M. Periasamy and Others vs Korrai Kula Kongu Vellalargal represented by S. Ramasamy Gounder and Others

A. Kulasekaran, J.—Defendants 5 to 21 are the petitioners in this revision. The Plaintiffs have filed the suit O.S. No. 503 of 1994 for a

declaration to declare that the suit temples are denominal exclusively belonged to the plaintiff''s sect and to restrain the defendants and their men

from in any way interfering with the management or affairs of the suit temples by granting permanent injunction.

Pending suit, the petitioners herein were impleaded as defendants 5 to 21 in the suit by way of an application filed by them to implead. The

petitioners herein were set exparte on 28-01-1998 on the ground that they have not filed written statement. The petitioners herein have filed I.A.

No. 519 of 2002 under Order 9 Rule 7 and Section 151 of CPC to set aside the ex-parte decree passed against them on 28-01-1998, which was

dismissed by the trial court, hence this revision.

The case of the petitioners before the trial court is that they were unable to file written statement in time since their counsel has inadvertently sent

the written statement duly signed by them along with the papers relating to WP No. 4484 of 1995 to the counsel at Madras. The

Plaintiffs/respondents have opposed the said application on the ground that the petitioners were set ex-parte on 28-01-1998 but they have filed the

petition only on 18-02-2002 i.e., after four years from the date of exparte order. Moreover, the written statement filed along with the setting aside

petition was sworn only on 18-02-2002; that no valid reason was assigned to set aside the exparte order and in the absence of good and

reasonable cause for their absence, the Court shall not set aside the exparte order.

The trial court found that on behalf of the petitioners herein, Vakalath was filed on 27-06-1997 but the written statement was not filed till 28-

01-1998, hence they were set exparte. The petition to set aside the ex-parte order was filed after expiry of four years without assigning any valid

reason for the long delay and dismissed the petition.

Mr. Sekar, learned counsel appearing for the petitioners submitted that the orders passed by the court below is erroneous and vitiated by

material irregularities; that the scope of Order 9 Rule 7 CPC was not considered by the trial court which has resulted in miscarriage of justice; that

the order passed by the trial court is a non-speaking order; that the written statement could not be filed by the petitioners in time since the papers

got mixed up with the papers sent along with WP No. 4484 of 1995 and the order in the writ petition was passed only on 22-07-2001 and

prayed for setting aside the order of the court below.

Now, we look into Order 9 Rule 7 CPC which runs as follows:-

Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance:

Where the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing, appears and assign good cause for

his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had

appeared on the day fixed for his appearance.

Order 9 Rule 7 CPC empowers the Court to allow the defendant to contest the suit on good cause for his previous non-appearance been

shown when, at or before exparte hearing, the defendant appears. Exparte order may be set aside and the defendants can be allowed to contest

the suit if good cause is shown. When we look into the provisions of Order 9 Rule 9 and 13 CPC, the Law makers have used the expression

sufficient cause"" but in Order 9 Rule 7 CPC, they have used the expression ''good cause''. There is no material difference between the facts to be

established for satisfying the two tests of good cause and sufficient cause. There cannot be a good cause which is not sufficient as affording an

explanation for non-appearance but if there is any difference between the two, it can only be that the requirement of good cause is complied with

on a lesser degree of proof than that of sufficient cause assuming the applicability of the principle of res judicata to the decision in the two

proceedings under Order 9 Rule 7 and under Order 9 Rule 13 CPC.

In this case, the reason assigned by the petitioners before the Court below was that the written statement was made ready but the same was

sent inadvertently along with the papers pertaining to WP No. 4484 of 1995 to the counsel at Madras. Nothing whispered in the affidavit filed in

support of the petition to set aside the exparte order as to when the written statement was forwarded to the counsel at Madras and when it was

received back. It is also stated that the W.P. No. 4484 of 1995 was disposed on 22-07-2001, however the set aside petition was filed only on

18-02-2002 i.e., after lapse of four years from the date of ex-parte order. Though application under Order 9 Rule 7 CPC is to be considered

liberally, the petitioners did not assign good cause. At any event, the delay of four years in filing the petition to set aside the exparte order is not

explained. Hence, I feel it is not a fit case to be interfered with by this Court.

In the result, the revision fails, liable to be dismissed and accordingly dismissed. No costs. Connected CMP is closed.