Madras High Court
V.Srinivasagam vs Vanniya Community Development Trust on 12 February, 2015
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2015 Coram: THE HONOURABLE Mrs.JUSTICE ARUNA JAGADEESAN C.R.P.(NPD).No.2499 of 2011 and M.P.No.1 of 2011 V.Srinivasagam .. Petitioner Vs. Vanniya Community Development Trust, Rep. By its Managing Trustee, N.v.Bhoopalan, No.61, Velachery Main Road, Velachery, Chennai 600 042. .. Respondents Prayer Civil Revision Petition filed under Section 115 of C.P.C. Against the order dated 14.06.2011 made in I.A.No.1569 of 2010 in O.S.No.9458 of 2006 on the file of the learned IV Assistant City civil Court, Chennai. For Petitioner : Mr.P.Chandrasekar For Respondents : Mr.S.Senthilnathan O R D E R
This civil revision petition has been filed against the order passed by the learned IV Assistant Judge, City Civil Court, Chennai, passed in I.A.No.1569 of 2010 in O.S.No.9458 of 2006, to condone the delay of 253 days in filing the application to set aside the exparte decree.
2. The respondent herein has filed a suit against the petitioner for recovery of vacant possession of the property and for other reliefs. The petitioner herein did not file the written statement and thus, he was set exparte. When the matter was posted for recording exparte evidence, the petitioner filed an application to set aside the exparte order along with a petition to condone delay, but the same was returned on 29.08.2008 for certain compliance.
3. According to the petitioner, originally, the above matter was entrusted to Mrs.V.G.Manimekalai, who had filed an application to set aside the exparte decree along with the written statement but she did not rectify the defects pointed out by the office. The petitioner was under the impression that the counsel was following up the matter. It is further stated that in the criminal case pending before the XI Metropolitan Magistrate, on the complaint given by the petitioner against the respondent. The copy of the decree was produced by the respondent and only thereafter, the petitioner had come to know about the exparte decree passed against him. It is further stated that immediately thereafter, the petitioner had got the bundle from the erstwhile counsel and entrusted the matter to another counsel who took steps to set aside the exparte- decree.
4. In support of the said averment learned counsel appearing for the petitioner would submit that there was no negligence on the part of the petitioner and it is only due to the above said reasons, the delay had occurred.
5. The said application was resisted by the respondent by filing a counter before the trial Court. Mr.S.Senthilnathan, learned counsel appearing for the respondent would submit that the averments made in the petition clearly shows that the petitioner had not contacted his counsel and he was only prosecuting the criminal case before the XI Metropolitan Magistrate against the respondent. Therefore, he would submit that the reasons given by the petitioner is not acceptable.
6. It appears from the record that for the non-filing of the written statement, an exparte order was passed by the trial Court. Immediately thereafter, the counsel appearing for the petitioner filed a petition to set aside the exparte order dated 10.06.2008 along with the written statement, but the same had been returned.
7. It appears that the husband of the counsel who was dealing with the case, died and hence, she did not follow up the matter which resulted in the exparte decree being passed. Further, the delay had occurred due to non-communication by the erstwhile counsel. In such circumstances, it is difficult to hold that the petitioner was at any point of time negligent in the conduct of the suit. It is also not in dispute that the husband of the counsel who was dealing with the matter, died and she did not attend the court and that is why she could not take the papers and rectify the defects pointed out by the office.
8. The petitioner, after engaging Mrs.V.G.Manimegalai as his counsel, had been under the impression that she would follow up the matter. The party cannot be made to suffer for the bonafide mistake committed on the part of the counsel due to unforeseen circumstances as stated above.
9. At this juncture, it is appropriate to refer to the decision of the Honourable Supreme Court in Matadin vs. Narayanan (AIR 1970 SC 1953) wherein it is held that while considering whether the delay could be condoned, it is observed that the mistake of counsel, may in certain circumstance, be taken into account in condoning the delay.
10. It is to be noted that pending this revision, the petitioner has deposited a sum of Rs.1,00,000/- pursuant to the order, dated 10.12.2014, passed by this Court. Under such circumstances, I am of the view that one more opportunity can be given to the petitioner to contest the case.
11. Accordingly, the civil revision petition is allowed and the order passed by the IV Assistant Judge, City Civil Court, Chennai, in I.A.No.1569 of 2010 in O.S.No.9458 of 2006 dated 14.06.2011, is set aside. The delay of 253 days stands condoned.
12. Both the parties shall appear before the IV Assistant Judge, City Civil Court, Chennai, on 23.02.2015 and on such appearance, the IV Assistant Judge, City Civil Court, Chennai, shall number the application filed to set aside the exparte decree and take it on file and pass appropriate orders within a week. The said trial Court is also directed to dispose of the suit within a period of three months from the date of disposal of the said application to set aside the exparte decree. No costs. Consequently, connected miscellaneous petition is closed.
12.02.2015 Index:Yes/No Internet:Yes/No vsi Note: Issue order copy on 16.02.2015 To The IV Assistant Judge, City civil Court, Chennai.
ARUNA JAGADEESAN,J.
Vsi C.R.P.(NPD).No.2499 of 2011 12.02.2015