Madras High Court
P.Subramanian (Died) vs S.Viswasam on 20 December, 2010
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/12/2010 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(NPD)No.219 of 2004 and C.M.P.No.1144 of 2004 1.P.Subramanian (died) 2.S.Kaliammai 3.R.Rameswari 4.S.Ramachandran 5.S.Radhakrishnan 6.S.Ragavan 7.S.Rajaram 8.S.Backialakshmi [Petitioners 3 to 8 were impleaded as per order of this Court dated 06.12.2005 made in C.M.P.Nos.7651 to 7653 of 2005] ... Petitioners Vs. S.Viswasam ... Respondent Prayer Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure praying to set aside the order and decretal order dated 10.08.2004 made in I.A.No.27 of 2004 in O.S.No.109 of 1999 on the file of the Sub Court, Devakottai. !For Petitioners ... Mr.V.Sitharanjandas ^For Respondent ... Mr.R.Sundar Srinivasan ******** :ORDER
****** This Civil Revision Petition is directed against the order dated 10.08.2004 in I.A.No.27 of 2004 in O.S.No.109 of 1999 on the file of the learned Subordinate Judge, Devakottai, whereby and whereunder the request made by the petitioners 1 and 2 to condone the delay of 1147 days in filing the application to set aside the exparte decree dated 27.09.2000 was dismissed.
BACKGROUND FACTS:
2. The suit in O.S.No.109 of 1999 was instituted by the respondent against the petitioners 1 and 2 (hereinafter referred to as "the petitioners") praying for a decree of specific performance based on the agreement stated to have been executed between the parties on 23.01.1997. In the said suit, notice was issued to the petitioners. Since the house was found locked, summons was not served on the petitioners. Thereafter, substituted service was effected by taking paper publication. The petitioners were declared exparte on 19.09.2000 and subsequently, exparte evidence was taken and accordingly, the suit was decreed as per judgment and decree dated 27.09.2000.
3. Subsequently, the decree was executed by registering the sale deed in the name of the respondent. Thereafter, the respondent filed an application in E.A.No.278 of 2003 to put him in possession of the property.
Notice was issued in the said execution application. Notice was served by affixture and immediately, the petitioners preferred an Interlocutory Application in I.A.No.27 of 2004 to set aside the exparte decree after condoning the delay of 1147 days.
4. In the affidavit filed in support of the application, the petitioners have stated that they were staying at Karaikudi along with their son Rajaram and as such, they were not aware of the suit proceedings. According to the petitioners, no notice was issued to them either in the suit or in the execution application. Notice issued in the execution application alone was affixed on the outer wall of the house and it was noticed by their son Rajaram on 14.12.2003. Accordingly, they have filed the application to condone the delay of 1147 days in filing the application to set aside the exparte decree.
5. The application was opposed by the respondent by filing counter. According to the respondent, the petitioners were fully aware of the proceedings and they deliberately avoided receipt of summons. They have falsely stated that they were residing at Sivagangai along with their children. However, the fact remains that the petitioners were residing in the address shown in the plaint. The respondent further contended that in execution of the decree, a registered sale deed was executed in his favour and only for the purpose of delivery of possession, he has filed the execution application. It was further contended that with a view to delay the process and to cause him inconvenience, the application has been filed belatedly.
THE EVIDENCE:
6. Before the learned Judge, the second petitioner was examined as P.W.1 and her son Rajaram was examined as P.W.2. The respondent was examined as D.W.1. The second petitioner, in her evidence, stated that she was continuously residing along with her eldest son at Karaikudi since five years prior to her examination and the house was under lock and key. No notice was issued to them either in the suit or in the execution application. The second petitioner maintained that neither she nor her husband were in the know of things with respect to the civil suit stated to have been filed by the respondent or the subsequent execution petition. Her evidence was corroborated by P.W.2.
7. The respondent was examined as D.W.1. According to D.W.1, the petitioners were residing at Kallal Village and as such, it was not correct on their part to say that they were residing elsewhere. During his cross- examination, he admitted that he was not aware as to whether summons was served on the petitioners in the suit. He also admitted that he has not identified the petitioners' house to the concerned bailiff.
THE JUDGMENT BELOW:
8. The learned trial Judge considered the application filed by the petitioners in the light of the evidence adduced by the parties. The learned trial Judge found that the daughter of P.W.1 was residing nearer to the house of the petitioners at Kallal and as such, the statement of P.W.1 to the effect that the neighbours were not aware of her residence at Karaikudi was not acceptable. The learned trial Judge was of the view that in case the house was under lock and key for a period of five years, there was no necessity for taking electricity readings and as such, the very story projected by P.W.1 was not bona fide. The learned trial Judge also observed that in case the delay is set aside at this point of time, it would cause substantial prejudice to the respondent. Accordingly, the application was dismissed. Feeling aggrieved by the said order, the petitioners are before this Court.
9. During the pendency of the Civil Revision Petition, the first petitioner died and the petitioners 3 to 8 were brought on record as Legal Representatives.
THE CORE ISSUE:
10. The primary issue to be decided in the Civil Revision Petition is whether the petitioners being defendants in the suit in O.S.No.109 of 1999 have proved their case in support of the delay in filing the application to set aside the ex parte decree.
OVERVIEW OF LOWER COURT PROCEEDINGS:
11. In order to verify the suit proceedings, I have summoned the entire records in O.S.No.109 of 1999.
12. It is found that after registering the plaint, summons was issued. When the matter came up on 07.01.2000, it was found that the defendants were not served. Therefore, it was recorded that the defendants were not found. Accordingly, the learned Judge adjourned the matter to be posted on 18.01.2000 to await notice. When the suit was taken up on 18.01.2000, the Presiding Officer recorded that the defendants were not found and accordingly, it was adjourned to 01.02.2000. Again an endorsement was made on 01.02.2000 that the defendants were not found. Accordingly, fresh notice was issued to the defendants returnable by 29.02.2000. Since batta was not paid, fresh summons was issued to the defendants on 29.02.2000 indicating the date of next hearing as 14.03.2000. It was found that batta was not paid and as such, the Court permitted the plaintiff to pay batta with petition. The matter was called again on 17.04.2000. It was found that the summons to the defendants were not served. When the matter was taken up on 21.06.2000, it was found that the door was locked. There is an endorsement in the notes paper that the notice was affixed. The matter was adjourned to 11.07.2000.When the suit was taken up on 11.07.2000, the Court made an endorsement that the summons is yet to be returned and accordingly, adjourned the matter to 01.08.2000. Again, there was an endorsement regarding affixture made on 18.08.2000. There was a further endorsement on 18.08.2000 regarding steps to be taken. The matter was adjourned to be posted on 28.08.2000. The application filed by the respondent in I.A.No.24310/2000 for paper publication was allowed on 23.08.2000 indicating the date of publication as 19.09.2000. Subsequently, the matter was taken up on 19.09.2000. The respondent has made the publication and accordingly, the defendants were set exparte. The matter was adjourned to be posted on 27.09.2000 for exparte evidence. The suit was taken up on 27.09.2000. The plaintiff was examined as P.W.1 and Exs.A.1 to A.3 were marked on his side. The learned trial Judge has recorded that the claim proved and the suit is decreed as prayed for with a direction to deposit the balance consideration.
ANALYSIS:
13. It is a matter of record that the petitioners filed the application only after affixture of notice in E.A.No.278 of 2003. The petitioners were aged 80 and 70 years respectively as on the date on which the suit was instituted by the respondent. The petitioners in their affidavit filed in support of the application contended that they were residing along with their eldest son at Karaikudi and as such, they were not aware of the summons issued by the Court in O.S.No.109 of 1999. Similarly, they have pleaded ignorance about the notice issued in the execution proceedings. According to the petitioners, P.W.2 went to the property on 14.12.2003 and it was noticed that the Court summons was affixed there indicating the pendency of execution application. It was only thereafter, they have filed the application to set aside the exparte decree. P.W.1 in her evidence before the trial Court materially corroborated her version in the affidavit filed in support of the application in I.A.No.27 of 2004. The first petitioner was aged about 85 years by that time. Even the second petitioner was aged 73 years when she was examined as P.W.1. The evidence of P.W.1 was supplemented by her son by examining himself as P.W.2. The respondent was examined as D.W.1. In fact, D.W.1 has only denied the case pleaded by the petitioners. He has not said in so many words about the knowledge of the petitioners with respect to the Court proceedings.
14. The learned trial Judge conducted the matter in a highly technical manner and thoroughly examined the evidence of P.W.1 and P.W.2 and arrived at a finding that the petitioners have not produced any documents to prove the treatment taken by the first petitioner or their continuous residence at Karaikudi. According to the learned Judge, the very fact that electricity readings were taken continuously for the past five years was a clear indication that the house was not under lock and key. The fact that the daughter of P.W.1 was staying in the very same Village was also taken as a pointer to show that the petitioners got constructive knowledge about the Court proceedings.
15. Though the trial Court has recorded that the summons were affixed, there is nothing on record to show that such a report was made by the process server of the Court. Admittedly, the process server was not examined before the trial Court.
THE STATUTORY SCHEME:
16. Order 5 of Code of Civil Procedure deals with issue and service of summons. Order 5 Rule 17 of the Code of Civil Procedure indicates the action to be taken in case the defendant refuses to accept service or cannot be found.
Similarly, Rule 18 of Order 5 mandates that the serving officer shall endorse a return stating the time when and the manner in which the summons was served and the name and address of the person who identified the delivery or tender of the summons. Similarly, Order 5 Rule 19 mandates the examination of serving officer, in case the return memo was not supported by an affidavit of the said officer. The relevant provisions read thus:-
"17. Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant [who is absent form his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the other door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
18. Endorsement of time and manner of service.- The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.
19. Examination of serving officer.- Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit."
17. The trial Court records does not contain the affidavit filed by the process server indicating that the notices issued to the petitioners were actually affixed on the outer wall of their residence. The said officer was not examined before ordering substituted service. The record of proceedings gives a clear indication that the process server was not in a position to effect service on the petitioners. The endorsement proceeds as if the defendants were not found. Therefore, it is evident that it was not a case of refusal on the part of the defendants to receive the notice.
18. The fact that the daughter of P.W.1 was residing near the address shown in the summons was also taken as a point against the petitioners. In case the daughter of the petitioners or their son were residing at Kallal, nothing prevented the process server to obtain their correct address and to make an attempt to effect service on them. Therefore, the observation made by the learned Judge against the petitioners equally applies to the respondent. When it was found that the summons issued to the petitioners got returned on numerous occasions, attempt should have been made to ascertain the correct address and to issue summons in such address. Even though the Court made an endorsement that the defendants were not found, summons were issued time and again in the very same address. There is nothing on record to show that a serious attempt was made by the process server to effect service.
VIEWS OF THE SUPREME COURT:
19. The Supreme Court in Sushil Kumar Sabharwal v. Gurpreet Singh [2002(5) SCC 377], considered the provisions of Order 9 Rules 13 and 16 as well as Order 5 Rules 17 and 18 and observed that before exercising the discretion of passing an exparte decree, the trial Court must be satisfied that due service of summons was proved. The relevant paragraph in the said judgment reads thus:-
"12. The provision contained in Order 9 Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 CPC, the case would not have proceeded ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation."
20. The Supreme Court in Sushil Kumar Sabharwal's case cited supra further observed that even in the case of affixture, the said act should have been witnessed by persons who identified the defendant and his shop and he should actually witness such procedure.
21. Even in the case on hand, there was no such endorsement made by the process server. Not even a report to that effect is found in the lower Court records. Therefore, it is not clear as to whether summons was really affixed on the outer wall of the residence of P.W.1 and in whose presence such affixture was made.
22. The trial Court, after setting the defendants exparte, posted the matter for evidence and after recording the evidence on the adjourned day, decreed the suit very mechanically. The prayer in the suit was for a decree of specific performance. Even though it was purely a discretionary remedy, there was no attempt made by the trial Court to consider the issue as to whether the respondent has made out a case for grant of such equitable remedy. The decree was granted in a very casual manner as if the Court was bound to grant a decree, in case the defendants were set exparte. The judgment and decree in O.S.No.109 of 1999 contains no reasons much less minimum reasons for granting a decree of specific performance.
23. The learned trial Judge was more concerned about the length of delay than the reason for such delay. In his attempt to reject the application, the learned trial Judge omitted to consider the mandatory duty cast on the Court before setting the defendants exparte. There is nothing on record to show that the affidavit of the process server was considered by the trial Court. The process server was not examined. The record of proceedings clearly shows that the process server was not able to locate the defendants. In such circumstances, the Court should have obtained a report from the process server or he should have been examined before setting the defendants exparte.
24. It is trite that sufficiency of the explanation alone is the relevant criteria and not the number of days. Similarly, there is no presumption of any kind that the delay in approaching the Court is deliberate in nature and as such, Section 5 of the Limitation Act should not be exercised in case of unreasonable delay.
THE LEGAL PRINCIPLES:
25. The Supreme Court in N.Balakrishnan vs. M.Krishnamurthy [1998(7) SCC 123] considered the nature and ambit of Section 5 of the Limitation Act and more particularly, cases involving delay of very long range and observed thus:
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the rights of parties.
They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
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13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
26. In a recent decision in Indian Oil Corporation vs. Subrata Borah Chowlek [2010(12) Scale 209], involving a Government undertaking, the Supreme Court once again considered the expression "sufficient cause" with reference to Section 5 of the Limitation Act and observed thus:
."7....................................................................... ............................ It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a mater of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. (SEE:Shakuntala Devi Jain vs. Kuntal Kumari & Ors. ; The State of West Bengal vs. The Administrator, Howrah Municipality & Ors.; N.Balakrishnan vs. M.Krishnamurthy; Sital Prasad Saxena vs. Union of India & Ors.)
8. In Ramlal, Motilal & Chhotelal vs. Rewa Coalfields Ltd., this Court held that:
"In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. Tis discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."
9. Similarly, in Ram Nath Sao Alias Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors., this Court observed that:
"But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
27. In Improvement Trust v. Ujagar Singh [2010(6) SCC 786], the Supreme Court observed that justice can be done only when the matter is considered on merits and in accordance with law rather than to dispose of it on such technicalities.
28. The mere fact that the sale deed was executed in favour of the respondent alone cannot be a reason to reject the application filed by the petitioners to condone the delay. Admittedly, the property is in the possession of the petitioners. The judgment in O.S.No.109 of 1999 was also not on merits. It was purely an exparte decree without considering the merits of the matter. There was nothing in the judgment and decree to show that the Court has considered the principles governing the grant of discretionary remedies before decreeing the suit. Absolutely, there were no reasons shown in support of the judgment.
THE CONCEPT OF REASON:
29.The Supreme Court in M/s.Kranti Associates Pvt. Ltd and Anr. vs. Sh.Masood Ahmed Khan & Ors. [2010(9) Scale 199], indicated the relevancy of giving reasons in orders passed by the authorities. The observation reads thus:-
"15.The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and others vs. Union of India and others reported in AIR 1970 SC 150.
...
18. This Court always opined that the face of an order passed by a quasi- judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the `inscrutable face of a Sphinx'."
30. In Maya Devi (dead) through Lrs. vs. Raj Kumari Batra (dead) through Lrs. And ors. [2010 (9) Scale 262], the Supreme Court reiterated the necessity to record reasons in support of orders, especially in cases wherein the orders are appealable. The observation reads thus :-
"14. It is in the light of the above pronouncements unnecessary to say anything beyond what has been so eloquently said in support of the need to give reasons for orders made by Courts and statutory or other authorities exercising quasi judicial functions. All that we may mention is that in a system governed by the rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repository of such power. There is nothing like a power without any limits or constraints. That is so even when a Court or other authority may be vested with wide discretionary power, for even discretion has to be exercised only along well recognized and sound juristic principles with a view to promoting fairness, inducing transparency and aiding equity.
15.What then are the safeguards against an arbitrary exercise of power? The first and the most effective check against any such exercise is the well recognized legal principle that orders can be made only after due and proper application of mind. Application of mind brings reasonableness not only to the exercise of power but to the ultimate conclusion also. Application of mind in turn is best demonstrated by disclosure of the mind. And disclosure is best demonstrated by recording reasons in support of the order or conclusion.
16. Recording of reasons in cases where the order is subject to further appeal is very important from yet another angle. An appellate Court or the authority ought to have the advantage of examining the reasons that prevailed with the Court or the authority making the order. Conversely, absence of reasons in an appealable order deprives the appellate Court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own."
31. The learned trial Judge, other than extracting a portion of the evidence in the order, appears to have not made a genuine attempt to consider the question as to whether the petitioners have made out a case for condoning the delay or there was sufficient cause which precluded them from filing the application to set aside the exparte decree within the time permitted by law. In fact, other than recording that the reasons assigned by the petitioners for condoning the delay were not acceptable, the learned trial Judge has not supplemented reasons for arriving at such a conclusion. Therefore, I am of the view that the order impugned in this Civil Revision Petition is liable to be set aside.
32. The other question relates to the relief to be granted in this Civil Revision Petition.
33. It is true that the respondent has not stated in clear words about the lack of bona fides in the case projected by the petitioners. It was more of a simple denial than challenging the question of sufficient cause specifically. The learned trial Judge has also not made an attempt to consider the issue of sufficient cause. There was no reference about the records in the order passed by the trial Court. Therefore, I am of the considered view that the matter requires fresh consideration by the learned trial Judge.
CONCLUSION:
34. In the result, the impugned order dated 10.08.2004 in I.A.No.27 of 2004 in O.S.No.109 of 1999 is set aside and the matter is remitted to the learned trial Judge for fresh consideration on merits and as per law and in the light of the legal principles indicated above. Such exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. It is open to the learned trial Judge to pass appropriate orders on merits and as per law without in any way being influenced by the observations made in this order, as those observations were made only for the purpose of deciding the Civil Revision Petition.
35. In the upshot, I allow the Civil Revision Petition as indicated above. Consequently, the connected miscellaneous petition is closed. No costs.
SML To The Sub Court, Devakottai.