Madras High Court
R.Nachimuthu vs V.Vadivel on 1 December, 2016
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2016
ORDER RESERVED ON:15.11.2016
ORDER PRONOUNCED ON:01.12.2016
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.(MD)No.98 of 2006
R.Nachimuthu ... Petitioner
Vs.
V.Vadivel ... Respondent
PRAYER : This Civil Revision Petition has been filed under Section 115 of
Civil Procedure Code against the fair made in I.A.No.96 of 2005 in
K.S.C.O.S.No.10 of 1999 on the file of the District Judge, Karur, dated
06.12.2005.
!For Petitioner :Mr.M.V.Venkataseshan
^For Respondent :Mr.VR.Shanmuganathan
:ORDER
This Civil Revision Petition has been filed against the order made in I.A.No.96 of 2005 in K.S.C.O.S.No.10 of 1999 on the file of the District Judge, Karur, dated 06.12.2005.
2. The petitioner is the plaintiff in O.S.No.10 of 1999. He filed a suit against the respondent herein for recovery of a sum of Rs.14,94,877/. The said suit was decreed in her favour on 30.04.2002. Aggrieved over the same, the respondent filed I.A.No.96/2005 in K.S.C.O.S.No.10 of 1999 to set aside the ex parte decree passed against him on 30.04.2002. That petition was returned by the trial court, on 09.07.2002 against which the respondent filed C.R.P.No.162 of 2003 before the Principal Bench, Madras and by an order order, dated 19.02.2003, the above Civil Revision Petition, got dismissed, with an observation that if the decree was not a contested one, it is open to the respondent herein to file appropriate petition before the same court by placing acceptable materials. The petitioner by the strength of the decree obtained by her, filed E.P.No.287 of 2002 for sale of the property in question and the sale was also held. However, the Court neither concluded the sale nor confirmed the same due to the false representation made by the respondent that C.R.P.No.162 of 2003 was pending. Therefore, the auction purchaser filed E.A.No.5 of 2004 and also filed E.A.No.6 of 2004 for review of the order passed in E.P.No.287 of 2002. Due to the amendment of the Civil Courts Act, E.P.No.287 of 2002 was transferred to the Principal District Court, Karur and renumbered as E.P.No.8 of 2004. The learned District Judge allowed E.A.Nos.5 and 6 of 2004 in E.P.No.8 of 2004 and the sale was confirmed against which the respondent filed C.M.A.Nos.2966 and 2967 of 2004 and obtained an interim order and subsequently, it was vacated by this Court, by an order dated 29.11.2004 and also observed that the respondent and his counsel were guilty of making wrong statement to the Court below which delayed the proceedings. In that order, it has been specifically held that though C.R.P.No.162 of 2003 was dismissed on 19.02.2003, the respondent misrepresented to the Court that the said C.R.P.No.162 of 2003 was pending.
2.1. After the interim order was vacated, once again, the respondent taking advantage of the observation made in C.R.P.No.162 of 2003, filed I.A.No.96 of 2005 in K.S.C.O.S.No.10 of 2009 to condone the delay of 568 days in filing the petition to set aside the ex parte decree passed in K.S.C.O.S.No.10 of 1999 and the same came to be allowed by the Court below. Hence, the petitioner is before this Court.
3. Learned Counsel for the petitioner would further submit that the decree passed by the Sub-court, Karur in O.S.No.10 of 1999 is not an ex parte decree, but it is a contested decree. The petitioner has transmitted the decree to the Principal District Court, Erode and filed execution petition and the property was sold in court auction and the court auction purchaser got delivery of possession through the Court. The said fact was suppressed by the petitioner before the Court below. Stating all these facts, the petitioner pleaded that the only remedy available to the petitioner is to file an appeal. But, the learned District Judge, Karur, misinterpreting the observation made in C.R.P.No.162 of 2003 condoned the delay of 568 days in setting aside the ex parte order against which the present Civil Revision Petition is filed and prays for appropriate orders.
4. Per contra, learned Counsel for the respondent would draw the attention of this Court to the order passed in C.R.P.No.162/2003, dated 19.02.2003 and C.M.P.Nos.16689 and 16690 of 2004, dated 29.11.2004, wherein, this Court observed that it is open to the respondent herein to file an appropriate petition before the same Court by placing acceptable materials and accordingly, he filed an application to set aside the ex parte order to condone delay petition and the delay was also condoned and therefore, according to him, the order impugned in this Civil Revision Petition is in order and does not need any interference by this Court.
5. Considered the submissions made on either side and perused the material available on record.
6. The crux of the issue revolves around the order passed in CRP.No.162 of 2003 dated 19.02.2003. In the said order, the learned Judge of this Court has specifically observed that the order is a contested one and not an ex parte order. Of course, it is true that in the said order, there is an observation to the effect that if the decree is not a contested one, it is open to the respondent to file an appropriate petition by placing accepting materials to set aside the ex parte decree. In the considered view of this Court, such convincing materials have not been placed by the respondent at the time of filing the petition to condone the delay made in I.A.No.96 of 2005 in K.S.C.O.S.No.10 of 1999 on the file of the District Judge, Karur. Further, the District Judge, Karur, misinterpreted the orders of the Hon'ble this Court and without considering any of the other aspects passed by this Court in C.R.P.(MD).No.162 of 2003 dated 19.02.2003 has simply allowed the petition to condone the delay application filed by the respondent.
7. For better appreciation of the case, it is useful to extract the order made in C.R.P.(MD).No.162 of 2003 dated 19.02.2003, wherein, this Court passed the order in the following manner:-
?Defendant in O.S.No.10 of 1999 on the file of the Subordinate Judge, Karur, aggrieved by the order dated 09.07.2002 returning I.A.No.SR.No.88 of 2002 filed under Order 9 Rule 13 and Section 151 C.P.C. has filed the above revision under Article 227 of the Constitution of India.
2.The petitioner herein has filed the said application seeking to set aside the ex parte decree passed on 30.04.2002. The petitioner has also filed an affidavit explaining the reasons. However, by the order under challenge, the learned Subordinate Judge after noting that the suit in question has been disposed of after full trial (AFT), dismissed the said petition. Though the learned Counsel for the petitioner contents that the decree passed on 30.04.2002 is not a contested one, a perusal of the copy of the judgment and decree in O.S.No.10/1999 shows that the defendant was represented by a counsel, namely, Mr.P.Krishnamoorthy. It is also seen that the defendant has cross-examined some of the witnesses examined on the side of the plaintiff. In such a circumstance, I am in agreement with the conclusion arrived at by the court below and I do not find any error of law or jurisdiction for interference; accordingly, the revision is dismissed.
However, if the decree was not a contested one, it is open to the petitioner to file appropriate petition before the same Court, by placing acceptable materials. C.M.P.No.1727/2003 is also dismissed.?
7.1. It is crystal clear that the afore-said order is a contested order and despite giving opportunity to the respondent herein to prove that the order was an ex parte order, the respondent did not avail of the same and hence, I am not in agreement with the submission of the learned Counsel for the respondent. While vacating the interim order filed by this respondent, this Court has recorded in C.M.P.Nos.16689 and 16690 of 2004, dated 29.11.2004, that the respondent has not come with clean hands. This Court made strong observations against the respondent as to his attitude and even in this petition, he has not narrated any of the proceedings which had taken place earlier and therefore, he is not entitled for any relief.
7.2. As reported in 2009 (7) MLJ 869, Karthikeyan Vs. R.Vasanth and another, if the evidence on record is sufficient for the disposal of the suit, there is no need for adjourning the suit or deferring the decision and final order can be passed and that order cannot be said to be an ex parte order. The said principle is squarely applicable to the present case on hand and therefore, I do not find any hesitation to set aside the order passed by the Court below in I.A.No.96 of 2005 in K.S.C.O.S.No.10 of 1999 on the file of the District Judge, Karur, dated 06.12.2005 and accordingly, it is set aside.
8. In the result, this Civil Revision Petition is allowed. No costs.
To The District Judge, Karur..