Mary Theresa vs Vasantha

G. Rajasuria, J.—Inveighing the order dated 15.12.2009, passed in I.A. No. 391 of 2009 in I.A. No. 1676 of 2005 in O.S. No. 352 of

1997 by the Additional District Munsif Court, Vellore, this civil revision petition is focussed.

Heard both sides.

A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:

The lower Court allowed I.A. No. 1676 of 2005 filed under Order 9 Rule 13 and Section 151 CPC to set aside the ex parte decree passed in

O.S. No. 352 of 1997, which was a suit for declaration, recovery of possession and also injunction, by awarding a cost of Rs. 200/- (Rupees two

hundred only) payable on or before 10.10.2007. Whereas, there was a delay of ten days in paying the cost. Hence on 20.10.2007, I.A. No. 391

of 2009 was filed to get the time extended to pay the cost, but it was rejected after hearing both sides.

Being aggrieved by and dissatisfied with the said order, this revision has been filed on various grounds, the gist and kernel of them would be to

the effect that the meagre delay in paying the cost could have been condoned by the lower Court, but taking a strict view of the matter, simply the

Court below dismissed it.

The learned Counsel for the petitioner placing reliance on the grounds of revision would submit his argument that the subject matter of the suit

property being immovable, one opportunity could have been given to the revision petitioner/defendant to contest the matter, as otherwise, his right

over the valuable property would get frustrated.

Whereas, the learned Counsel for the respondent/plaintiff would submit that even though the revision petitioner/defendant claims that there was

only a delay of ten days in paying the cost and for that an application was filed to condone the delay, the said application itself was got numbered in

the year 2009 and that was purely for the purpose of dragging on the proceedings and to thwart the legal right of the plaintiff to take possession

based on the ex parte decree.

The point for consideration is as to whether the delay of ten days in paying the cost could be condoned?

A perusal of the order of the lower Court would reveal that the lower court proceeded on a wrong footing as though appeal ought to have been

filed as against the dismissal of the application u/s 5 of the Limitation Act, due to non payment of cost. He also remarked that no petition for

extension of time was filed. But a perusal of the records would reveal that the very I.A. No. 391 of 2009 itself is for virtually getting the time

extended to pay the cost. Further more, the Court has got the power to extend the time for payment of cost even after the expiry of the time fixed

for payment. Taking in to consideration the over all circumstances and also the fact that the property involved in the suit is an immovable one, I

would like to grant one more opportunity to the petitioner/defendant to participate in the proceedings. The plaintiff also is litigating before the Court

ever since 1997 and that cannot be lose sight of. Hence, I would like to award cost so as to compensate the discomfiture caused to the plaintiff.

Accordingly, the order of the lower Court is set aside and the revision petitioner/defendant is directed to pay in total a sum of Rs. 2,000/- (Rupees

two thousand only) which includes the sum of Rs. 200/- awarded as cost by the lower Court, on or before 09.07.2010 to the respondent/plaintiff,

whereupon, the ex parte decree shall stand set aside and the suit shall stand restored to file. If there is non compliance, this order will not enure to

the benefit of the revision petitioner/defendant. On such restoration, the trial Court shall see that the suit is disposed of within a period of two

months. Both the parties shall co-operate with the Court for speedy disposal by participating in the proceedings which shall be conducted by the

Court on day to day basis.

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