Subramanian vs Kuppusamy (died) and 7 others

V. Dhanapalan, J.—Disgruntled with the judgment passed by the lower Appellate Court, namely, Subordinate Judge, Panruti, in C.M.A.

No. 9 of 2003, confirming the order passed by the Trial Court in dismissing the Application to set aside the ex parte decree, the petitioner has filed

this Civil Revision Petition. Originally, the respondent filed a suit for partition and separate possession. Since the petitioner remained absent, the

Trial Court passed the ex parte decree on 03.12.1996. Firstly, I.A. No. 269 of 1997 was filed by the petitioner to set aside the ex parte decree

dated 03.12.1996 and the same was allowed by consent on 06.04.1999 and the case was adjourned to 13.04.1999 for cross-examination of

P.W.1, which was not done by the petitioner till 14.06.1999, resulting in passing of the ex parte decree for the second time on 14.06.1999.

Thereafter, the second application in I.A. No. 822 of 1999 was filed to set aside the said ex parte decree dated 14.06.1999 and that too was

allowed on consent on 12.06.2000. Even thereafter, P.W.1 was not cross-examined by the petitioner/defendant. Therefore, for the third time, the

ex parte decree was passed on 05.09.2000. Thereafter, the third application in LA. No. 846 of 2000 was filed to set aside the ex parte decree

dated 05.09.2000 and the said Application was also allowed on condition to deposit a sum of Rs. 2,000/- by an order dated 11.06.2001. On the

deposit of Rs. 2,000/-, the ex parte decree was set aside and the matter was listed on 03.09.2001, pursuant to which the respondent/plaintiff was

examined afresh and the petitioner took adjournments for cross-examination till 27.09.2001 and thereafter failed to cross examine the respondent

by not attending the Court. Therefore, the ex parte decree was passed on the same day. The impugned Application was filed for the fourth time to

set aside the said ex parte decree dated 27.09.2001 only to drag on the proceedings with a view to delay the partition of the suit properties.

Thus, the petitioner allowed the matter to be decided ex parte for four times between 1996 and 2001. The first respondent, who filed the suit

for partition, is no more, as he died during the pendency of the Appeal before the Lower Appellate Court and his legal heirs were brought on

record. Though the petitioner claimed that he was suffering from jaundice on 27.09.2001, he had not filed any proof for the same.

Learned counsel for the petitioner would contend that the Courts have ample power to condone the absence when there is a sufficient cause and

though the petitioner has explained his absence was due to illness, the same has not been properly looked into by the Courts below and, therefore,

this Court has to look into the matter under revisional jurisdiction. In support of his contention, the learned counsel has relied upon the decision in

Kuppammal (died), Gopal, M. Pappathy and A. Saroja Sole Appellant died to bring on record of LRS of the deceased sole appellant vide order

dated 6.10.99 in C.M.P. 14363/98(J and KS) Vs. S.V. Kandasami wherein it has been held as under:

The words ""sufficient cause"" are nowhere defined in the Civil Procedure Code, which suggests, it has got to be construed with regard to the

facts and circumstances of each case. In the Law Lexicon by S. Ramanatha Aiyar, 1997 Edition, the various possible explanations are given as

follows: ""sufficient cause"" implies the presence of legal and adequate reason. The word ""sufficient"" means ""adequate"", ""enough"", ""as much as may

be necessary to answer the purpose intended"". It embraces no more than that which provides a plenitude which, when done, suffices to accomplish

the purpose intended in the light of existing circumstances and when viewed from reasonable standard of practical and cautions men.

Per contra, learned counsel for the respondents would submit that sufficient cause was not shown by the petitioner for his repeated absence for

four times on the dates of passing the ex parte decree and taking into account the continuous default of the petitioner and in the absence of any

proof to show the illness, the Courts below had rightly non-suited the petitioner. To substantiate his case, the learned counsel would cite the

decision in Kathavelu Vs. Murugesan, in which it has been held thus:

In the decision relied on by the respondent in Smt. Benibai Vs. Smt. Champabai, , the Madhya Pradesh High Court held that though an

Application under Order 9, Rule 13, C.P.C. cannot be allowed on humanitarian grounds, the Court should not close their eyes to the realities of

the case. The reality in this case is a sharp litigant who thinks he can play ducks and drakes with the Court. So he shall have his comeuppance. The

decision reported in K.R. Chinnathambi Gounder Vs. Bhanumathy and Others, is applicable to this case.

Even assuming that on the date of the ex parte order, he was not able to be present before the Court due to illness, there is no reason as to why he

did not pursue the matter for about five years. The act of the petitioner in filing the Application belatedly would show that he is only interested in

dragging on the proceedings, which should not be allowed by the Court.

In G.P. Srivastava Vs. Shri R.K. Raizada and Others, the Apex Court has held that under Order 9, Rule 13, C.P.C., 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 13 has 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.

Though the learned counsel for the petitioner has placed reliance upon the decision of a Division Bench of this Court in Kuppammal''s case,

referred above, which was decided following a decision of the Supreme Court in G.P. Srivastava''s case, in support of his case, the said decision is

not applicable to the present case, as, in the said case, sufficient cause was shown for non-appearance by producing a medical certificate, stating

that the petitioner was ailing from vertigo. Even in G.P. Srivastava''s case;, it was as undisputed fact that the nephew of the counsel of the appellant

had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness.

Further, in those cases, the issue was raised only once before the Trial Court and taken on Appeal on dismissal and, ultimately, the ex parte decree

was set aside subject to payment of costs to the other side.

However, in the present case, the issue was raised quadruple before the Trial Court and though the ex parte decree was set aside thrice, the

petitioner did not take steps to prosecute the matter and, instead, came on dragging on the matter for over a decade. In addition, no proof was

also filed by the petitioner to show that he was suffering from jaundice. The decision cited by the learned counsel for the respondents in

Kathavelu''s case, cited supra, which was decided following the decision reported in K.R. Chinnathambi Gounder Vs. Bhanumathy and Others, , is

quite applicable to the present case. Even assuming that on the date of the ex parte decree the petitioner was not able to be present before the

Court due to illness, it is not known why he did not pursue the matter though the Applications to set aside the ex parte decree were allowed thrice.

It was unfair for the petitioner to file the Application for the fourth time and seek for setting aside the ex parte decree. Such a practice on the part

of the petitioner is to be highly remonstrated.

Filing an Application under Order 9, Rule 13 of C.P.C. for the fourth time in a single case is nothing but a clear abuse of process of Court and

law, which provision, in fact, is not meant for that purpose. The Suit was filed in the year 1992 and dragged on till date without any valid reasons.

Finally, the respondent/plaintiff lost his life without enjoying his share of properties. Therefore, both the Trial Court and the Lower Appellate Court

have passed well considered order and judgment respectively, which, in the considered opinion of this Court, do not warrant any interference. For

all the foregoing reasons, this Civil Revision Petition is dismissed with costs. Consequently, the connected M.P. No. 1 of 2008 is also dismissed.