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SARADAMBAL versus SANTHI

High Court of Madras

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Saradambal v. Santhi - C.R.P.NPD.(MD).No.1014 of 2006 [2007] RD-TN 850 (7 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 07/03/2007

CORAM :

THE HONOURABLE MR.JUSTICE S.RAJESWARAN

C.R.P.NPD.(MD).No.1014 of 2006

and M.P.(MD).No.1 of 2006

Saradambal ... Petitioner Vs.

1. Santhi

2. Muthuraj

3. Rani

4. Rajalakshmi

5. Manjula

6. Venkatesh ... Respondents

Prayer

Petition filed under Section 115 of Civil Procedure Code to set aside the fair and decreetal order made in I.A.No.285 of 2006 in O.S.No.69 of 2004 dated 21.19.2006 on the file of the Principal District Munsif Court, Valangaiman at Kumbakonam.

For Petitioner : Mr. R.Raja Raman

For Respondents : Mr. T.V.Shivakumar

:ORDER



The Civil Revision Petition has been filed against the order dated 21.09.2006 made in I.A.No.285 of 2006 in O.S.No.69 of 2004 on the file of the Principal District Munsif, Valangaiman at Kumbakonam.

2. The Defendant is the Revision Petitioner before this Court.

3. The suit has been filed by Respondents/ Plaintiffs in O.S.No.153 of 2000 on the file of the Sub Court, Kumbakonam for declaration and recovery of Possession and for other reliefs. Then the suit was transferred to the Principal District Munsif Court, Valangaiman at Kumbakonam and renumbered as O.S.No.69 of 2004., An exparte decree was passed by the trial Court on 18.11.2005 due to the absence of the petitioner/ defendant. Therefore a petition was filed to set aside the said exparte decree and since there was a delay of 234 days in filing the application, an application was filed in I.A.No.285 of 2006 to condone the delay of 234 days. The trial Judge dismissed the said application. Aggrieved against that the above Civil Revision Petition has been filed.

4. Heard the learned Counsel for the petitioner and the learned counsel for the respondents. I have also gone through the documents filed in support of their submissions.

5. The learned counsel for the petitioner submits that when the suit was posted for trial on 18.11.2005, she could not be present nor could instruct the counsel, because of the fracture suffered in her left leg. More over, she is in the advanced age of 76 years and not being able to move out due to her constant hospitalisation. Therefore she prayed for setting aside the said exparte decree. The learned counsel for the petitioner further adds that she is interested in conducting the suit and because of her fracture, she could not move. Hence she prayed for setting aside the order passed by the Court below.

6. Per Contra, the learned counsel for the respondents vehemently opposed and contended that the petitioner/defendant is in the habit of remaining exparte and thereafter filing an application for setting aside the same. On an earlier occasion also ie, in the year 2005, the Suit was allowed to be a decreed exparte at the instance of Revision Petitioner/defendant and thereafter an application was filed to set aside the same. The trial Court exercised its discretion and the said petition was allowed in favour of the Revision Petitioner. Once again the petitioner/defendant remained exparte and exparte decree was passed. The discretion once exercised in favour of the petitioner/defendant by the Court below cannot be exercised repeatedly. He also, in support of his contention relied on a decisions of this Court reported in 1998(2) M.L.J.574 (Muthusamy Vs. Indian Overseas Bank, Alangulam, through its Branch Manager) and 2005(2) CTC 362 (Kasipalayam Town Panchayat, rep. By its Executive Officer, Kasipalayam, Erode, Vs. Arumugam and others).

7. Upon hearing the submissions of the learned counsel appearing on either side and on going through the documents and the citations, I am of the considered view that some indulgence must be certainly shown to the petitioner/defendant in a matter of this nature on terms.

8. In a matter of delay, there is always bound to be some lapse on the part of the litigant. The supreme Court in recent days has been considerate in allowing such applications filed for condoning the delay for setting aside the exparte decree. The supreme Court has stated that parties should be allowed to adjudicate the lis between them on merits instead of closing the doors at the threshold.

9. In 1998(II) MLJ 574 (cited supra)this Court head as follows: Para 15. "judicial discretion vested with the court in considering the question of delay, however small or however large and enormous it may be, rests in the Court's discretion and it is that discretion that matters at the end. In order to exercise the discretion in favour of the petitioner, it is needless to state that the applicant shall plead and establish that he was neither careless not negligent in defending the Suit.

10. In 2005(II) 362 (Cited supra) this Court held that while exercising the discretion in considering the petition u/s 5 of the Limitation Act, the Court should exercise the same by following the Principle of Judicial discretion ie, the exercise of Judgement based on what is fair under the circumstances and guided by the rules and principles of law.

11. There is no quarrel over the above the proportion of law as held by this Court and they are not useful to the respondents' case. Further, the reasons are to be considered by the Court for the absence on the particular day and the previous absence resulting in passing exparte orders should not be considered, for the present absence.

12. Therefore, I am inclined to allow the Civil Revision Petition by setting aside the order passed by the Court below. However for the lapses committed by the petitioner/defendant, I direct the petitioner to pay a sum of Rs.1,000/- to the learned counsel for the respondents within a period of 15 days from the date of receipt of a copy of this order.

13. It is made clear that the payment of cost as directed above is not paid as stipulated, the Civil Revision Petition will stand dismissed automatically without further reference to this Court. On compliance of the payment of cost made as directed above, the trial Court shall take up the application filed under Order 9 Rule 13 and dispose of the application on merits at the earliest.

14. In the result, with the above direction, this Civil Revision is disposed of. Consequently, connected M.P. is also closed. To

1. The Principal District Munsif,

Valangaiman at Kumbakonam.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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