Madras High Court
N.Devarajan vs C.Babu on 9 April, 2021
CRP.NPD.No.610 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.610 of 2018
and
CMP.No.3202 of 2018
N.Devarajan ... Petitioner
Vs.
C.Babu ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order passed in I.A.No.778 of 2014 in
O.S.No.269 of 2009 dated 28.04.2017 pending on the file of the
Subordinate Judge at Tambaram by allowing the Civil Revision Petition.
For Petitioner : Mr.B.Vijay
Respondent : Mr.N.Selvaraj
ORDER
This Civil Revision Petition is directed against the fair and decretal
order passed in I.A.No.778 of 2014 in O.S.No.269 of 2009 dated
28.04.2017 on the file of the learned Subordinate Judge, Tambaram, thereby
allowing the petition to condone the delay in filing the application to set
aside the ex-parte decree.
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2. The petitioner is the plaintiff and the respondent is the defendant.
The petitioner filed a suit for recovery of money. While pending the suit, the
respondent after receipt of notice, failed to appear before the trial Court and
as such, he was set ex-parte on 20.01.2010. He filed a petition in I.A.No.735
of 2010 to set aside the ex-parte order and the same was allowed. The
respondent also filed a written statement along with the petition to set aside
the ex-parte order. Thereafter, the trial commenced and the petitioner was
examined as P.W.1 and Exs.A.1 to A.3 were marked. Thereafter, the suit
was posted for cross examination. The respondent did not cross examine
P.W.1 on several occasions and at the request of the respondent, the suit
was adjourned on so many occasions. Thereafter, he was absent before the
trial Court and as such, again he was set ex-parte and the ex-parte decree
was passed on 26.06.2013. Thereafter, the respondent come forward with
the petition to set aside the ex-parte decree with a delay of 364 days.
3. On a perusal of the affidavit filed in support of the petition to set
aside the ex-parte order in I.A.No.735 of 2010 and the affidavit filed in
support of the present petition to condone the delay of 364 days in filing the
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CRP.NPD.No.610 of 2018
application to set aside the ex-parte decree in I.A.No.778 of 2014, the
averments are one and the same. The relevant portion of both affidavits as
follows:-
“4. I submit that I have receive private notice,
however I have not received any application or plaint in
the above suit and several times my counsel represented
before this Hon'ble Court to furnish plaint copy but I
could not get it and I was unable to file the written
statement, moreover I am aware of the relief sought for by
the plaintiff in the suit.
5. I submit that the above suit was called and I was
called absent and set ex-parte and ex-parte order was
passed against me. I submit that I working in Fire Service
Department I was posted in North Madras and I have to
attend duty in the every day morning at 6.00 a.m.,
therefore I could not contact my counsel and filed the
written statement in time. The non-filing of written
statement is neither wilful nor wanton, but due to the
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CRP.NPD.No.610 of 2018
reasons stated above. Hence it is just and necessary to set
aside the ex-parte order passed against me and permit me
to file written statement and contest the case on merits.
Otherwise, I will be put to irreparable loss and hardship.
No prejudice would be caused to the respondent/plaintiff
in this application being allowed.
4. I submit that I have receive private notice,
however I have not received any application or plaint in
the above suit and several times my counsel represented
before this Hon'ble Court to furnish plaint copy but I
could not get it and I was unable to file the written
statement, moreover I am aware of the relief sought for by
the plaintiff in the suit.
5. I submit that the above suit was called on
26.06.2013 and I was called absent and set ex-parte and
ex-parte order was passed against me. I submit that I
working in Fire Service Department I was posted in North
Madras and I have to attend duty in the every day morning
at 6.00 a.m., therefore I could not contact my counsel and
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CRP.NPD.No.610 of 2018
filed the written statement in time.”
4. It is nothing but cut and paste act and no other reasons have been
stated by the respondent to condone the delay of 364 days in filing the
petition to set aside the ex-parte decree.
5. The learned counsel for the petitioner submitted that the
respondent filed a false affidavit containing concocted stories and failed to
state any sufficient cause to condone the delay of 364 days. The petitioner
filed the suit for recovery of money in the year 2009 and the respondent
simply dragged the suit for recovery of money for the past 11 years.
Therefore, the respondent wilfully and wantonly allowed the Court below
set him ex-parte and the ex-parte decree was passed. On the strength of the
ex-parte decree, the petitioner also filed an Execution Petition in E.P.No.26
of 2014 to release the decree amount. At that juncture, the respondent filed
a petition to set aside the ex-parte decree with a delay of 364 days. In
support of his contentions, he relied upon the judgments reported in 1996
(1) CTC 717 (Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust
-vs- R.M.Sevagan Chettiar), (2013) 12 SCC 649 (Esha Bhattacharjee -vs-
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CRP.NPD.No.610 of 2018
Managing Committee of Ragunathpur Nafar Academy), (2016) 3 SCC 70
(Sciemed Overseas Inc. -vs- BOC India Limited) and 2017 (3) CTC 151
(Sathyanarayana -vs- T.J.Dhanakoti @ Koti).
6. Per contra, the learned counsel for the respondent submitted that
the counsel who appeared on behalf of the respondent made a mistake by
cut and paste of the earlier affidavit filed in support of the petition to set
aside the ex-parte order in I.A.No.735 of 2010 and the said mistake was not
deliberate one. Due to inadvertence, the mistake was committed by the
counsel and as such, the respondent should not be punished, when the
mistake was committed by his counsel. He further submitted that on merits
he has got very good case to succeed in the suit. Normally the condone
delay petition should be considered liberally. In support of his contentions,
he relied upon the judgment of the Hon'ble Supreme Court of India passed
in Civil Appeal No.4669 of 2019 (Bhivchandra Shankar More -vs- Balu
Gangaram More & Ors).
7. Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent.
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CRP.NPD.No.610 of 2018
8. As stated supra, the respondent did not whisper about the reason
for non appearance before the trial Court on 26.06.2013. The reasons stated
in the affidavit filed in support of the petition to set aside the ex-parte order
was verbatim stated in the petition to condone the delay of 364 days in
filing the petition to set aside the ex-parte decree. Admittedly, the
respondent filed a written statement, at the time of filing the petition to set
aside the ex-parte order as early as on 20.08.2010 itself. Thereafter, the
Court below posted the suit for trial and the petitioner was examined as
P.W.1 and Exs.A.1 to A.3 were marked and thereafter, the suit was posted
for cross examination of P.W.1. Thereafter, the respondent failed to cross
examine P.W.1 and had taken adjournment on so many occasions. Finally,
the respondent failed to appear on 26.06.2013 and the ex-parte decree was
passed as against the respondent. The respondent not only failed to state any
sufficient cause to condone the delay of 364 days and also filed false
affidavit before the Court below to condone the delay of 364 days.
9. In this regard, the learned counsel for the petitioner relied upon the
judgment reported in 1996 (1) CTC 717 (Sri Pillaiyarpatti Karpaga
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CRP.NPD.No.610 of 2018
Vinayagar Koil Nagarathar Trust -vs- R.M.Sevagan Chettiar), wherein it
is held as follows:-
“7. It has been repeatedly held by this Court that ex
parte decrees cannot be set aside on vague allegations that
the defendant was ill. It is for the defendant to prove that he
was so ill on the particular day that he could not attend
Court. Until then, it could not be said that there was sufficient
cause for his non-appearance. Without proving the sufficient
cause to the satisfaction of the Court, no person can claim to
have the ex parte decree set aside. In this connection, the
ruling of this Court in Arukkani Ammal v. Guruswamy, 1987
(1) M.L.J.32: 100 L.W.707 can be looked into. The learned
Chief Justice has laid down the proposition that ex parte
decrees cannot be set aside on value allegations of illness.”
10. The learned counsel for the petitioner further relied upon the
judgment reported in (2013) 12 SCC 649 (Esha Bhattacharjee -vs-
Managing Committee of Ragunathpur Nafar Academy), wherein it is held
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CRP.NPD.No.610 of 2018
as follows:-
“......
21.4. (iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
counsel or litigant is to be taken note of.
21.5 (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.8 (viii) There is a distinction between inordinate
delay and a delay of short duration or few days, for to the
former doctrine of prejudice is attracted whereas to the latter
it may not be attracted. That apart, the first one warrants
strict approach whereas the second calls for a liberal
delineation.
21.9 (ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant factors to be
taken into consideration. It is so as the fundamental principle
is that the courts are required to weigh the scale of balance of
justice in respect of both parties and the said principle cannot
be given a total go by in the name of liberal approach.
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CRP.NPD.No.610 of 2018
21.10. (x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the courts
should be vigilant not to expose the other side unnecessarily to
fact such a litigation.
22.1. (a) An application for condonation of delay should
be drafted with careful concern and not in a haphazard
manner harbouring the notion that the courts are required to
condone delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to justice
dispensation system.”
11. The learned counsel for the petitioner also relied upon the
judgment reported in (2016) 3 SCC 70 (Sciemed Overseas Inc. -vs- BOC
India Limited), wherein it is held as follows:-
“29. Similarly, in Muthu Karuppan v.Parithi
Ilamvazhuthi (2011 5 SCC 496 : (2011) 2 SCC (Cril) 709 this
Court expressed the view that the filing of a false affidavit
should be effectively curbed with a strong hand. It is true that
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CRP.NPD.No.610 of 2018
the observation was made in the context of contempt of court
proceedings, but the view expressed must be generally
endorsed to preserve the purity of judicial proceedings. This
is what was said: (SCC p.501, para 15)
“15. Giving false evidence by filing false affidavit is an
evil which must be effectively curbed with a strong hand,
Prosecution should be ordered when it is considered
expedient in the interest of justice to punish the delinquent,
but there must be a prima facie case of 'deliberate falsehood'
on a matter of substance and the court should be satisfied that
there is a reasonable foundation for the charge.”
12. The learned counsel for the petitioner also relied upon the
judgment reported in 2017 (3) CTC 151 (Sathyanarayana -vs-
T.J.Dhanakoti @ Koti), wherein it is held as follows:-
“28. On fair reading of the above judgment, the Hon'ble
High Court and the Hon'ble Supreme Court has categorically
held that for filing of false/misleading Affidavit, imposition of
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exemplary Costs fully justified and such filing to be strongly
discouraged and the Hon'ble Supreme Court affirmed the
Order passed by the Hon'ble High Court be means of 10 lakhs
on the Petitioner for filing a false or misleading Affidavit in
Court.
29. The Hon'ble Supreme Court in the above referred
cases, made it clear that the Hon'ble Supreme Court hold that
in this context the Maxim vigilantibus non dormientibus jura
subveniunt (law assists those, who are vigilant and not those,
who sleep over their rights) aptly applies to the case on hand.
The Petitioner/Defendant had simply by throwing the blame on
the previous Counsel by stating that he died before 2 years and
therefore, the delay of 1114 days has occurred, for filing/re-
presenting the Application is totally false.”
13. The Hon'ble Supreme Court of India held that an application for
condonation of delay should be drafted with careful concern and not in a
haphazard manner harbouring the notion that the courts are required to
condone delay on the bedrock of the principle that adjudication of a lis on
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merits is seminal to justice dispensation system.
14. In the case on hand, admittedly, the respondent filed an affidavit
in support of the condone delay petition by cut and paste of the earlier
affidavit filed in support of the petition to set aside the ex-parte decree. No
sufficient cause had been shown by the respondent to condone the delay. It
is nothing but concocted and fanciful story.
15. The Hon'ble Supreme Court of India has also held in number of
judgment that there should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation of
delay. In the case on hand, the respondent failed to show any sufficient
cause to condone the delay of 364 days. The suit is for recovery of money
filed in the year 2009 and it is pending for the past 11 years. Therefore, the
above judgments are squarely applicable to the case on hand.
16. Whereas, the Court below condoned the delay only for the
reasons to avoid multiplicity of proceedings in the interest of justice to
decide the case on merits. Further, the Court below concluded that the
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CRP.NPD.No.610 of 2018
respondent failed to adduce satisfactory reasons for each and every day of
delay and also filed a petition with false affidavit and even then allowed the
petition. Therefore, the order passed by the Court below is perverse and
illegal and it is liable to be set aside.
17. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.778 of 2014 in O.S.No.269 of 2009
dated 28.04.2017 is set aside. Consequently, the connected Miscellaneous
Petition is closed. No costs.
09.04.2021
Speaking order
Index : Yes
Internet : Yes
kv
To
1. The Subordinate Judge, Tambaram.
2. The Section Officer,
V.R.Section, High Court of Madras.
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CRP.NPD.No.610 of 2018
G.K.ILANTHIRAIYAN,J.
Kv
CRP.NPD.No.610 of 2018
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.610 of 2018
09.04.2021
https://www.mhc.tn.gov.in/judis/
