M. Ravinder Kumar vs Coronet Constructions

M. Sathyanarayanan, J.

The plaintiff/applicant in Application No. 4469 of 2014 in C.S.No. 902 of 2002 is the appellant. The respondent/defendant filed the above said application under Order XIV Rule 8 of O.S. Rules read with Order VI Rule 11 read with Order IX Rule 7 of Civil Procedure Code, 1908, to set aside the ex-parte order dated 7.3.2013, made in C.S.No. 902 of 2002. The said application, after contest, came to be allowed on 31.10.2014, by directing the defendant/respondent herein to pay a sum of Rs. 5,000/- to the High Court Legal Services Committee and aggrieved by the said fair and decretal orders, the plaintiff/appellant has filed this appeal.

The facts leading to the filing of this appeal, have been narrated in detail in the impugned order, which is the subject matter of challenge in this appeal, and therefore, it is unnecessary to restate the facts once again except to state the relevant facts for the purpose of disposal of this appeal.

The appellant/plaintiff has filed C.S.No. 902 of 2002 praying for a judgment and decree for recovery of Rs. 1,32,26,808/- with interest at the rate of 3% per month being the contractual rate on the principal amount of Rs. 39,28,600/- and also for costs. A perusal of the averments made in the plaint, would disclose that the respondent/defendant had borrowed loans from the plaintiff and executed promissory notes in favour of the third parties. The cause of action alleged in the plaint, would read that the above said amounts were borrowed from the respective parties through the plaintiff and suit pronotes were also executed by the respondent/defendant in their favour and the parties made over the pronotes executed in favour of the plaintiff, for the purpose of collection and due to limitation purpose, the suit demand notice could not be issued to the respondent/defendant.

The respondent/defendant in the affidavit filed in support of Application No. 4469/2014, would aver among other things, that he did not receive summons and the plaintiff resorted to paper publication, which was effected on 21.5.2006, and thereby, the service was effected by substituted service and he entered appearance through his Counsel and however, did not file the written statement and he was set ex-parte on 7.3.2013, for non-filing of the written statement. It is further averred that the respondent/defendant''s Counsel has sent a communication to him; but, however, it did not reach him and when he happened to be in the City Civil Court on 20.11.2013, in connection with another proceeding, he happened to meet his Advocate, who informed him about the ex-parte order passed on 7.3.2013, and thereafter, he immediately took steps and filed the application on 28.11.2013.

The respondent/plaintiff in the said application viz. the appellant herein, has filed a detailed counter affidavit dealing with the merits of the case and in paragraph No. 7, would aver that the vakalath for the defendant was presented to the Sub-Assistant Registrar on 20.1.2004, but was filed only on 24.1.2005, and the service of suit summons was completed on 11.8.2006, and after much delay, the suit was posted before the learned Master on 30.10.2012, under the caption "Undefended Causes" and due to non-appearance of the defendant, the matter was posted before the Court under the caption "Undefended Board" on 7.3.2013, and on that day, the defendant was set ex-parte. It is further averred that thereafter, the matter was listed before the learned Master on 8.4.2013, for recording the chief examination of the plaintiff and however, to the shock and dismay of the plaintiff, it was found that the original document Nos. 1, 3, 4 and 7 were missing and after obtaining orders from the Court, the said documents were reconstructed with the photocopies of the originals and in this regard, a criminal case was also registered. It is further averred that the examination of the plaintiff for passing ex-parte decree commenced and while the matter was in the midway stage, the present application came to be filed.

According to the appellant/plaintiff, there is no plausible explanation offered by the defendant and therefore, the application filed for setting aside the ex-parte order, deserves dismissal.

Before the learned Single Judge, elaborate arguments were advanced on behalf of the appellant/plaintiff and primary reliance was placed upon the Full Bench judgment of the Hon''ble Supreme Court of India reported in Arjun Singh Vs. Mohindra Kumar and Others, .

The learned Single Judge, on an elaborate consideration of the factual and legal position, found that the ex-parte order passed against the defendant, is to be set aside subject to putting him on terms and ordered the application.

The learned Counsel appearing for the appellant/plaintiff, has once again drawn the attention of this Court to paragraph Nos. 18 and 20 of the above cited judgment and would submit that though the judgment speaks about two stages viz. where the hearing is adjourned or where the hearing is completed, it has not dealt with the issue as to when the hearing is completed. Therefore, according to the learned Counsel appearing for the appellant, once the evidence of the plaintiff for the purpose of passing an ex-parte decree commenced, the hearing is completed and therefore, the remedy available to the defendant, if any, is to invoke the provisions of Order IX Rule 13 of C.P.C.

On the merits of the application, it is submitted by the learned Counsel appearing for the appellant, that the affidavit filed in support of the application to set side the ex-parte order, is bereft of any material particulars and the defendant failed to offer any tenable or plausible explanation as to his non-appearance and therefore, the learned Single Judge ought not to have set aside the ex-parte order.

Per contra, Mr.R.Thiagarajan, learned Counsel appearing for the respondent/defendant, would contend that the learned Single Judge has elaborately dealt with the points urged by the learned Counsel appearing for the appellant/plaintiff, and on correct application of law, has exercised the discretion in a fair and proper manner and therefore, in exercise of appellate jurisdiction, this Court may not interfere with the same and prayed for dismissal of the appeal.

Alternatively, the learned Counsel appearing for the respondent/defendant, on instructions, would submit that the respondent/defendant is also willing to pay more cost.

This Court, on a careful scrutiny of the materials available and on consideration of the rival submissions, is of the view that this appeal is liable to be dismissed for the following reasons.

Admittedly, the respondent/defendant has entered appearance through his Counsel and did not file the written statement and therefore, the suit was posted before the learned Master on 30.10.2012, under the caption "Undefended Causes" and on account of his non-appearance, it was directed to be listed before this Court under the caption "Undefended Board" on 7.3.2013. On that day, neither the defendant appeared, nor written statement was filed and therefore, he was set ex-parte and this Court directed the learned Master to record evidence. When the matter had gone before the learned Master, the original document Nos. 1, 3, 4 and 7 were found to be missing and after obtaining orders from this Court, those documents were reconstructed with the photocopies of the originals and thereafter, the evidence of the plaintiff had commenced for the purpose of passing the ex-parte decree. Admittedly, the plaintiff is still in the box and his evidence is yet to be completed and in the interregnum, the defendant has filed Application No. 4469/2014 for setting aside the ex-parte order dated 7.3.2013. Learned Counsel appearing for the appellant, has placed heavy reliance upon the judgment of the Hon''ble Supreme Court of India reported in Arjun Singh Vs. Mohindra Kumar and Others, , and the learned Single Judge has dealt with the said submission in paragraph No. 10 of the impugned order.

A perusal of paragraph Nos. 18 and 20 of the above cited judgment would disclose that once the hearing starts (the examination of the plaintiff for the purpose of passing the ex-parte decree commences), there are two stages in the trial of the suit:- (1) where the hearing is adjourned and (2) where the hearing is completed.

The Hon''ble Supreme Court of India in paragraph No. 20, has also observed "Where, the hearing is completed, the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX Rule 1 permits judgment to be delivered after interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX Rule 7 is passed, the next stage is only the passing of a decree, which on the terms of Order IX Rule 6 the Court is competent to pass." Admittedly, in the instant case, the hearing of the case is still in progress as the plaintiff is yet to complete the evidence and as pointed out in the earlier paragraph, the defendant had filed the application at that stage. Since the hearing is yet to be completed, the submission of the learned Counsel appearing for the appellant/plaintiff, that the remedy open to the respondent/defendant is to file an application under Order IX Rule 13 and not under Order IX Rule 7 of C.P.C., in the considered opinion of the Court, is unsustainable.

Insofar as the merits of the reasons stated by the respondent/defendant in the affidavit filed in support of Application No. 4469/2014 is concerned, in paragraph No. 7 of the affidavit, he has assigned reasons and the said aspect was also considered by the learned Single Judge in extenso and the learned Single Judge has exercised the discretion in a fair and proper manner in setting aside the ex-parte order by imposing cost.

In the considered opinion of the Court, the learned Single Judge has also dealt with the application on the merits of the case and by exercising the discretion in a fair and proper manner, has rightly arrived at a decision to set aside the ex-parte order and therefore, the same cannot be interfered with. Insofar as the enhancement of cost is concerned, as pointed out in the earlier paragraph, the learned Counsel appearing for the respondent/defendant, on instructions, would submit that the defendant is ready and willing to make further deposit towards cost.

This Court, on an independent application of mind to the entire materials, is of the considered opinion that there is no error apparent or infirmity in the reasons assigned by the learned Single Judge for setting aside the ex-parte order against the respondent/defendant. However, considering the fact that the suit is of the year 2002, which has been filed for recovery of money, and the lapse of time, this Court is of the view that the interest of justice would be met by directing the respondent/defendant to pay a further cost of Rs. 20,000/- to the learned Counsel appearing for the appellant/plaintiff. Though the learned Counsel for the appellant, at this juncture, urged that the respondent/defendant may be directed to deposit the suit claim, this Court is not inclined to do so. The further cost of Rs. 20,000/- (Rupees twenty thousand only) shall be payable by the respondent/defendant to the learned Counsel for the appellant on or before 20.11.2014.

In the result, the original side appeal stands dismissed subject to the above said direction. No costs. Consequently, connected MP is also dismissed.

Call on 20.11.2014 at 2.05 P.M. in the Chamber of MSNJ for reporting compliance.