S.S. Iyyappan vs J.P. Balasubramanian

V. Periya Karuppiah, J.—This revision has been preferred by the petitioner/plaintiff against the order passed by the lower Court condoning

the delay of 264 days in filing the restoration petition in I.A. No. 1032 of 2003. The lower Court has, after going through the facts and

circumstances of the case arising out of the affidavit and counter file on either side, condoned the delay of 264 days on payment of cost of Rs.

750/-.

The brief facts of the case are as follows:

The plaintiff/revision petitioner had filed the suit O.S. No. 580 of 2001 before the lower Court against the defendants for permanent injunction. The

second defendant/respondent herein was set expate in the said suit. To set aside the exparte order, the second defendant/revision petitioner herein

had filed an application I.A. No. 1989 of 2002 along with the written statement. But without disposing I.A. No. 1989 of 2002, the lower Court

had passed an exparte decree in the suit. So, the second defendant/respondent herein had filed an application I.A. No. 1032 of 2003 to set aside

the exparte decree. When I.A. No. 1032 of 2003 was posted for enquiry on 27.06.2005, the learned Counsel for the second

defendant/respondent herein could not reach the Court in time since he had gone to the District Court. In the result, I.A. No. 1037 of 2003 was

dismissed by the lower Court for default. The second defendant''s counsel sent a letter to him regarding the dismissal of I.A. No. 1037 of 2003,

but the same was not received by the second defendant. Hence, there was a delay of 264 days in filing an application to restore I.A. No. 1037 of

2003, which was filed to set aside the exparte decree. The second defendant/respondent herein filed I.A. No. 1926 of 2006 to condone the delay

of 264 days in filing the petition to restore I.A. No. 1032 of 2003. The lower Court, after hearing both sides and after perusing the records, has

allowed the said application on payment of cost of Rs. 750/- to the other side. Aggrieved by the said order, the present revision petition has been

filed by the plaintiff.

Heard Mr. N. Subramanian for Mr. C.R. Mohan learned Counsel for the petitioner and Ms. C. Uma the learned Counsel for the respondent.

The learned Counsel of the petitioner would submit in his argument that the lower Court, without verifying whether the written statement has

been filed by the respondent herein/2nd defendant along with the application in I.A. No. 1989 of 2002, had accepted the contentions of the

respondent/2nd defendant, and had grossly erred in finding that the respondent has got fair chances of success in the petition to set aside the

exparte decree. He would further submit that the petition filed to condone the delay of 294 days in I.A. No. 1926 of 2006 was filed after a long

delay of four months, apart from 294 days delay, and no explanation has been offered for the said delay, and the said petition ought to have been

dismissed by the lower Court. He would also submit that the respondent did not explain the delay properly and the lower Court had not

considered the valuable right accrued to the plaintiff/revision petitioner. He would further submit that the lower Court had not considered the

judgment of the Honourable Apex Court cited before the Court. He would further submit that the delay of 294 days is not correct and four months

time have not been added to the delay and the lower Court but it had wrongly exercised its discretion to condone the delay on payment of Rs.

750/-, which is not sustainable. He would also cite a judgment of this Court reported in 2007(4) LW 639 in between R. Jacob v. C. Prabakar for

the principle that unexplained long delay of nearly 5 1/2 years cannot be condoned. He would, therefore, request the Court that the delay caused in

this matter is also similarly liable to be rejected. He would also request the Court to interfere with the orders passed by the lower Court and to

dismiss the petition filed therein and thereby to allow the revision petition.

The learned Counsel for the respondent/second defendant would submit in her argument that the respondent/2nd defendant had explained the

delay of 294 days in filing the petition to set aside the exparte decree and the lower Court was right in accepting that the petitioner/respondent

herein/2nd defendant had explained the delay properly. She would further submit that the respondent/D2 had filed a petition to set aside the

exparte order along with the written statement in I.A. No. 1989 of 2002 and the same was not considered by the lower Court, but the exparte

decree was passed against the respondent/D2 and the respondent/D2 could not go over to his counsel as he did not expect any exparte decree

being passed when the written statement was filed along with an application to set aside the exparte order and therefore, the long delay of 294

days has crept in and there was no further four months delay caused, since on the date of filling of the exparte decree set aside application a delay

of 294 days alone had been caused. She would also submit that the date of filing of the application to condone the delay should not be calculated

for the delay caused in filing the application to set aside exparte decree. She would further submit that the omission to take note of the application

filed by the respondent in I.A. No. 1989 of 2002 to set aside the exparte order by the lower Court had caused the passing of the exparte decree

and no person can be injured by the act of the Court is the solemn principle and therefore, the delay caused in filing the application to set aside the

exparte decree was allowed by the lower Court and the Judgment of this Court as cited by the revision petitioner cannot be applied to the facts

and circumstances of this case and there is no point to interfere with the order passed by the lower Court and therefore, the revision petition may

be dismissed.

I have given anxious consideration to the arguments advanced on either side. It was contended by the learned Counsel for the respondent

herein/D2 that he had filed an application in I.A. No. 1989 of 2002 to set aside the exparte order along with the written statement and the said

application was not ordered by the lower Court and merely because no order has been passed by the lower Court, the respondent herein/D2 was

wrongly set exparte and for that purpose only, he had to file an application to set aside the exparte decree in I.A. No. 1032 of 2006 and

consequently the application in I.A. No. 1926 of 2006 to condone the delay was caused. The said allegation that the application to set aside the

exparte order in I.A. No. 1989 of 2002 was filed along with the written statement was denied by the revision petitioner/plaintiff in his counter

before the lower Court. However, the fate of I.A. No. 1989 of 2002 was not discussed by the lower Court.

Therefore, it has become necessary for this Court to call for report from the lower Court even after hearing the arguments of both sides.

Accordingly, the report has been received. It could be seen from the report that after the filing of the said application in I.A. No. 1989 of 2002 by

the respondent herein/D2, the suit was dismissed for default for non-appearance of the plaintiff/revision petitioner and the application in I.A. No.

1989 of 2002 filed by the respondent along with written statement was also consequently dismissed. Thereafter, the plaintiff/revision petitioner had

filed an application in I.A. No. 240 of 2003 for restoration of the suit and the lower Court did not order notice to the other side, namely the

respondent/D2 and other co-defendants, but it had posted for appearance of the plaintiff/revision petitioner and on the appearance of the

plaintiff/revision petitioner on 6.2.2003, the restoration petition in I.A. No. 240 of 2003 was allowed. At that time, the application filed by the

respondent herein/D2 for setting aside the exparte order passed against him in I.A. No. 1989 of 2002 was not restored, in consequent to the

restoration ordered in I.A. No. 240 of 2003. Thereafter, the exparte evidence was recorded and exparte decree was passed behind the back of

the respondent herein/D2 and other co-defendants.

In the judgment cited by the learned Counsel for the revision petitioner reported in 2007 (4) LW 639 in between R. Jacob v. C. Prabakar, we

could see the following passage:

The plaintiff and the settled state of things cannot be disturbed on the ground that the defendant has come out with an application with vague

reasons that he had family problems. There is no proper exercise of discretion by the lower Court in condoning the delay and the impunged order

cannot be sustained.

In the above said judgment this Court did not accept the reasons submitted by the petitioner therein as they are vague reasons. So far as the case

on hand is concerned, the reasons submitted by the respondent herein/D2 are that he was not aware of the fact that an exparte decree was passed

against him since he had filed an application to set aside the exparte order in I.A. No. 1989 of 2002 along with the written statement. We have

seen that the lower Court had committed mistake in not noting the application filed by the respondent herein/D2 to set aside the exparte order at

the time of dismissing the suit. The lower Court should have allowed the said application in I.A. No. 1989 of 2002 at the default of the plaintiff not

filing any counter to the said application and thereafter, the suit should have been dismissed for default. That was not done by the lower Court.

However, the lower Court could have revived the application in I.A. No. 1989 of 2002, which was consequently dismissed on the dismissal of the

suit for default on 21.11.2002, when it allowed the restoration petition in I.A. No. 240 of 2003 on 6.2.2003, which was also not done by the

lower Court. Therefore, the respondent herein/D2 was affected by the orders of the lower Court as stated supra. It is settled principle that no

person shall be injured by the Act of the Court. According to the judgment of our Honourable Apex Court in S. Satnam Singh and Others Vs.

Surender Kaur and Another, , the said rule has to be kept in mind always. The relevant passage would runs as follows:

Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an

act of Court.

Actually the injured person would be the respondent herein/D2. The valuable right as claimed by the petitioner was created by the wrong orders

passed by the lower Court on 21.11.2002 and 6.2.2003 in dismissing I.A. No. 1989 of 2002 on the dismissal of the suit and in not reviving the

said application on the restoration of the suit, respectively. Therefore, the judgment of this Court as relied upon by the revision petitioner in

2007(4) LW 639 in between R. Jacob v. C. Prabakar has no application to the present case. It is also found in the report of the lower Court that

the cost as directed by the lower Court was deposited within time before the lower Court and the application was allowed and thereafter, the

application in I.A. No. 1032 of 2006 to set aside the exparte decree was also allowed and the exparte decree has been set aside, D2 had also

filed another copy of the written statement and it is posted for framing of issues before the lower Court. In these circumstances, when the reason

stated by the respondent herein/D2 as petitioner before the lower Court in I.A. No. 1926 of 2006 was accepted by the lower Court, I cannot find

any fault with the order passed by the lower Court in allowing the application after condoning the delay of 294 days. Therefore, I do not find any

reason to interfere with the order passed by the lower Court and accordingly, the revision deserves to be rejected.

In fine, the revision petition is not allowable and the order passed by the lower Court is not liable to be set aside. However, the lower Court is

directed to proceed with the trial of the case after framing issues and to proceed with the trial of the case and to dispose of the case within a period

of two months from the date of receipt of a copy of this order. With the above observation, this Revision is disposed of. Connected Miscellaneous

Petition is closed. No costs.

V. Periya Karuppiaha, J.—For deciding the question it has become necessary to call for the report from the lower Court as to the

particulars regarding the pendency of I.A. No. 1989 of 2002 in O.S. No. 580 of 2001 on the file of the District Munsif, Alandur, and the

subsequent orders passed thereon and the present stage of the case pending on the file of the lower Court.

2.Therefore, the Registry is directed to call for the report from the lower Court, through special messenger, as to the particulars regarding the

pendency of I.A. No. 1989 of 2002 in O.S. No. 580 of 2001 on the file of the District Munsif, Alandur, and the subsequent orders passed

thereon and the present stage of the case, and submit the same before the learned Judge, on 05.08.2009.

Post the case on 06.08.2009.