Tamil Nadu State Transport Corporation Division IV Limited vs The Tiruchirappalli Consumer Co-operative Wholesale Stores

R. Banumathi, J.—Challenge in this revision is to the order of the Principal District Judge, Trichy, dated 22.09.2008, passed in C.M.A. No.

5 of 2008, declining to interfere with the order passed by the II-Additional Sub-Judge, Trichy, dismissing the application filed by the revision

Petitioner under Order 9, Rule 3 CPC to set aside the ex-parte decree passed against it in O.S. No. 30 of 1998 on 13.12.2004. The revision

Petitioner is the 1st Defendant in the suit.

The brief facts are that the revision Petitioner/1st Defendant was running a canteen in its office premises at Trichy. The 2nd Defendant in the suit

- The Tamil Nadu State Transport Corporation Limited, rep. by its Managing Director, Pudukkottai, is the head office of the 1st Defendant.

Goods like rice, vegetables, groceries, etc. were supplied by the Respondent/Plaintiff -Tiruchirappalli Consumers Co-operative Wholesale Stores

(Chinthamani Super Market) Limited to the revision Petitioner/1st Defendant. The 3rd Defendant in the suit (who was also set ex-parte) was

working in the 1st Defendant office used to make purchases from the Respondent/Plaintiff, based on the intents prepared by the revision

Petitioner/1st Defendant.

Stating that amount has not been paid towards the articles supplied by them and based on the ledger accounts, the Respondent/Plaintiff filed a

suit for recovery of Rs. 1,30,280.10 from the Defendants. In the said suit, the revision Petitioner/1st Defendant entered appearance on

30.04.1998 through their counsel Mr. V. Srinivasan. Inspite of number of opportunities, the revision Petitioner has not filed written statement and,

therefore, the revision Petitioner was set ex-parte on 03.08.2001. The trial court proceeded with the trial. The 2nd Defendant - Head office of the

1st Defendant, filed a written statement contending that it is not liable to pay any amount. After heavy contest, by the judgment dated 13.12.2004,

the suit came to be dismissed as against the contesting 2nd Defendant. Insofar as Defendants 1 and 3, who were set ex-pare, the suit was decreed.

Stating that it was set ex-parte and an ex-parte decree was passed against it on 13.12.2004 and that it has got arguable case and also good

defence, the revision Petitioner/1st Defendant filed I.A. No. 477 of 2006 on 10.01.2005 under Order 9, Rule 3 and Section 151 CPC to set aside

the ex parte decree passed against it on 13.12.2004. Referring to the number of opportunities afforded to the revision Petitioner for filing written

statement and holding that inspite of such opportunities, written statement was not filed by the revision Petitioner, the trial court dismissed the

application. The trial court also observed that only after full trial, the judgment was passed on 13.12.2004 and, therefore, the same cannot be

termed as an ex-parte decree and in such a situation the remedy for the revision Petitioner was only to file an appeal and not a petition under Order

9 Rule 3 CPC seeking to set aside the decree. Being aggrieved by the dismissal of the application in I.A. No. 477/2006 on 08.10.2007, the

revision Petitioner filed an appeal before the District Court, Trichy, in CMA No. 5 of 2008 and the same also came to be dismissed on

22.09.2008, which is the subject matter of challenge in this revision.

Learned Counsel for the revision Petitioner contended that the non-appearance of the Petitioner/1st Defendant was bona fide since the 1st

Defendant was under the impression that the 2nd Respondent, who is the Managing Director in the Head Office, would take care of the case of

the revision Petitioner also. It was further submitted that the courts below ought to have seen that the Tamil Nadu State Transport Corporation is a

Government undertaking and operated with the public money and while so the trial courts ought to have given an opportunity to the revision

Petitioner/1st Defendant to defend its case, particularly when the Court has found that the 2nd Respondent was not liable. It was further submitted

that the revision Petitioner/1st Defendant has got substantial defence and therefore an opportunity should be given to the 1st Defendant to put-forth

its defence.

Heard the learned Counsel for the Respondent/Plaintiff Co-operative Stores.

As pointed out earlier, the 1st Defendant has entered appearance on 13.04.1998 through their counsel Mr. V. Srinivasan. Since, on service of

summons, the revision Petitioner/1st Defendant has entered appearance through their counsel, the revision Petitioner has come to know about the

filing of the suit against them and also the averments made in the plaint. As is seen from the order of the trial Court, the trial court has granted a

number of opportunities to the revision Petitioner/1st Defendant to file written statement (on 22.06.1998, 19.08.1998, 14.10.1998, 04.02.1999,

17.02.1999, 08.07.1999 and 28.09.1999). On 28.09.1999, a conditional order was passed that the revision Petitioner has to file the written

statement finally on 17.12.2000. Even then time was further extended for filing written statement on 13.03.2000, 27.06.2000 and 10.08.2000 and

finally on 03.08.2001, the revision Petitioner/1st Defendant has not chosen to file written statement and ultimately it was set ex-parte on

03.08.2001. The court below, after finding that the 2nd Defendant/head office has filed the written statement and heavily contested the matter and

after full trial pronounced the judgment on 13.12.2004.

As pointed out by the courts below, even though nearly two years time was given to the revision Petitioner/1st Defendant, the revision

Petitioner/1st Defendant has not chosen to file written statement. When a party has entered appearance in the suit and has not filed written

statement, the party has to show cause that he has sufficient cause for non-filing of the written statement. According to the revision Petitioner/1st

Defendant, it was under the impression that the 2nd Defendant would take care of the 1st Defendant also. As per the plaint, it was only the 1st

Defendant which was running the canteen at Trichy and the 2nd Respondent was only in the Head Office. The 2nd Defendant has filed its written

statement stating that it is not liable to pay any amount. When there was averments in the plaint that it had purchased groceries from the Plaintiff co-

operative stores and did not make payment, the 1st Respondent ought to have taken care in filing the written statement and putting forth its

defence. Inspite of number of opportunities, the 1st Defendant has neither availed the opportunity nor filed the written statement and the trial Court,

even after giving number of opportunities having no other option, rightly set the revision Petitioner/1st Defendant ex-parte and after full trial,

judgment was passed by the Court below on 13.12.2004.

As pointed out by the courts below, even though Defendants 1 and 3 were set ex-parte, the said judgment cannot be termed as an ex-parre

decree as it was passed after full trial. That apart, the suit was of the year 1998 and the judgment came to be passed nearly after six years. The

revision Petitioner/1st Defendant has not made out any justifiable grounds to set aside the judgment which was passed on 13.12.2004, after full

trial. In the orders passed by the courts below, exercising the revision jurisdiction, the High Court will not interfere unless the order is shown to be

perverse nor there was improper exercise of discretion. In the present case, there is no improper exercise of discretion by the courts below

warranting interference by this Court.

In the result, the revision petition is dismissed. No costs. Connected M.P.(MD) No. 1 of 2009 is also dismissed.