Mr. L.P. Chandran vs S.M.P. Textiles Pvt. Ltd.

K. Mohan Ram, J.—Second defendant in OS. No. 439 of 2001 on the file of the Principal Subordinate Court, Erode is the petitioner in the

above civil revision petition.

The said suit has been filed by the respondent herein for recovery of money. On 12.4.2004, the defendants were set ex parte and they filed IA.

Nos. 391 and 392 of 2004 seeking to set aside the ex parte decree. On 12.8.2004, the said applications were allowed on the condition of deposit

of 25% of the suit claim. However, the first defendant filed CRP. NO. 2036 of 2004 before this Court and it was allowed on 28.9.2007 and the

condition of depositing 25% of the suit claim came to be set aside. But, the second defendant - the petitioner herein did not challenge the order

dated 12.8.2004 and hence, the same has become final. Thereafter, when the said suit is taken up for hearing, the petitioner herein filed IA. No.

658 of 2009 to set aside the ex parte decree. However, IA. No. 658 of 2009 came to be dismissed and being aggrieved by that, the petitioner is

before this Court.

Heard both.

Learned Counsel for the petitioner herein submitted that there cannot be a prayer to set aside the ex parte decree and when, admittedly, the

other defendant is contesting the suit, the petitioner should have been allowed to participate in the remaining proceedings in the suit from that stage.

In support of the said contention, learned Counsel for the petitioner placed reliance on the decision in the case of N.A. Shanmugasundaram and

Ors. v. Minor Vignesh Kumar and Ors. reported in 2009 (2) CLT 174. In the said decision, a learned Single Judge of this Court has observed as

follows:

In the above judgment, the Honourable Supreme Court held that if the defendant does not show good cause for his non appearance on the

previous day and his application filed under Order IX Rule 7 is dismissed, he is not penalised in the sense of being forbidden to take part in the

further proceedings of the suit (or) whatever might still remain of the trial. But, he could not claim to be relegated to the position that he occupied at

the commencement of the trial.

The said observation has been made on the basis of the judgment of the Apex Court in the case of Sangram Singh Vs. Election Tribunal, Kotah,

Bhurey Lal Baya, wherein it has been laid down as follows:

It is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail

himself of it. Therefore, if a party does appear on ''the day to which the hearing of the suit is adjourned'', he cannot be stopped from participating in

the proceedings simply because he did not appear on the first or some other hearing.

The very same principle has been laid down in the case of Arjun Singh Vs. Mohindra Kumar and Others, .

Countering the said submissions, learned Counsel for the respondent submitted that the prayer in IA. No. 658 of 2009 is only to set aside the

decree dated 12.4.2004 and the respondent is not seeking permission of the Court to take part in the proceedings from that stage. Therefore, the

Court below had no occasion to consider the request of the petitioner to permit him to take part in the proceedings from that stage. Though,

admittedly, IA. No. 392 of 2004 filed by the petitioner to set aside the ex parte decree came to be allowed on the condition of the petitioner

depositing 25% of the suit claim, the petitioner did not deposit the same and hence, the order dated 12.8.2004 had become final and therefore, the

petitioner cannot once again seek to set aside the ex parte decree. The reasoning of the Court below for dismissing the present application cannot

be said to be erroneous.

I have considered the said submissions of the learned Counsel on either side and perused the materials available on record.

Though the learned Counsel for the petitioner sought to argue based on the aforesaid decisions that since the other defendant is contesting the

suit, the petitioner also should be permitted to participate in the proceedings from that stage, that prayer has not been incorporated in the present

application. In the absence of such prayer, the order of the Court below cannot be faulted with. What is sought for in the present application is only

to set aside the ex parte decree and the reasons assigned by the Court below for dismissing the present application having regard to the earlier

order passed IA. No. 392 of 2004 is perfectly in order. I do not find any error in the order passed by the Court below.

For the aforesaid reasons, the civil revision petition is dismissed. No costs. Consequently, the above MP is also dismissed.

It is made clear that if the petitioner files, within two weeks from the date of receipt of a copy of this order, an appropriate application seeking

permission of the Court below to permit him to participate in the proceedings from that stage, that shall be favorably considered by the Court

below. Since already there is a direction by this Court to dispose of the said suit within a specified time, the Court below is directed to dispose of

the said suit within three months from the date of receipt of a copy of this order.