Latha Sridharan vs Rajkumar and Satheesh Prem Kumar

M. Venugopal, J.—The Petitioner/Respondent/Plaintiff has filed the present Civil Revision Petition as against the order dated 25.02.2008 in I.A. No. 52 of 2006 in O.S. No. 170 of 2004 passed by the learned Principal District Judge,Dindigul.

The Trial Court while passing the order in I.A. No. 52 of 2006 in O.S. No. 170 of 2004, has among other things observed that "the Respondents/Petitioners/ Defendants will have to be provided with an opportunity to set aside the ex-parte decree passed against them and as such that the delay of 525 days in regard to filing of an application to set aside the ex-parte decree has to be executed and resultantly allowed the application subject to the condition that the Respondents/ Petitioners/Defendants to pay a sum of Rs. 500/-(Rupees Five Hundred only)as costs before 25.03.2008 to the Revision Petitioner/Plaintiff and directed the matter to be called on 26.03.2008."

Being dissatisfied with the order passed by the trial Court in I.A. No. 52 of 2006 in O.S. No. 170 of 2004 in allowing the application praying the condone the delay of 525 days in filing the application to set aside the Ex-parte Decree the Civil Revision Petitioner/ Respondent/Plaintiff has filed the present Civil Revision Petition before this Court.

According to the learned Counsel for the Revision Petitioner/Respondent/Plaintiff, the order in I.A. No. 52 of 2006 in O.S. No. 170 of 2004 dated 25.02.2008, passed by the trial Court is against law, weight of evidence and all the probabilities of the case.

It is the contention of the learned Counsel for the Petitioner/Respondent/Plaintiff that the trial Court has failed to appreciate the important fact that the E.P. No. 31 of 2007 as against the Ex-parte Decree has been filed and that the concerned properties has been sold in auction consequent to the order passed by the Executing Court.

The learned Counsel for the Petitioner/Respondent/Plaintiff submits that the Revision Petitioner/Respondent/Plaintiff has filed the suit against the Respondents/Defendants for recovery of loan amount and the amount has been deposited into the Court after selling the properties by means of auction.

The contention of the learned Counsel for the Petitioner/Plaintiff/Respondent is that in E.P. No. 31 of 2007 the concerned properties has been sold and the sale amount has been deposited and all other proceedings pertaining to the suit property are all over and the Respondents/Petitioners/Defendants have filed I.A. No. 52 of 2006 as per Section 5 of the Limitation Act,1963 after a lapse of 525 days.

Advancing her arguments it is the submission of the learned Counsel for the Petitioner/Respondent/ Plaintiff that in E.P. No. 31 of 2007 the notice has been served and that the Defendants have appeared through an Advocate and taken more than a year''s time to file a counter and has not filed counter and subsequently the execution petition is allowed as Ex-parte and the properties have been sold in auction and therefore the I.A. No. 52 of 2006 filed by the Respondents/Petitioners/ Defendants suffers from want of bona fides. But, the trial Court has not looked into these material aspects of the matter in a proper and real perspective which has resulted in serious miscarriage of justice.

In I.A. No. 52 of 2006 the Second Respondent/ Second Petitioner/Second Defendant has among other things averred that they had filed the written statement in the suit and they were contesting their case. Further, the suit has been posted on 10.12.2004, for the cross examination of P.W.1 and it was suggested by the Respondent/Defendant and her husband to settle the dispute in an amicable manner and therefore they had not pursued the case etc. Moreover, in connection with their business they went to Mysore and hence he was not in a position to contact his counsel to take necessary steps to set aside the ex-parte decree dated 10.12.2004.

In the counter filed by the Revision Petitioner/Respondent/Plaintiff it is inter alia stated that the Respondents/Petitioners/Defendants have wantonly dragged on the main suit without cross examining the P.W.1 and that apart P.W.1 has been examined on 02.11.2004 and the main case has been posted for cross examination on different dates like 03.11.2004, 18.11.2004, 29.11.2004 and 10.12.2004 respectively and that reasons for the delay have not been properly explained in the affidavit and that application is a vexatious and frivolous one and the same has been devoid of merits.

It is the evidence of P.W.1(the Second Defendant) in cross examination that only after filing of an execution petition he has come to the Court and also known about the factum of property being sold in auction on 03.10.2007 and that his brother Rajkumar the First Defendant(is doing business in Mysore) and that he has doing the business at Dindigul and Mysore and that the Respondent/Plaintiff(Revision Petitioner) is in possession of the suit property and that he is not paying the rent. Significantly, P.W.1(Second Defendant) in his chief examination has deposed that he has come to know about the decree passed in the suit after the revision Petitioner/Respondent sent a notice to him.

Admittedly, an ex-parte decree has been passed in the main suit in O.S. No. 170 of 2004 on 10.12.2004. The judgment in ex-parte decree in O.S. No. 170 of 2004 reads as follows:

No representation for Defendants. Defendants called absent set ex-parte-claim proved. Suit is decreed as prayed for with costs.

It is evident from the judgment passed in the main suit in O.S. No. 170 of 2004 dated 10.12.2004, that Exs.A1 to A4 have been marked on the side of the Respondent/Plaintiff. In the judgment there is no reference to the marking of Exs.A1 to A4 on the side of the Respondent/Plaintiff. Also there is no discussion about the claim made by the Respondent/Plaintiff and the written statement filed in the suit by the Second Defendant suffice it for this Court to point out that the Ex-parte judgment in O.S. No. 170 of 2004 dated 10.12.2004, has not referred to a qualitative and quantitative discussion about the pleadings of the parties. Conspicuously, discussion about the Exs.A1 to A4 is very much absent in the judgment. In short the Ex-parte judgment passed by the trial Court is bereft of qualitative and quantitative details. A perusal of the judgment it is quiet evident that there is no outline of process of reasoning by the trial Court.

It is true that an ex-parte decree obtained by the Revision Petitioner/Plaintiff against the Respondents/Defendants dated 10.12.2004, in the main suit in O.S. No. 170 of 2004 is valid and binding duly so long it is not set aside by the competent Court concerned. In law a valuable right accrued to the Respondent/Plaintiff cannot be defeated by the Respondent/Defendant.

As far as the present case is concerned the trial Court has exercised its judicial discretion in allowing the application in I.A. No. 52 of 2006 by passing a conditional order on 25.02.2008, by directing the Respondents/Defendants/Petitioners to pay a sum of Rs. 500/-(Rupees Five Hundred only) as costs before 25.03.2008, to the Revision Petitioner/Plaintiff and directed the matter to be called on 26.03.2008. The trial Court has passed a conditional order in I.A. No. 52 of 2006 in allowing the application on 25.02.2008, mainly due to the reason that the Respondents/Defendants/Petitioners will have to be provided with an opportunity to contest the main case in the interest of justice. The said exercise on discretion by the trial Court cannot be said to be an arbitrary or perverse one. Per contra, it is a legal one. Ordinarily, a litigant does not stand to the benefit by filing Section 5 application belatedly. In fact, he runs a serious risk. By allowing the Section 5 application(condone delay application) by the Court concerned there is a possibility that a party is allowed to enter into the main arena of legal proceedings and its cause can be decided on merits. Indeed, the breadth and length of delay is not a material factor in respect of Section 5 application filed under the Limitation Act, 1963. When the technical consideration and delivering substantial justice are pitted again each other then Court will have to take a lenient view in favour of the delivering substantial justice to the parties. It is to be borne in mind that a judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing injustice and it is expected to do so.

Viewed in the perspective, this Court is not inclined to interfere with the order passed by the trial Court in I.A. No. 52 of 2006 in O.S. No. 170 of 2004 dated 25.02.2008. However, this Court to prevent an aberration of justice, directs the Respondents/ Petitioners/Defendants to deposit a further sum of Rs. 1,500/-(Rupees One Thousand Five Hundred only) towards costs to the credit of the suit in O.S. No. 170 of 2004 within a period of one month from the date of receipt of a copy of this order. On such deposit being made, it is open to the Revision Petitioner/Respondent/Plaintiff to withdraw the aforesaid sum of Rs. Rs. 1,500/-(Rupees One Thousand Five Hundred only) by filing a necessary payment out application as per Rule 161 and 163 of Civil Rules of Practice and the trial Court is directed to dispose of the application in the manner known to law. In any event, the trial Court is directed to dispose of the said application within a period of ten days from the date of filing of the same.

In the result, the Civil Revision Petition is disposed of in the above terms, leaving the parties to bear their own costs. Consequently, connected Miscellaneous Petition No. 1 of 2008 is closed.