S. Ganapathy Konar vs E. Ganapathy Konar

Abdul Hadi, J.—These civil revision petitions have been filed by the plaintiff in O.S. No. 35 of 1988 on the file of the District Munsifs Court,

Valliyur (which was originally O.S. No. 12 of 1982 on the file of the District Munsif s Court, Tirunelveli).

C.R.P. No. 3163 of 1993 has been filed against the order dated 26.7.1993, allowing I.A. No. 680 of 1992 in the said suit. The application was

filed by the respondent/defendant for excusing the delay of 33months in filing the application to set aside Iheex pane decree dated 5.1.1989 in the

abovesaid suit.

C.R.P. No. 3164 of 1993 is against the order dated 26.7.1993,allowingI.A.No. 681 ofl992 filed by the defendant-respondent for setting aside

the abovesaid ex pane decree dated 5.1.1989.

Even at the outset, I may state that curiously the above I.A. No. 681 of 1992 has been numbered even before the abovesaid I.A. No. 680 of

1992 has been allowed. In other words, both the applications have been numbered together and posted for hearing together and an order has

been passed in both the applications on the same day, viz. 26.7.1993.

In I.A. No. 680 of 1992 after setting out what is contained in the affidavit and counter-affidavit, the court below has allowed the said

application, observing only as follows in paragraph 4 thereof:

So, on the sole ground that the respondent in the said application (petitioner herein) has not appeared before the court below, the application has

been straightaway allowed, despite the fact that the delay is as much as 33 months, that is roughly about 1000 days and despite the fact that the

allegations in the supporting affidavit have been stoutly denied in the counter affidavit. The learned Judge has not even found that he is satisfied with

the averments made in the supporting affidavit for excusing the abovesaid. In ordinate delay of about 1000 days. Admittedly, there was no oral

evidence by the petitioner in the said application. Yet, even without finding that it is satisfied with the reasons given in the supporting affidavit for

excusing the delay, the court below cannot straightaway excuse the abovesaid inordinate delay, solely on the ground that the respondent before it

did not appear on 26.7.1993 when the application was taken up. Putting it very mildly, it is very much regrettable that the court below has acted in

this way.

In I.A. No. 681 of 1992 also, the court below, after referring to the affidavit and counter-affidavit, has allowed the said application, observing

only the following:

Here again, only because the respondent before it (petitioner herein) was not present, the court below has straightaway allowed the said

application, after referring to the allowing of I.A. No. 680 of 1992. Even assuming that I.A. No. 680 of 1992 has been rightly allowed, the court

below cannot straightaway allow I.A. No. 681 of 1992 on the sole ground that the respondent before it (petitioner herein) remained ex pane, as

stated above,

Despite all the abovesaid features, the learned Counsel for the respondent points out that the petitioner should have only filed petitions to set

aside the abovesaid ex pane orders in I.A.Nos.68() of 1992 and 681 of 1992 and that the petitioner cannot file civil revision petitions in this Court

instead. In other words, according to him, these civil revision petitions are not maintainable, when there is a remedy available to set aside the

abovesaid ex pane orders in I.A.Nos.680 and 681 of 1992.

I have considered these submissions. The powers u/s 15 of the CPC are no doubt discretionary and hence, this Court would normally refuse to

interfere under the said section, if there is any other remedy open to the party. Vide : Sheo Prasad Singh v. Kasiuri Kuar (1988) 10 All. 119 and

Ittiachan v. Velappan ILR (1885) Mad. 484.

Nevertheless, it has also been held in several decisions, including of this Court, that in exceptional cases, the High Court can interfere even if

there is any other remedy open to the party aggrieved. In AIR 1948 362 (Nagpur) , it has been held that though the ordinary rule is that where the

aggrieved party has another remedy available, the High Court would not be willing to interfere, it is unquestionable that even if there be such

remedy the High Court may interfere in exceptional cases.

Similar rulings are therein B.N. Chowdappa Chetti Vs. President, Panchayat Board, , Bathai Bagyalakshmi Ammal Vs. Thoppai Bappu Aiyar

(died) and Others, and Ranganayaki Bai Ammal Vs. B. Shivarama Dubay and Another, . It has also been held in Ram Sundar v. Paras Rum AIR

1946 Oudli 88 and AIR 1944 295 (Nagpur) that even when other remedy is open, the High Court shall in-therefore, where non-interference

would result in multiplicity of proceedings, delay and in unnecessary expenses to the parties, (vide : Sri Krishnadass v. H. Chandook Chand ILR

(1909) Mad. 334.

I have no doubt that, in the light of what has been stated above, the present case is a fit one which would come under the above referred to

exceptional cases. Therefore, the abovesaid impugned orders of the court have necessarily to be set aside. Accordingly, they are set aside and the

civil revision petitions are allowed. However, in I he circumstances of the case, there will be no order as to costs. The court below is directed to

try the abovesaid I.A. No. 680 of 1992 afresh according to law, after hearing both the Parties and if necessary, after allowing the parties to let in

evidence. In case I.A. No. 680 of 1992 may be taken up for disposal afresh in accordance with law. If I.A. No. 680 of 1992 is dismissed, the

abovesaid I.A. No. 681 of 1992 will also have to be dismissed. The court below is directed to deal with the matter afresh thus as expeditiously as

possible within fourweeks from the date of receipt of a copy of this order. No costs.