Document Fragment View

Matching Fragments

10.After filing the suit, the suit in O.S.No.185 of 2008 was posted for filing of written statement on 02.04.2009. But due to suffering from viral fever and the advice of the Doctor to take bed rest, the written statement was not filed on the said date. The petitioner / 3rd defendant states that the suit was posted for filing written statement on 02.04.2009, due to non filing of the written statement by the 3rd defendant, the exparte order was passed on the same day against this defendant. Challenging the said exparte order dated 02.04.2009, the 3rd defendant, who is the petitioner herein filed I.A.No.55 of 2011 in O.S.No.185 of 2008 before the District Munsif Court, Kancheepuram for setting aside the exparte order dated 02.04.2009.

15.Learned Judge further states that the case of the petitioner is that as he was suffering from viral fever and he could not contact his counsel and not filed the written statement, but on perusal of the records shows that inspite of time granted for nearly one year the petitioner has not filed the written statement. Furthermore, he has filed the application to set aside the exparte order only on 08.08.2011 and without filing application to condone the delay in filing this application. The learned Judge has also stated that though the petitioner / 3rd defendant was suffering from viral fever on 17.02.2009 and his counsel continuously appearing before this Court for two years and what prevented the petitioner from filing this application to set aside the exparte order, which has not been clearly stated and established. Furthermore, the petitioner has not filed any condone delay application and he has straight away filed the set aside petition and even in the set aside petition he has not explained the proper reason for each and every day delay. The learned District Munsif has also states that when the matter is in the part heard stage being for declaration and for consequential relief the petitioner / 3rd defendant has not come forward before this Court with proper and reasonable cause. He has filed the application only on 08.08.2011 for setting aside the exparte order dated 02.04.2009. Therefore, the learned District Munsif has stated that the Court of the opinion that it has been contemplated under Order 122 of Limitation Act to set aside the exparte decree and an application has to be filed within the time prescribed period. But the petitioner has not filed the same within the time prescribed by the Limitation Act. He has also stated that the petition is devoid of merits and it is not maintainable and dismissed the application. Challenging the said order of dismissal in I.A.No.55 of 2011 dated 25.08.2011, the present civil revision petition has been filed by the 3rd defendant.

16.Heard Mr.M.Devendran, learned counsel appearing for the petitioner. No appearance for the respondents.

17.This Court while ordering notice of motion, an order of interim stay was granted. It is admitted fact that the petitioner / 3rd defendant was set exparte and the exparte order was passed on 02.04.2009, but for setting aside the exparte order, the Interlocutory Application was filed in I.A.No.55 of 2011 for setting aside the exparte order dated 02.04.2009, which was filed on 08.08.2011 is absolutely maintainable.

(1)N.Ramanathan and another Vs. Meenakshisundaram reported in 2001 (4) CTC 8 this Court held as follows:-
Code of Civil Procedure, 1908, Order 9, Rule 7  Defendants against whom exparte order was passed filed application before trial court to setaside such exparte order on ground that defendants who are employed in Madurai had requested their friend in Karaikudi to follow suit and that on account of communication gap there was non-appearance on 9.9.97 which was neither willful nor wanton  Rule contemplates that such petition could be allowed on costs as suit was pending  Obstructing defendants from participating in suit would be unreasonable  Exparte order should be setaside on costs even if defendants failed to substantiate reasons for non appearance in court and it would be in accordance with principles of natural justice. (2)Valleeswari Vs. Kamalakannan and another reported in 2010 (1) MWN (Civil) 581 this Court held as follows:-