Madras High Court
D.Govindasamy vs S.Kandasamy on 15 November, 2021
CRP (PD) No.28 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP (PD) No.28 of 2020
and CMP No.140 of 2020
D.Govindasamy ... Petitioner
Vs
S.Kandasamy ... Respondent
Prayer: The Civil Revision petition filed under Article 115 of Code of Civil
Procedure, against the fair and final order, dated 28.11.2018 in I.A.No.624
of 2015 in O.S.No.512 of 2009 on the file of the Subordinate Court,
Perundurai, Erode.
For Petitioner : Mr.M.Guruprasad
For Respondent : Mr.S.Kaithamalai kumaran
ORDER
This Revision is directed against an order of the trial Court,
refusing to condone the delay of 1482 days in filing the petition to set aside
the exparte decree that was passed in the suit in O.S.No.512 of 2009 on the
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CRP (PD) No.28 of 2020
file of the Sub Court, Perundurai on 05.07.2011. The said suit was filed by
the respondent herein seeking recovery of money.
2. The petitioner filed a written statement disputing the signature
in the suit promissory note and also took steps to have the signature verified
by the expert. However, subsequently, the petitioner did not chose to appear
and did not cross examine the plaintiff who was examined as P.W.1.
Recording the same, the suit was decreed exparte on 05.07.2011. The
petitioner has now come up with this application seeking condonation of
delay of 1482 days.
3. According to the petitioner, his erstwhile counsel had informed
him that he would file a revision against the dismissal of the I.A.No.95 of
2011 filed by the him seeking amendment of the written statement.
Believing that he would get information from the counsel, he did not contact
the counsel and therefore the exparte decree came to be passed on
05.07.2011 and he came to know about the exparte decree only on service of
notice in the Execution petition filed by the respondent herein in E.P.No.56
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CRP (PD) No.28 of 2020
of 2014. Claiming that, the delay neither wilful nor wanton, the petitioner
sought for condonation of delay of 1482 days.
4. This application was resisted by the respondent contending that
the reasons assigned are not true. It was also pointed out that the petitioner
was served with the Execution petition on 10.11.2014, he filed a counter
and contested the Execution proceedings. However, the application for
condonation of delay was eventually filed on 27.07.2015 i.e., almost 11
months after service of notice in the Execution Petition. There is no reason
for the said delay.
5. The learned trial Judge considered the reasons assigned for the
delay and concluded that the petitioner has not assigned sufficient cause for
condonation of such a long delay. The learned trial Judge also found that
the petitioner is guilty of negligence and latches. On the said findings, the
learned trial Judge dismissed the application for condonation of delay.
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CRP (PD) No.28 of 2020
6. I have heard Mr.M.Guruprasad, learned counsel for the
petitioner and Mr.S.Kaithamalai kumaran, learned counsel appearing for the
respondent.
7. Mr.M.Guruprasad, learned counsel for the petitioner would
vehemently contend that in view of the defence taken regarding the
execution of the promissory note, he should be given an opportunity to
contest the suit.
8. The exparte decree came to be passed on 05.07.2011. The trial
Court even before passing the exparte decree has observed that the counsel
for the petitioner/defendant present in Court and he has not ready to cross
examine P.W.1. Therefore, the counsel for the petitioner was very much
aware of the exparte decree, dated 05.07.2011.
9. It is also the claim of the petitioner that he was not informed by
the counsel. I am unable to accept the said statement. In fact, the petitioner
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CRP (PD) No.28 of 2020
has, through the said counsel filed an application for having the
application referred to expert as well as another application for amendment
of the written statement which came to be dismissed on 14.03.2011.
Therefore, I am unable to accept the reasons assigned in the affidavit filed in
support of the application that the counsel did not inform him about the
exparte decree. Even otherwise, there is no acceptable reason for the delay
between the date of service in the Execution petition and date of filing of
the petition under Section 5 of the Limitation Act, which is about 11 months
later. The trial Court was justified in concluding that the petitioner is guilty
of negligence and latches. I therefore see no material irregularity in order to
interfere with the same.
10. Mr.M.Guruprasad, learned counsel appearing for the
petitioner would contend that the decree passed in the instant case does not
satisfy the requirements of the Order XX Rule 4 and 5 of the Code of Civil
Procedure.
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CRP (PD) No.28 of 2020
11. I am unable to accept the contention of the learned counsel. A
perusal of the Judgment would show that the learned trial Judge has
considered the evidence and also quoted the absence of cross examination
of P.W.1. Hence, I find that the Judgment and decree of the trial Court
discloses the application of mind on the part of the trial Court before
decreeing the suit. The revision therefore fails and it is dismissed
accordingly. No costs. Consequently, connected miscellaneous petition is
closed.
15.11.2021
vum
Index: Yes/No
Speaking order / Non speaking order
To:
The Subordinate Court, Perundurai, Erode.
https://www.mhc.tn.gov.in/judis
CRP (PD) No.28 of 2020
R.SUBRAMANIAN, J.
vum
CRP (PD) No.28 of 2020
and CMP No.140 of 2020
15.11.2021
https://www.mhc.tn.gov.in/judis
