Madras High Court
G.Kannan vs D.Ramesh on 8 December, 2015
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.12.2015 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).No.3681 of 2014 and M.P.No.1 of 2014 G.Kannan, Secretary of Gangavalli Union in Mooventhar Munnertra Kazhagam, Sentharapatti town, Gangavalli Taluk, Salem District. ..Petitioner/Defendant Vs. D.Ramesh S/o Duraisamy Reddy, Vice President of Sentharappatti Special Grade Panchayat, Gangavalli Taluk, Salem District. ..Respondent/Plaintiff Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of India, against the order and decretal order dated 18.02.2011 made in I.A.No.471 of 2008 in O.S.No.303 of 2005 on the file of the District Munsif Court, Attur, in so far as imposition of condition is concerned while allowing the petition for condoning the delay in filing the petition to set aside the exparte decree. For Petitioner : Mr.C.Selvaraj Senior Counsel for M/s C.S.Asso. For Respondent : Mr.T.S.Vijayaraghavan --------- O R D E R
This Civil Revision Petition is filed to set aside the fair and decreetal order dated 18.02.2011, made in I.A.No.471 of 2008 in O.S.No.303 of 2005, on the file of the District Munsif Court, Attur.
2.The respondent/plaintiff filed a suit for directing the defendant to pay a sum of Rs.50,000/- to the plaintiff towards loss, damages and compensation, with interest at the rate of 6% p.a., till the same is recovered and for costs of the suit. The petitioner/defendant has appeared before the trial Court and he has not filed written statement. Hence, he was set exparte and an exparte decree has been passed on 04.08.2006. Thereafter, the petitioner/defendant has filed an application in I.A.No.471 of 2008 in O.S.No.303 of 2005 under Order IX, Rule 13 and Section 151 of Civil Procedure Code for setting aside the ex-parte decree dated 04.08.2006 along with the application for condoning the delay of 480 days. After hearing both sides, the application in I.A.No.471 of 2008 was allowed on deposit of 50% of the suit claim. Against which, the present revision petition has been filed by the revision petitioner.
3.The learned counsel appearing for the petitioner would submit that while allowing the application filed under Section 5 of the Limitation Act, the trial Court has imposed heavy cost. He would further submit that instead of depositing 50% of the suit claim, this Court may be directed to pay some cost to the respondent. To substantiate his argument, he relied upon the decision of this Court in Palanisamy v. Muthusamy Gounder reported in 2010 (5) CTC 853 and therefore, he prayed for setting aside the order passed by the trial Court.
4.Resisting the same, the learned counsel appearing for the respondent/plaintiff would submit that after filing of the execution petition in R.E.P.NO.72 of 2007, the petitioner has come forward with this application. He would further submit that the revision petitioner with an intention to drag on the proceedings, has filed the application. So, the trial Court has rightly directed the petitioner to deposit 50% of the suit claim. Hence, he prayed for dismissal of this revision.
5.Considered the rival submissions made on both sides and perused the typed set of papers.
6.The respondent/plaintiff has filed the suit for recovery of loss, damages and compensation to the tune of Rs.50,000/- with interest at the rate of 6% p.a., till the same is recovered and costs of the suit. Even though the petitioner has served, he has not filed written statement. So, he was set exparte and the exparte decree has been passed on 04.08.2006. Thereafter, the respondent has filed R.E.P.No.72 of 2007 for executing the proceedings. The revision petitioner kept quite all along, has filed this application to condone the delay of 480 days for setting aside the exparte decree. Therefore, it shows the malafide intention of the petitioner to drag on the proceedings. It is true, while allowing this application, onerous condition imposed on the petitioner to deposit part of the suit claim is not accordance with law. But, here, the exparte decree has been passed and execution petition has been filed. After receiving notice on the execution petition, the revision petitioner has come forward with this application for setting aside the exparte decree along with the application under Section 5 of the Limitation Act.
7.As per the decision of this Court in Palanisamy v. Muthusamy Gounder reported in 2010 (5) CTC 853, wherein it was held that the suit claim is Rs.65,000/- and the petitioner was directed to deposit Rs.25,000/-, out of the suit claim and also the petitioner was directed to pay a sum of Rs.1000/- to the Legal Aid and to pay Rs.1,000/- to the respondent towards cost. So, the petitioner was imposed three conditions. But, in the case on hand, to partial satisfaction of the decree amount, the petitioner was directed to deposit before the trial Court in O.S.No.303 of 2005. Now, the petitioner is ready to pay some costs as compensation to the respondent, instead of depositing 50% of the suit claim.
8.Considering the same, I am of the view that instead of depositing 50% of the suit claim, the petitioner is directed to pay a sum of Rs.15,000/- (Rupees fifteen thousand only) as cost to the respondent for the delay of 480 days on or before 04.01.2016, failing which, this civil revision petition stands dismissed automatically, without further reference to this Court.
R.MALA,J.
ari
9.For reporting compliance, post the case on 05.01.2016.
08.12.2015 Internet:Yes ari To The District Munsif Court, Attur.
C.R.P(PD).No.3681 of 2014