Madras High Court
Kennady vs Sivamani on 31 August, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.08.2017
Date of Reserving the Order
Date of Pronouncing the Order
23.08.2017
31.08.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.R.P.(NPD) (MD) No.297 of 2007
and
M.P.(MD) No.1 of 2007
Kennady ... Petitioner
-vs-
Sivamani ... Respondent
PRAYER: Civil Revision Petition is filed, under Section 115 of the Code of
Civil Procedure, to set aside the fair and decreetal order, passed in
I.A.No.346 of 2006 in O.S.No.58 of 2003, on the file of the District Munsif
Court, Thanjavur, dated 01.09.2006.
!For Petitioner : Mr.M.P.Senthil
^For Respondent : Mr.V.Panneerselvam
:ORDER
The civil revision petition is directed against the fair and decreetal orders, dated 01.09.2006, passed in I.A.No.346 of 2006 in O.S.No.58 of 2003, on the file of the District Munsif Court, Thanjavur.
2. The petitioner / defendant has suffered an ex parte decree in the suit laid by the respondent / plaintiff. To set aside the ex parte decree passed against him, it is found that the petitioner / defendant has preferred an application. However, inasmuch as there is a delay of 558 days in preferring the said application, the petitioner / defendant has preferred an application in I.A.No.346 of 2006 to condone the said delay.
3. According to the petitioner / defendant, at the time when the suit was posted for hearing, he had been at abroad and he had given a power of attorney to his wife to appear on his behalf in the suit and on that date, as his wife did not appear and also not given proper intimation to his counsel, the Court below had passed the ex parte decree and after the petitioner / defendant returned to India and finding that an ex parte decree has been passed in the said suit, he has been necessitated to lay the application to set aside the same and hence, the delay.
4. The application preferred by the petitioner / defendant for the condonation of the delay is resisted by the respondent / plaintiff contending that the petitioner / defendant had earlier appointed one Nopul Praveen Kumar as his power agent in I.A.No.395 of 2003 and when the same did not yield the result, the petitioner / defendant, thereafter, appointed his wife as the power agent in I.A.No.643 of 2004 and the said application having also been rejected as of the earlier application, according to the respondent / plaintiff, consequently the petitioner / defendant having not taken part in the suit proceedings, resulted in passing the ex parte decree against him and hence, according to the respondent / plaintiff, the petitioner / defendant knowing very well about the progress of the suit proceedings right from the inception and not endeavouring to contest the case on merits in the manner known to law, deliberately left the suit to go for ex parte and therefore, the plea of the petitioner / defendant that he is not aware of the ex parte decree passed against him on the footing that he was in foreign country and hence, the delay had occurred is false and pleaded only for the purpose of this application and hence, the application is liable to be dismissed.
5. In support of the contentions of the respective parties, no oral and documentary evidence has been adduced before the Court below.
6. The Court below, on a consideration of the rival contentions put forth by the respective parties, dismissed the application preferred by the petitioner / defendant. Impugning the same, the present civil revision petition has been preferred.
7. The petitioner / defendant has suffered an ex parte decree in the suit laid by the respondent / plaintiff. The petitioner / defendant has preferred an application to set aside the ex parte decree passed against him. Inasmuch as there is a delay of 558 days in preferring the said application, he had preferred an application in I.A.No.346 of 2006 to condone the said delay. The reasons given for the condonation of the delay is that at the time when the suit was listed for hearing, the petitioner / defendant was at abroad and though he had given power of attorney to his wife to appear on his behalf in the suit, his wife did not prosecute the matter properly and did not apprise the counsel of the matter and hence, the petitioner / defendant was set ex parte and only on the petitioner / defendant coming to India, he had come to know about the ex parte decree passed against him and hence, the delay.
8. Per contra, it is the case of the respondent / plaintiff that the petitioner / defendant had earlier given the power to one Nopul Praveen Kumar and the attempt of the power agent to represent on behalf of the petitioner / defendant in the suit did not yield the result and hence, I.A.No.395 of 2003 with reference to the same had come to be dismissed and thereafter, the petitioner / defendant has given the power to his wife in I.A.No.643 of 2004 and the said application was also dismissed by the Court and therefore, according to the respondent / plaintiff, the case of the petitioner / defendant that he had come to know of the ex parte decree only after he had come to India as such cannot be accepted. The petitioner / defendant, knowing very well about the progress of the suit proceedings right from the inception and not endeavouring to contest the case on merits in the manner known to law, deliberately left the matter to go for ex parte and without assigning any sufficient cause to condone the delay, according to the respondent / plaintiff, the application is liable to be dismissed.
9. It is found that inasmuch as the petitioner / defendant is fully aware of the institution of the suit, he is found to have earlier appointed one Nopul Praveen Kumar as his power agent. However, it is found that the claim of the power agent to represent the petitioner / defendant in the suit proceedings in I.A.No.395 of 2003 ended in vein. As against the dismissal of the said application, it appears that no revision or appeal has been preferred. It is, thus, found that the petitioner / defendant would have been informed about the said development by the power agent Nopul Praveen Kumar. It is found that thereafter, the petitioner / defendant had appointed his wife as the power agent and the attempt on the part of the wife to represent the petitioner / plaintiff in the suit proceedings in I.A.No.643 of 2004 also did not succeed and the said application was also dismissed. Even as against the said dismissal, it appears that no appeal or revision has been preferred by the petitioner / defendant. It could, therefore, be seen that the petitioner / defendant would have been informed about the above said development by his wife. Therefore, the case of the petitioner / defendant that he is not aware of the suit proceedings or its progress or about the fate of the power deeds executed by him in favour of Nopul Praveen Kumar and his wife as such cannot be accepted straightaway. It is, therefore, found that the petitioner / defendant would have been in the know of things about the above said developments and thus, it is seen that the petitioner / defendant has not taken proper and adequate steps to represent him in the suit proceedings and deliberately delayed the matter one way or the other. Even if, according the petitioner / defendant, the above said applications had not been entertained by the Court below improperly and if really the petitioner / defendant had been aggrieved over the same, as rightly argued by the learned counsel for the respondent / plaintiff, the petitioner / defendant should have taken proper and adequate steps impugning the said orders. However, it is found that no such steps have been initiated by the petitioner / defendant.
10. Now, according to the petitioner / defendant, only after he returned to India from abroad, he had come to know about the ex parte decree passed against him and therefore, the delay had occurred. However, considering the facts and circumstances of the case and as rightly determined by the Court below, it is found that the petitioner / defendant is fully aware of the ex parte decree passed against him even on the date when same had been passed and even thereafter, he did not evince any interest to set aside the same immediately in the manner known to law by appropriate application and the present application laid to condone the delay of 558 days without showing sufficient cause with reference to the same, as rightly argued by the learned counsel for the respondent / plaintiff, is only to delay the proceedings and not otherwise and therefore, it is found that he has not moved little finger to set aside the ex parte decree passed against him, though he had full knowledge of the same.
11. That apart, the petitioner / defendant has also not endeavoured to subject himself for examination in the Court below in support of his case and this would only go to show that inasmuch as the petitioner / defendant has no cause at all to condone the delay and the cause pleaded by him is also not true and thereby the petitioner / defendant being not able to substantiate the same, he had not shown interest to enter into the witness box. In such view of the matter, it is found that the Court below has rightly determined that the petitioner / defendant has not adduced any sufficient cause to condone the delay of 558 days, which is huge and inordinate and accordingly, dismissed the application preferred by the petitioner / defendant.
12. In support of his contentions, the learned counsel for the petitioner / defendant placed reliance upon the decisions reported in 2014 (3) MWN (Civil) 465 [Bharat Petroleum Corporation Ltd., vs. C.S.Prakasa Rao], 2015 (3) MWN (Civil) 592 [The Commissioner, Rameshwaram Municipality, Ramanathapuram District vs. Subbuthayammal and others] and 2016 (5) CTC 117 [Sarasu vs. Ravi]. However, it is found that as rightly argued by the learned counsel for the respondent / plaintiff, in the cases involved in the above cited authorities as the cause shown for the delay was found to have been sufficiently established and proved, the delay involved in the above cited decisions had been condoned. However, insofar as this case is concerned, it is found that no cause has been shown by the petitioner / defendant for the condonation of the delay and hence, the above cited decisions, as rightly argued by the learned counsel for the respondent / plaintiff, are not applicable to the facts and circumstances of the case at hand and therefore, the same are not taken into consideration and when it is further found that the petitioner / defendant had been fully aware of the ex parte decree passed against him in the matter, his act in keeping mum without taking further steps to set aside the same would only go to show that the petitioner / defendant is not interested in prosecuting the case and hence, no indulgence can be shown in his favour.
13. In the light of the above discussions, it is found that the impugned order of the Court below does not call for interference. Resultantly, the civil revision petition is dismissed with costs. Consequently, the connected miscellaneous petition is closed.
To:
The District Munsif, Thanjavur. .