Srinivasalu and Another vs Krishnammal and Others

M.N. Chandurkar, C.J.—These two revision petitions are illustrations as to how far parties can go in making false affidavits for the purpose

of having an ex parte decree, set aside. In a suit for money filed by the plaintiff, who is the respondent In C.R.P. No. 1099 of 1982, and is the

respondent in C.R.P. No. 1484 of 1986, an ex parte decree was passed, on 12th July, 1978. The defendants in the suit were a partnership firm

consisting of defendants 2 and 3, defendant No. 1 being the partnership firm.

On 25th April, 1961, an application for setting aside the ex parte decree was made accompanied by another application for condonation of

delay u/s 5 of the Limitation Act. The bald averments made in the application for condonation of delay with which alone we are concerned, were

that the suit was transferred from the file of the Second Assistant City Civil Judge, Madras, to file of the Sixth City Civil Judge, Madras, and that

this fact was completely overlooked by the third defendant. It was also stated that there was a dispute between the second and the third

defendants for the past four years prior to the date of the affidavit in the court at Coimbatore and consequently the suit in question could not be

attended to.

The counter filed on behalf of the plaintiff shows the falsity of the allegation that the defendants were not aware of the transfer of the suit or the

date on which it was taken up for trial. The plaintiff has stated that at the request of the defendants the suit was adjourned by the Court of the Sixth

Assistant Judge, City Civil Court, Madras, on 4.11.1977, 10.12.1977, 23.1.1978 and 28.3.1978. Prior to these dates, the suit was already

posted for trial in the Court of the Sixth Assistant Judge, City Civil Court, Madras, on 9.8.1977, where the defendants had appeared and it was

adjourned at their request to 29.9.1977 when also they were not ready. The suit was adjourned on 12.7.1978 and on 23.3.1978, at the instance

of the defendants. It is, therefore a wholly false statement that the defendants did not know of the date of hearing in the Court of the Sixth Assistant

Judge, City Civil Court, Madras.

The learned Judge dealt with the application for condonation of delay. Having held on all counts in favour of the plaintiff, that the affidavit of the

third defendant was not at all helpful and that the averments were invented ''to add colour of truth'' to explain away the delay the learned Judge

surprisingly went on to hold that the delay was neither wanton nor wilful and deserved to be condoned. The learned Judge, however, took the view

that the application for condonation of delay could be allowed only on the third defendant depositing one third of the decretal amount as a

condition precedent for allowing the application. He, therefore, directed the deposit of one third of the decretal amount to the credit of the suit and

fixed 9.2.1982 as the date of hearing of the application for setting aside the ex parte decree. He also made a peremptory order that, if the amount

was not deposited on or before 8.2.1982 both the applications of the defendants shall stand dismissed.

As already pointed out C.R.P. No. 1099 of 1982 is filed by the defendants challenging the order levying the condition to deposit one third of the

decretal amount and C.R.P. No. 1384 of 1986 is filed by the original plaintiff challenging the order of the learned Judge condoning the delay.

It is obvious that the averments made in the affidavit filed by defendant No. 3 are patently false, having regard to the dates disclosed in the

counter affidavit filed by the plaintiff. The statement made in the affidavit of the plaintiff that the suit was adjourned on several dates, at the request

of the defendants has not been disputed by any further statement on affidavit. This circumstance was enough to reject the application for

condonation of delay. Having appeared in the suit on several dates the burden was on the defendants to explain why they did not appear on the

date on which the suit was fixed for hearing. No attempt has been made by the defendants to explain why they did not appear on 12.7.1978 when

ex parte decree was passed. It was the duty of the defendants to find out what happened on 12.7.1978. The learned Judge should therefore have

rejected the averments of the defendant No. 3 that he learnt of the ex parte decree only at the time when the decree was sought to be executed

and the application for condonation of delay should have been straightway dismissed. It is difficult to imagine that the defendants against whom

there is a suit filed for about Rs. 33,000 will not make any effort to find out what has happened to the suit against them especially when the suit has

been adjourned from time to time at their request.

The present order allowing the petition for condonation of delay in filing the petition for setting aside the ex parte decree appears to be obviously

the result of a very liberal attitude and casual manner in which ex parte decrees are being set aside. I had two occasions earlier to refer to the

casual manner in which ex parte decrees are passed and they are subsequently set aside. The present case is a clear illustration which justifies the

above observations. It is not possible to absolve the Courts from the blame for the tendency which is growing in the litigants to take ex parte

decrees very casually and at leisure make applications for setting them aside on bald and general averments which are rarely scrutinized, with care

which such applications and affidavits deserve, having regard to the stringent provisions of Section 5 of the Limitation Act. In my view, the learned

Judge was clearly in error in condoning the delay in filing the petition for setting aside the ex parte decree. The order of the learned Judge is,

therefore, set aside.

The revision petition filed by the defendants (C.R.P. No. 1099 of 1982) is dismissed and the revision petition (C.R.P. No. 1384 of 1968) filed

by the plaintiff is allowed. There will be one set of costs payable to the plaintiff by the defendants. Counsel''s fee Rs. 500.