Madras High Court
M/S.Olympic Cards Limited vs Standard Charted Bank on 17 December, 2012
Author: R.Banumathi
Bench: R.Banumathi, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.12.2012 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE K.K.SASIDHARAN Original Side Appeal No.175 of 2012 M/s.Olympic Cards Limited, rep. by its Managing Director Sri.H.Noormohamed, No.195, N.S.C. Bose Road, Chennai-600 001. .. Appellant Vs. 1.Standard Charted Bank, Small Medium Enterprises Banking Consumer Banking rep. by its Portfolio Manager Mrs. Parvathy Ramakrishnan No.8, Haddows Road, Chennai-1. 2.Standard Chartered Bank, No.19, Rajaji Salai Branch, rep. by its Manager, Chennai-600 001. .. Respondents Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 28.03.2012 made in A.No.524 of 2012 on the file of this Court. For Appellant : Mr.K.Sankaran For Respondents : Mr.R.Thiagarajan for Mr.Anil Relvani M/s.N.V.S.Associats JUDGMENT
R.BANUMATHI,J Whether non-pursuance of application filed in Civil Suit Diary No.31908 of 2011 under Order IX, Rule 7 C.P.C. which was returned and not represented would amount to withdrawal/abandonment of the claim under Order XXIII, Rule 1 C.P.C. and would preclude the Defendants from filing a fresh application and whether there was improper exercise of discretion in allowing of application filed in A.No.524 of 2012 are the points falling for consideration in this appeal.
2. Appellant-Plaintiff having account with the 2nd Respondent-Defendant availed certain credit facilities. Appellant filed suit C.S.No.193 of 2009 claiming Rs.49,74,318.77 under various heads:- (i) Rs.14,23,329/- towards delayed booking of Forward contract dated 7.4.2006; (ii) Rs.3,19,651.84 towards delayed booking of Forward contract dated 26.11.2007; (iii) Rs.1,28,048.77 towards raising of interest rate for Term loan of Rs.1,00,00,000/-; (iv) Rs.14,49,444/- for Prepayment penalty charges to over draft account; (v) Rs.10,04,564.70 towards closure of accounts and (vi) Rs.70,000/- towards processing charges. Suit summons were served on the Defendants on 13.3.2009. Case was listed in the "Undefended Board" for filing written statement and for representation of the vakalat. Defendants 1 and 2 being part of the same Bank, filed the written statement on 31.8.2009 along with application to condone the delay in filing the written statement. Registry returned the written statement on 02.9.2009 and application was returned on 08.09.2009. Respondents-Defendants did not represent the written statement and application for condonation of delay.
3. Case was posted on 07.9.2011 before Undefended Board and on the same day, Respondents-Defendants were set exparte. According to Respondents-Defendants, on 7.9.2011 when the matter was called in the open Court, the Junior Advocate appeared before the Court and made submissions praying for representation of the returned written statement along with condone delay application. It is stated that since the Junior Advocate was not a counsel on record, the Court was not inclined to consider his submissions and Respondents-Defendants were set exparte and the matter was directed to be posted before the Master on 15.09.2011. On 15.09.2011, P.W.1 was examined and Master directed the matter to be posted in the Court for passing orders. Accordingly, suit was posted in the Court for passing exparte decree on 13.10.2011 and the matter was then adjourned to 19.10.2011 and again on 10.11.2011, but not listed.
4. Respondents-Defendants filed application to set aside the exparte order in Diary No.31908 of 2011. Common written statement and application to condone the delay in filing the written statement was represented before the Registry in Diary No.28842 of 2009. Application to condone the delay in representing the written statement was filed along with Master's summon in A.No.5236 of 2011. The said application A.No.5236 of 2011 was dismissed by the Master on 02.12.2011 on the ground that no application could be entertained for want of application for setting aside the exparte order prior to preferring application.
5. Later the matter came up before the Court on 09.1.2012 and it was represented to the Court that Respondents-Defendants are intending to prefer an appeal against the order dated 2.12.2011 passed by the Master dismissing the application A.No.5236 of 2011. Appeal was filed against the order of Master in A.No.5236 of 2011 on 20.1.2012 along with application to condone the delay in filing the appeal in Diary Nos.1901 and 1903 of 2012 respectively. The said appeal along with delay condonation application was returned by the Registry on 31.1.2012. In the above circumstances, Respondents-Defendants have filed fresh application in A.No.524 of 2012 on 03.2.2012 to set aside the exparte order dated 07.9.2011 stating that they have good case on merits and prayed for setting aside the exparte order dated 07.9.2011 passed against them.
6. Appellant-Plaintiff resisted the application contending that since the Respondents-Defendants earlier filed application (Diary No.31908 of 2011) with the same prayer viz., to set aside the exparte order dated 07.9.2011 and abandoned the same, A.No.524 of 2012 is not maintainable and liable to be dismissed under Order XXIII, Rule 1(4) C.P.C.
7. Upon consideration of rival contentions, learned single Judge elaborately referred to the dates and events and observed that Respondents-Defendants have taken earnest efforts to set aside the exparte order and to file the written statement. Referring to 2007 (3) MLJ 335 (D.Mohan v. N.Kuppan @ Durai and others], the single Judge further held that unless suit/application is numbered and registered, it cannot be held to be a regular suit. It was further held that since earlier application in Diary No.31908 of 2011 was not numbered, there was no illegality in filing second application to set aside the exparte order and on those findings, allowed the application on condition that Respondents-Defendants are to pay cost of Rs.25,000/- to Tamil Nadu Mediation and Conciliation Centre, High Court, Madras.
8. Mr.K.Sankaran, learned counsel for Appellant contended that trial Court erred in allowing the application A.No.524 of 2012 and setting aside the exparte order dated 07.9.2011. It was interalia contended that earlier, Respondents-Defendants have filed application Diary No.31908 of 2011 to set aside the exparte order and did not pursue the same and non-pursuance of earlier application amounts to withdrawal/abandonment and in the above circumstance, filing of fresh application for the same relief is clearly barred under Order XXIII, Rule 1(4) C.P.C. It was contended that Section 141 C.P.C. expressly states that the procedure for suits is equally applicable to applications in the suit and while so, the learned single Judge erred in holding that earlier applications were neither admitted nor numbered and the same would not amount to institution of applications. In support of his contention, learned counsel placed reliance upon (2008) 14 SCC 58 [Ramesh Chandra Sankla and others v. Vikram Cement and others]. It was further contended that in any event, order of the Master dated 02.12.2011 had become final and the said order cannot be circumvented by filing fresh application for setting aside the exparte order dated 07.9.2011 and this aspect was not kept in view by the leaned single Judge.
9. Per contra, learned counsel for Respondents-Defendants Mr.R.Thiagarajan submitted that Respondents-Defendants were earnestly taking steps by repeatedly representing the application to condone the delay in filing the written statement and also to set aside the exparte order and in those circumstances, Respondent-Defendants again filed fresh application on 03.2.2012 to set aside the exparte order dated 07.9.2011. It was contended that since the earlier application in Diary No.31908 of 2011 filed on 09.9.2011 was not numbered, the same cannot be treated as application at all and therefore, Order XXIII, Rule 1 (4) C.P.C. cannot be invoked.
10. Whether non-pursuance of unnumbered application is a bar under Order XXIII, Rule 1(4) C.P.C. in filing a fresh application - As pointed out earlier, Respondents-Defendants were set exparte on 07.9.2011. After recording exparte evidence, the matter was directed to be posted before the Master on 15.9.2011. At that stage, Respondents-Defendants filed application to set aside the exparte order dated 07.9.2011 in Diary No.31908 of 2011 and the said application was returned, but not represented. Learned counsel for Appellant contended that Respondents-Defendants earlier filed application in Diary No.31908 of 2011 to set aside the exparte order dated 07.9.2011 and without seeking leave of the Court abandoned the same and filing of fresh application in A.No.524 of 2012 is barred under Order XXIII, Rule 1 sub-rule (4) of C.P.C. Learned counsel for Appellant submitted that as per Section 141 C.P.C., procedure provided in the Code in regard to suits shall be followed in respect of applications in all proceedings in any Court of Civil jurisdiction. It was contended that learned single Judge erred in overlooking the aspect Respondents having waived and abandoned the prayer in the earlier applications will loose their right for filing fresh application for setting aside the exparte order dated 07.9.2011.
11. Placing reliance upon (2008) 1 SCC 494 [Sarva Shramik Sanghatana (K.V), Mumbai v. State of Maharashtra and others], learned counsel for Respondents contended that Order XXIII, Rule 1(4) C.P.C. is applicable only to suits and the said provision will not apply to Interlocutory Applications. Learned counsel further contended that in any event, application filed in Diary No.31908 of 2011 was not numbered and as such there was no application on file and therefore, non-pursuing the same would not amount to "abandonment of the claim", so as to preclude the Respondents from filing any fresh application to set aside the exparte order.
12. As per Order XXIII, Rule 1 sub-rule (4) C.P.C., when the suit is withdrawn without leave, there is a bar to bring a fresh suit in respect of the same subject matter. Order XXIII, Rule 1 sub-rule (4) C.P.C. reads as follows:-
"Order XXIII, Rule 1 (4) Where the plaintiff -
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
13. The provisions regarding withdrawal and abandonment of suits were incorporated for a specific purpose, on the ground of public policy. The withdrawal of suit or part of a claim without liberty or abandonment of suit at midway would operate as a statutory bar for initiating fresh litigation on the basis of the very same cause of action. The Order passed by the trial Court granting withdrawal of suit without liberty would not operate as res judicata. The doctrine of res judicata is based on the principle of conclusiveness of judgment and finality of litigation. Section 11 of C.P.C and Rule (1) of Order XXIII operates in two different spheres. To attract the doctrine of res judicata, there must be two suits, one former and the other subsequent, the Court which decided the earlier suit must be competent to take up the later suit, the matter directly and substantially in issue must be the same either actually or constructively in both the suits, the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the earlier suit by the Court, the parties to the suit or the parties under whom they or any of them claim must be the same in both the former and subsequent suit and the parties in both the suits must have litigated under the same title. In case, these mandatory conditions are satisfied, the subsequent suit would be barred under Section 11 of C.P.C. The abandonment of suit as provided under Rule (1) of Order XXIII does not involve any such adjudication on merits. This rule is essentially based on public policy that a fresh suit on the basis of the very same cause of action should not be permitted at a later point of time, unless leave was taken for such institution. This provision therefore can be invoked only in case there was a valid proceedings which was abandoned midstream without obtaining consent from the Court. The bar is against the institution of a fresh round of litigation on the basis of the very same cause of action. Since the provision bars a later litigation on account of a former litigation on the very same point, the Court, before axing the subsequent suit, must be convinced that a suit was instituted earlier and it was taken on file by the Court and inspite of the readiness of the Court and the defendant to decide the suit on merits, the plaintiff has withdrawn the proceedings without liberty.
14. The object of Order XXIII, Rule 1 C.P.C. is to give power to the Court to allow the Plaintiff at any time to withdraw his suit unconditionally or to withdraw from the suit on the fulfillment of conditions:- (a) that a suit must fail by reason of some formal defect or (b) that there are sufficient grounds for allowing the Plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The object of the rule is only to prevent the defeat of justice on technical grounds. Sub-rule (3) contemplates, withdrawal from the suit with liberty to bring a fresh suit. Plaintiff who ask/seeks for leave to withdraw the suit must make out a case within Order XXIII, Rule 1(3)(a) or (b) C.P.C. Order XXIII, Rule 1 and sub-rule (2) and sub-rule (3) all are to be read together. Application seeking permission of the Court to withdraw the suit and bar under Order XXIII, Rule 1(4) C.P.C. to file a fresh suit pre-supposes the institution of the suit. In fact, Order XXIII, Rule 1 starts with an expression "At any time after institution of a suit, the Plaintiff ................. abandon his suit or abandon his part of claim". Thus institution of the suit is a pre-requisite for filing application to withdraw the suit.
15. This would, lead to a further question as to what is meant by institution of a suit or valid legal proceeding.
16. Rule (1) of Order IV of C.P.C. provided for institution of suits. Rules 3 and 4 of Order IV contains the statutory prescription that the plaint must comply with the essential requirements of a valid plaint and then only the process of filing would culminate in the registration of a suit. Rule 21 of Civil Rules of Practice contains the basic difference between presentation and institution. There is no dispute that the date of filing the plaint would be counted for the purpose of limitation. However, that does not mean that the suit was validly instituted by filing the plaint. The plaint, which does not comply with the rules contained in Order VI and VII, is not a valid plaint. The Court will initially give a Diary Number indicating the presentation of suit. In case the plaint is returned, it would remain as a "returned plaint" and not a "returned "suit". The act of numbering the plaint and inclusion in the Register of Suits alone would constitute the institution of suit. The stages prior to the registration of suit are all preliminary in nature. The return of plaint before registration is for the purpose of complying with certain defects pointed out by the Court. The further procedure after admitting of the plaint is indicated in Rule 9 of Order VII. This provision shows that the Court would issue summons to the parties after admitting the plaint and registering the suit. Thereafter only the defendants are coming on record, exception being their appearance by lodging caveat. Even after admitting the plaint, the Court can return the plaint on the ground of jurisdiction under Rule 10 of Order VII of C.P.C. The fact that the plaintiff/petitioner served the defendant/respondent the copies of plaint/petitions before filing the suit/petition would not amount to institution of suit/filing petition. It is only when the Court admits the plaint, register it and enter it in the suit register, it can be said that the suit is validly instituted.
17. It is therefore clear that any abandonment before the registration of suit would not constitute withdrawal or abandonment of suit within the meaning of Order XXIII Rule 1 C.P.C., so as to operate as a legal bar for a subsequent suit of the very same nature. It is only the withdrawal or abandonment during the currency of a legal proceedings would preclude the plaintiff to file a fresh suit at a later point of time on the basis of the very same cause of action.
18. As pointed out earlier, application to set aside the exparte order was filed in the Registry (CSD.No.31908 of 2011) and it was returned and not represented. The said application in CSD.No.31908 of 2011 was neither numbered nor instituted. Filing of an application in the Registry and return of application and non-representation of the application would not amount to "abandon the claim", so as to preclude the Respondents-Defendants from filing a fresh application. It is thus clear that it was not a case of abandonment or giving up the application to set aside the exparte order by the Respondent Bank.
19. Contending that for filing fresh application, permission of the Court ought to have been obtained, learned counsel for Appellant placed reliance upon (2008) 14 SCC 58 [Ramesh Chandra Sankla and others v. Vikram Cement and others]. In the above decision in Paragraph (61), the Honourable Supreme Court held as under:-
"61. From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a court of law would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start a fresh round of litigation and the court will not allow him to reagitate the claim which he himself had given up earlier."
20. The Hon'ble Supreme Court referred to the earlier decision in AIR 1961 SC 1457 (Daryao v. State of U.P.) and held as under:-
"62. In Sarguja Transport Service (1987) 1 SCC 5 : 1987 SCC (Cri) 19, extending the principles laid down in Daryao, AIR 1961 SC 1457 : (1962) 1 SCR 574, Venkataramiah, J (as His Lordship then was) concluded:-
"9. ... we are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relief on in the writ petition when he withdraws it without such permission."
21. By a careful reading of Ramesh Chandra Sankla's case, we find that the said decision does not support the case of the Appellant. In the said case, Company filed one Writ Petition against one employee which was registered as W.P.No.3060 of 2005. It also filed another Writ Petition against the remaining employees (236) which was registered as W.P.No.3471 of 2005. Since the second Writ Petition was against several employees - more than 200 employees, the Registry of Madhya Pradesh High Court raised objection. Since the workmen in the said second Writ Petition was more than 200 employees, Registry felt that there were practical difficulties and logistical problems and before it was listed for admission the counsel for Company did not press the second Writ Petition and the said Writ Petition was accordingly dismissed "as not pressed". Immediately thereafter, separate Petitions were filed by the Company against the individual workmen. In the above factual matrix, the Hon'ble Supreme Court held as follows:-
"65. It is thus clear that it was not a case of abandonment or giving up of claim by the Company. But, in view of the office objection, practical difficulty and logistical problems, the petitioner Company did not proceed with an "omnibus" and composite petition against several workmen and filed separate petitions as suggested by the Registry of the High Court.
66. There is an additional reason also for coming to this conclusion on the basis of which it can be said that the Company was prosecuting the matter and there was no intention to leave the matter. As is clear, Writ Petition No.3060 of 2005 which was filed against one employee was very much alive and was never withdrawn/"not pressed". If really the Company wanted to give up the claim, it would have withdrawn that petition as well. Thus, from the circumstances in their entirety, we hold that the objection raised by the learned counsel for the workmen has no force and is rejected."
It was thus held not pressing of earlier Writ Petition would not amount to "abandonment". The ratio of the above decision does not support the case of the Appellant. Merely because the first respondent failed to represent the applications, it cannot be said that the issue has become final and it cannot be agitated later.
22. Whether application liable to be dismissed on account of alleged lapses on the part of the Bank:- As elaborated earlier, before filing A.No.524 of 2012, Respondents-Defendants filed number of applications viz.,-
(a) After the matter was posted before the Master for recording exparte evidence, A.No.5236 of 2011 for condoning the delay of 790 days in representing the written statement;
(b) A.No.5236 of 2011 was dismissed by the Master on 02.12.2011 stating that the application is not maintainable as Respondents had not taken any steps to set aside the exparte order dated 07.9.2011.
(c) The dismissal order in A.No.5236 of 2011 was sought to be challenged by preferring an appeal together with application for condonation of delay of 41 days in preferring the appeal and the same was not pursued. Appeal as well as application to condone the delay of 41 days in filing the appeal were returned on 31.1.2012.
(d) After dismissal of A.No.5236 of 2011, Respondents-Defendants again filed fresh application A.No.524 of 2012 to set aside the exparte order.
23. Ofcourse, Respondents-Defendants have filed number of applications and does not appear to have been vigilant in prosecuting the applications. When the Respondents-Defendants were resisting the suit claiming Rs.49,74,318.77, ofcourse Respondent Bank ought to have been more vigilant in prosecuting the matter. It must be remembered that in every case of delay or filing of application to set aside the exparte order/decree, there might be some lapses on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. Respondent Bank alone cannot be faulted for filing number of such applications. By perusal of the order of the single Judge, it is seen that on 20.12.2011, the Court has passed the following order:-
" .... In such cases, the office, on the hearing date, must place a note regarding the filing of the application and get necessary orders directing the listing of the application either before the Court or before the Master. Without doing the same, the office seems to have flouted the orders of the Court by omitting to list the matter on the appointed date before the Judge and listed the application before the Master without getting the order of the Court."
The Court also permitted the Respondents to represent the application to set aside the exparte order in a couple of days and directed the Registry to list the matter on 02.01.2012". Therefore, there appears to be some deviation in the matter of complying with the order of the Court in listing the matter. Therefore, Respondents-Defendants alone cannot be faulted for filing number of applications.
24. Application under Order IX, Rule 7 C.P.C.:- Be that as it may, let us consider the merits of the matter. In an application under Order IX, Rule 7 C.P.C., Court has to see the only points for consideration are:-
(1)Whether there was due service of summons;
(2)Whether there was good cause for previous non-appearance at hearing.
Overriding consideration being rendering substantial justice. Expression "good cause" in Order IX, Rule 7 C.P.C. or "sufficient cause" in Order IX, Rule 13 C.P.C. have to receive liberal construction so as to advance substantial justice.
25. While considering application under Order IX, Rule 7 C.P.C. or Order IX, Rule 13 C.P.C., the nature of suit claim and stake of parties cannot be overlooked. Appellant-Plaintiff has filed the suit claiming Rs.49,73,318.77 on account of delayed booking Forward contract, raising of interest rate on Term loan, pre-payment penalty charges to over draft account etc. When such huge claim is made in the suit, necessarily, opportunity is to be afforded to the Respondents Bank to file written statement and contest the matter. Lest, Appellant-Plaintiff would take the exparte decree for such huge claim.
26. Plea regarding limitation:- Learned counsel for Appellant submitted that application filed under Order IX, Rule 7 C.P.C. is also governed under Article 123 of Limitation Act and while so, application filed in 2012 (A.No.524 of 2012) to set aside the exparte order dated 07.9.2011 was barred by limitation. It was also contended that when Legislature has thought fit to fix limitation as thirty days for filing application under Order IX, Rule 13 C.P.C., the Legislature would not have intended to prescribe unlimited time to file an application under Order IX, Rule 7 C.P.C. and urged us to elaborate upon the applicability of Article 123 of Limitation Act to application filed under Order IX, Rule 7 C.P.C. Considering the limited scope of this appeal, we are not inclined to go into that question.
27. Procedure is only handmaid of Justice:- All the rules of procedure are the handmaids of justice. Any interpretation which eludes substantive justice is not to be followed. Observing that procedure law is not to be a tyrant, but a servant, in 2009 1 L.W. 997 (Sambhaji and others v. Gangabai and others), the Supreme Court held as under:-
"12. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. A Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
The same principle was reiterated in (1976) 1 SCC 719 (The State of Punjab and another v. Shamlal Murari and another).
28. The Supreme Court in (2007) 9 Scale 202 (R.N.JADI & BROTHERS V. SUBHASHCHANDRA), considered the procedural law vis-a-vis substantive law and observed as under:
"9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."
29. The Supreme court in 2011(6) Scale 1 - MAHADEV GOVIND GHARGE & OTHERS VS. THE SPECIAL LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT, JAMKHANDI, KARNATAKA, reiterated the legal position regarding procedural law and observed:
"28. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold......"
30. In 2011(1) Scale 469 RAJENDRA PRSAD GUPTA VS. PRAKASH CHADNRA MISHRA & OTHERS, the issue before the Supreme Court was as to whether an application will be maintainable before the trial Court to withdraw the application filed earlier for withdrawal of the suit. The trial Court dismissed the application as not maintainable. The High Court held that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without there being any order on the withdrawal application and as such another application at a later point of time to withdraw the suit was not maintainable. When the matter was taken up in appeal, the Supreme Court disagreed with the views expressed by the High Court. While allowing the appeal, the Supreme Court observed thus:
"5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted."
31. Considering the facts and circumstances, we are of the view that learned single Judge rightly allowed the application on payment of costs of Rs.25,000/- payable to the Tamil Nadu Mediation and Conciliation Centre, High Court, Madras. Allowing application under Order IX, Rule 7/Order IX, Rule 13 C.P.C. is the discretion of trial Court. In case the trial Court has exercised the discretion it was not open to the Appellate Court to upset the order, unless there was improper exercise of discretion. We do not find any illegality warranting interference with the order of single Judge and as such the appeal is liable to be dismissed.
32. In the result, the Original Side Appeal is dismissed. Consequently, connected M.P. is closed. No costs.
bbr Copy to The Sub-Assistant Registrar, Original Side, High Court, Madras