Pradeep Kumar and Another vs Balasundaram

S. Tamilvanan, J.—Heard both the learned Counsel appearing for the Petitioners as well as the Respondent.

Challenging the judgment and decree, dated 8.4.2009, made in C.M.A. No. 7 of 2008 on the file of the Principal District Judge, Villupuram,

confirming the fair and decretal order, dated 13.3.2007 made in I.A. No. 40 of 2007 in O.S. No. 64 of 2004 on the file of the Sub-Court,

Kallakurichi, the Civil Revision Petition has been filed by the Petitioners/Defendants.

It is seen that the Suit was filed by the Respondent/Plaintiff, seeking a money decree, based on a promissory note for the value of Rs. 3 lakh.

The Suit was decreed ex parte on 21.8.2006 due to the non-appearance of the Petitioners/Defendants, subsequently, on the Application filed

under Order 9 Rule 13, Code of Civil Procedure, the ex parte decree was set aside and the matter was taken on file. Subsequently, after framing

of charges, P.W.1 was examined and the case was posted on various dates for cross-examining P.W.1, however, there was no cross-

examination, by the Petitioners/Defendants. As per the impugned order, it is seen that the matter was posted on 31.7.2006, 1.8.2006, 2.8.2006,

3.8.2006, 4.8.2006, 7.8.2006, 8.8.2006, 9.8.2006, 10.8.2006, 11.8.2006, 17.8.2006, 18.8.2006 and finally on 21.8.2006, subsequently, the

Suit was decreed ex parte as prayed for with costs. Aggrieved by which, the Petitioners herein filed a Second Petition under Order 9 Rule 13,

Code of CPC to set aside the ex parte decree. By the order, dated 13.3.2007, the aforesaid Interlocutory Application was dismissed by the Court

below. Aggrieved by which, this Revision has been preferred.

Learned Counsel appearing for the Petitioners submitted that the second Petitioner was taking treatment in a hospital and the first Petitioner,

being his close friend was accompanying the second Petitioner, hence, they could not defend the case when the ex parte decree was passed by the

Court below. According to the learned Counsel, the non-appearance of the Petitioners was neither wilful nor wanton. In support of his contention,

the learned Counsel relied on the decision, Ponnusamy Poosari and Anr. v. Nallan Poosari and Ors. 2009(3) LW 492, wherein this Court held

that the non-appearance of the Petitioners on earlier occasion having been condoned by the Court below cannot be a ground for rejecting the

petition for restoration and that the Courts below had erred in refusing to restore the Application, though the petition to condone the delay was

allowed. The aforesaid decision is not applicable to the facts and circumstances of this case.

In the present case, it is not in dispute that in the earlier occasion, due to the non-appearance of the Petitioners/Defendants, the Suit was

decreed on 21.8.2006 and, subsequently, on partition, the ex parte decree was set aside by the Court below, however, subsequently, after the

case was posted for trial and P.W.1, was examined and posted for cross-examination of P.W.1 on various dates, however the Petitioners were

not ready to cross-examine the witness.

Mr. P. Valliappan, learned Counsel appearing for the Respondent submitted that wantonly in order to avoid payment, the

Petitioners/Defendants adopted delay tactics and in support of his contention, the learned Counsel relied on the following decisions:

Ramesh and Ors. v. Ratnakar Bank Ltd. 1 (2001) BC 224:7 (2000) SLT 733:AIR2001 SC W 4759 ;

Northern Carriers Pvt. Ltd. Vs. United India Insurance Co. Ltd. and Another, .

In the decision, Ramesh and Ors. v. Ratnakar Bank Ltd. (supra), the Hon''ble Supreme Court has held that for the Application to set aside the

ex parte decree, the conduct of the party is paramount and the Hon''ble Supreme Court find it reasonable to direct the Petitioner, who filed petition

under Order 9 Rule 13, Code of CPC to deposit 60% of the outstanding loan amount as a condition precedent to allow the petition.

In the decision, Northern Carriers Pvt. Ltd., Jullundur v. United India Insurance Ltd. and Anr. (supra), the Punjab and Haryana High Court

directed the Petitioner therein to file Petition under Order 9 Rule 13, Code of CPC to set aside the exparte decree to deposit the entire amount as

a condition precedent.

While considering the Petition under Order 9 Rule 13, Code of CPC to set aside the ex parte decree, the Court has to consider the conduct of

the party who filed the Petition. In the instant case, admittedly there was an earlier ex parte decree, on Petition, that was set aside by the Court

below, subsequently, the case was posted for trial, P.W.1 was examined in chief, continuously there was no representation for the

Petitioners/Defendants to cross-examine P.W.1, that was recorded by the Court below. Before passing the exparte decree, sufficient opportunity

was given to the Petitioners. It is not in dispute that there are two Petitioners/Defendants. According to the Petitioners, the second Petitioner was ill

and admitted in the hospital, however, in order to prove the alleged illness of second Petitioner, no supporting document was produced by the

Petitioners before the Court below. Even if the second Petitioner was bed-ridden or taking treatment as in-patient, nothing prevented the first

Petitioner in appearing and giving instructions to his Counsel, so as to cross-examine the witness. When the second petition was filed under Order

9 Rule 13, Code of Civil Procedure, the conduct of the party has also to be taken into consideration.

On the aforesaid facts and circumstances, I am of the view that the defence raised by the learned Counsel appearing for the Petitioners that the

act of the Petitioners is neither wilful nor wanton cannot be accepted. In the light of the decisions rendered by the Hon''ble Apex Court and other

Courts, to meet the ends of justice, I find it just and reasonable to pass a conditional order, accordingly, as a condition precedent, the Petitioners

are directed to deposit a sum of Rs. 2,00,000/- (Rupees two lakh only) to the credit of the Suit in O.S. No. 64 of 2004 before the Court below

within eight weeks from the date of receipt of a copy of this order, apart from paying the costs of the Suit and the Respondent will be entitled to

withdraw the costs of the Suit to be deposited. If the conditional order is complied with, this Civil Revision Petition will be allowed and in case if

the conditional order is not complied with, this Civil Revision Petition shall stands dismissed without any further reference to this Court and the

Respondent will be at liberty to proceed with the E.P.

With the above direction, this Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.