning the
delay.”
It is his further contention that it is not open to the trial court to impose
onerous condition, when he comes forward with sufficient cause, explaining the
delay.
5. Conversely, the learned counsel for the respondent would submit that
there is no legal flaw on the part of the court below by imposing such
condition as per the decision of this Court. He placed reliance upon a
decision of this Court in M/s. Vasantha Mills Ltd., represented by its Chairman
K.C.Palanisamy .vs. M/s. K.S.R.Exports, represented by its Partner R.Asaithambi
reported in 2002-2-L.W.555 in which it is observed that the conduct of the
petitioner is nothing but to protract the proceedings and the lower court had
carefully taken into consideration the same, while imposing the condition
directing the petitioner to deposit 50% of the decree amount. The learned
counsel for the respondent also cited another decision of this Court
K.M.Palanisamy .vs. P.Sengottaiyan reported in 2007(4)CTC 148 in which the
Learned Judge has observed that the order of trial court imposing condition on
the defendant to deposit Rs.50,000/- into court in order to allow petition to
set aside is not onerous order fixing ex parte hearing of suit or prejudging
controversy in suit but only reasonable and just.
6. The learned counsel for the petitioner distinquishes the occasions
wherein the consideration under Section 5 of the Limitation Act and another is
as to the setting aside of the exparte decree. As far as the first category is
concerned, as per settled procedure, the petitioner is expected to show
sufficient cause for the delay and the court has to get satisfied itself
whether the reasons adduced in the affidavit for his delay have been
sufficiently explained. In so far as the next category is concerned, it is for
the court to impose reasonable conditions but not onerous. As for this case,
this is a petition under Section 5 of the Limitation Act and the court has to
see whether the reasons have been properly explained. It is the version of the
petitioner that because of his intestinal troubles and backpain, he was unable
to walk and he being stayed at Madurai for taking treatment. It is stated by
the court below that no document has been produced to show that he was suffering
from the specific illness and further he had not examined any Doctor to prove
his illness. However, the court below has finally decided that the delay has
been explained. As far as this finding recorded by the court below is
concerned, there is no need to disturb it. While coming to the imposition of
condition, it appears to this Court that it is onerous. As adverted supra, on a
petition under Order 9 Rule 13 of C.P.C, there may be some condition for deposit
of a portion of the decree amount, which could not be
onerous but a reasonable one. Since sufficient cause has been shown on behalf
of the petitioner, ends of justice would be met by imposing costs so as to
compensate the other side for inconvenience.
7. In fine, the Civil Revision Petition will be allowed on condition that
the petitioner shall pay a sum of Rs.1,000/-(Rupees one thousand only) to the
respondent towards costs within a period of two weeks from today before the
lower court and in default of payment, this Civil Revision Petition shall stand
automatically dismissed without reference to this Court. Consequently, connected
Miscellaneous Petition is closed. No costs.
vsn
To
The Subordinate Judge,
Devakkottai.