Ponnusamy Poosari and another vs Nallan Poosari and others

N. Paul Vasanthakumar, J.—This civil revision petition is filed u/s 115of the Code of Civil Procedure, challenging the decree dated

29.3.2004 made in C.M.A. No. 13 of 2003 on the file of Sub Court, Pattukottai, confirming the fair and decreetal order passed in I.A. No. 45 of

2003 in O.S. No. 138 of 1996 dated 8.9.2003 on the file of the District Munsif-cum-Judicial Magistrate Court, Orathanadu. The

Petitioners/plaintiffs filed the above suit for declaration and injunction. The said suit was dismissed for default on 29.10.2001. I.A. No. 45 of 2003

was filed before the District Munsif-cum-Judicial Magistrate Court, Orathanadu, to restore the suit by contending that the suit was posted on

29.10.2001 and at that time the second petitioner contested for the post of Panchayat President and thereafter he was looking after his father, who

was taking treatment at Chennai and immediately on knowing the fact on 28.1.2002 about the dismissal of the suit on 29.10.2001, the restoration

application was filed.

The said application was resisted by the respondents by contending that on an earlier occasion the suit was dismissed for default and the suit

was restored as per the order in I.A. No. 27 of 1999 and thereafter an Advocate-Commissioner was appointed and the case was posted for final

hearing on 29.10.2001 and on the said date neither the petitioners nor their counsel appeared and therefore there is no bona fide in the said

application seeking restoration.

The Trial Court dismissed the said interlocutory application, against which CMA No. 13 of 2003 was filed, which was also dismissed taking

note of the dismissal of the suit on earlier occasion which was restored subsequently. The appellate Court further held that the suit was of the year

1996 and observed that the petition was filed only to drag on the proceeding.

The said orders rejecting the request for restoration is challenged in this civil revision petition on the ground that on 29.10.2001 the second

petitioner, who was conducting the case could not appear due to the ill-health of his father, who was aged 75 years at that time and during the

second and third week of October, 2001, he was busy with the Panchayat election work and therefore he could not contact his counsel to

ascertain the date of hearing and as such there was communication gap and therefore he was unable to attend the Court on 29.10.2001. It is also

stated in the ground that the second petitioner having been elected as Panchayat President, he took charge of the Thilagainathi Panchayat on

25.10.2001. It is further stated that originally the suit was posted for trial on 22.10.2001 and the said date being Duserah holiday, the trial Court

posted the case to 29.10.2001, which was not noticed by the counsel for the petitioner.

The Learned Counsel for the petitioners submitted that the non-appearance of the petitioners on earlier occasion having been condoned by

allowing the petition for restoration, the said reason cannot be cited as a reason to reject the petition for restoration and the Courts below relied on

the above fact and refused to restore the application even though the petitioners have stated genuine reasons.

The Learned Counsel for the respondents on the other hand submitted that the petitioners have not proved their lack of knowledge of the

posting of the case on 29.10.2001 and the trial Court as well as appellate Court are justified in dismissing the said application for restoration.

I have considered the rival submissions made by the Learned Counsels appearing for the revision petitioners as well as respondents.

The issue as to whether the petition to restore the suit, which was dismissed for nonappearance, can be rejected on the ground that on earlier

occasion also the suit was dismissed for default, which was restored, particularly when sufficient cause for non-appearance on the date of hearing

is made out, came up for consideration before the Honourable Supreme Court in the decision reported in G.P. Srivastava Vs. Shri R.K. Raizada

and Others, in which in paragraph 7, the Honourable Supreme Court held thus,

Under Order 9 Rule 13CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the

summons were not duly served upon the defendant or he was prevented by any ""sufficient cause"" from appearing when the suit was called on for

hearing. Unless ""sufficient cause"" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set

aside an ex parte decree. The words ""was prevented by any sufficient cause from appearing"" must be liberally construed to enable the court to do

complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of

Order 9 Rule 13has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide

discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The ""sufficient cause"" for non-

appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other

circumstances anterior in time. If ""sufficient cause"" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte

proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned

earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised

in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by

adequate costs and the lis decided on merits.

(Emphasis Supplied)

Exercising of discretion while considering the application filed under Order IX Rule 9CPC was considered by the Division Bench of this Court

in the decision reported in 2008 (1) TLNJ 485 (Civil) (M/s. Indira Iron and Steel Works and others v. Age Impex International Inc., Laxington

Avenue, New York and others). In paragraph 17, the Division Bench held as follows:

We are of the view that a meritorious matter should not be thrown out at the threshold and cause of justice being defeated. Equally the Court

of law are not supposed to adopt a pedantic approach and a pragmatic approach has to be made to deliver substantial justice overriding technical

considerations as far as the instant case on hand. It is to be noted that judiciary is respected since it is capable of removing injustice on technical

grounds and is expected to do so.

The decisions cited by the Learned Counsel for the respondents have no application to the facts of this case in view of the categorical

pronouncement of the Honourable Supreme Court in G.P. Srivastava Vs. Shri R.K. Raizada and Others, cited above.

Thus, I hold, the reason given by the Courts below for dismissing the petition for restoration is unsustainable. It is also an admitted fact that the

case was posted on 22.10.2001 and the Court below having found that the said date being a holiday, posted the matter to 29.10.2001 and

according to the petitioners, which date was failed to be noticed by the counsel for the petitioners. The non-appearance of the petitioners on

29.10.2001 is due to the above facts. Merely because the second petitioner has contested for the post of the President of Panchayat and got

elected, the Court cannot presume that the petitioners have ignored the Court proceedings and remained exparte. The delay in disposal of the suit

can be remedied by giving a direction to dispose of the suit within a given time. In such circumstances, I am of the view that the impugned orders in

C.M.A. No. 13 of 2003 dated 29.3.2004 on the file of the Sub Court, Pattukottai, and the order dated 8.9.2003 in I.A. No. 45 of 2003 in O.S.

No. 138 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Orathanadu, are liable to be set aside and accordingly set aside.

Having regard to the fact that the suit is of the year 1996, interest of justice would be met by giving direction to the learned District Munsif,

Pattukkottai, to dispose of the suit on merits and in accordance with law, within a period of six months from the date of receipt of copy of this

order.

The civil revision petition is allowed accordingly. No costs.