C. Seerangan vs M. Subramaniam

G. Rajasuria, J.—Animadverting upon the order dated 18.1.2008 passed in CMA No. 23 of 2008 by the Principal Sub Court, reversing

the order dated 10.08.2007 passed in I.A. No. 73 of 2007 in O.S. No. 291 of 2004 by the District Munsif cum Judicial Magistrate, Perundurai,

this civil revision petition is focussed at the instance of the defendant.

Heard both sides.

The long and short of the matter would run thus:

The respondent/plaintiff filed the suit for recovering a sum of Rs. 72,225/-. During trial, P.W.1 was examined, but not cross examined by the

defendant. Hence, the lower Court passed ex parte decree. Subsequently, without any delay, apparently I.A. No. 73 of 2007 was filed under

Order 9 Rule 13 of CPC to get the ex parte decree set aside. After hearing both sides, the lower Court dismissed the I.A. No. 73 of 2007. Being

aggrieved by and dissatisfied with the said order of dismissal, the defendant preferred CMA No. 23 of 2008 and after hearing both sides, the

appellate Court passed conditional order to the effect that 50% of the suit amount should be deposited in the Court for getting the ex parte decree

set aside.

Challenging and impugning the said order of the appellate Court in imposing such onerous condition, this revision has been filed on the main

ground that inasmuch as the application under Order 9 Rule 13 of CPC was filed without any delay, the appellate Court was not justified in

imposing such onerous condition and in support of the same, the learned Counsel cited the following two decisions:

(i) G.P. Srivastava Vs. Shri R.K. Raizada and Others,

(ii) D.K. Bhaskaran Vs. Barton Trust,

There could be no quarrel over such a proposition as stood enunciated and exemplified in those two decisions and I am of the view that the

imposition of deposit of 50% of the suit amount as a condition precedent for getting the ex parte decree set aside is onerous and it has to be

remembered that is not even a suit under Order 37 of CPC. Adding fuel to the fire, here the contention of the defendant was that the suit pro note

is a fabricated one. Keeping that in mind, I would like to set aside the onerous condition imposed by the lower Court. However, this Court cannot

lose sight of the fact that there were laches on the part of the defendant in participating in the proceedings as well as in getting the I.A. No. 73 of

2007 processed before the Court diligently.

The learned Counsel for the plaintiff appropriately and appositely, convincingly and correctly highlighted and spotlighted the relevant provisions

to the effect that even though apparently and obviously, axiomatically and patently the application was presented in the year 2005, yet the

petitioner got it numbered only in the year 2007 and by that surreptitiously the defendant gained nearly two years time in the litigative process,

which cannot be looked lightly by this Court. I would like to look askance at such a conduct. Undoubtedly, it is one thing that the party should

have got it numbered at the earliest point of time, yet it is another thing that the Court also should have been diligent in numbering the I.A. at the

earliest. However, if the delay was due to the laches on the part of the defendant in getting the I.A. numbered, then the Court should have rejected

the application itself at the numbering stage.

The abominable and reprobative attitude on the part of some litigants in filing applications for name sake and keeping them alive without getting

them numbered, has to be deprecated in unmistakable terms. So far as this case is concerned, I do not for a moment say that it has happened due

to the defendant or because of the staff of the Court. But one thing with certainty I could say, that the defendant was negligent in not getting the

I.A. numbered much earlier than 2007. As such, for that I would like to impose a cost of Rs. 5,000/- (Rupees five thousand only) as a condition

precedent for getting the ex parte decree set aside by setting aside the onerous condition imposed by the lower Court in ordering deposit of 50%

of the suit amount in Court. The cost shall be paid by the petitioner to the respondent by 31st July 2010 and if there is any default, this order will

not enure to the benefit of the petitioner and that the CMA itself would stand dismissed.

Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.