Madras High Court
Jayanthi Ramesh vs E.Mahendran on 6 September, 2021
C.R.P.(PD).No.2457 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)No.2457 of 2017
and C.M.P.No.11657 of 2017
Jayanthi Ramesh .. Petitioner
Vs.
1.E.Mahendran
2.R.Manikandan .. Respondents
Prayer: Civil Revision Petition filed under Section 115 of C.P.C., to set
aside the fair and decreetal order dated 21.06.2016 made in I.A.No.249
of 2017 in O.S.No.2279 of 2016 on the file of the XVI Assistant City
Civil Court, Chennai.
For Petitioner : Mr.R.Chakkaravarthy
for M/s.V.Baskaran
For Respondents : Ms.Raja Shama Gayathri
for Mr.K.Kovi Ganesan
1/8
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2457 of 2017
ORDER
(The matter is heard through 'video conferencing/hybrid mode')
This Civil Revision Petition is filed to set aside the fair and
decreetal order dated 21.06.2016 made in I.A.No.249 of 2017 in
O.S.No.2279 of 2016 on the file of the XVI Assistant City Civil Court,
Chennai.
2.The petitioner is defendant in O.S.No.2279 of 2016 on the file of
the XVI Assistant City Civil Court, Chennai. The respondents filed the
said suit for recovery of money against the petitioner. The petitioner
entered appearance through counsel on 14.06.2014, but she did not file
written statement. She was set exparte on 03.12.2016. The petitioner filed
I.A.No.249 of 2017 under Order IX Rule 9 of C.P.C., to set aside the
exparte order dated 03.12.2016. According to the petitioner, on that date,
her counsel was not well and bedridden and hence, she could not file
written statement. Non-filing of written statement is neither wilful nor
wanton. The respondents filed counter affidavit, giving the dates on
which the petitioner was granted time to file written statement. As per
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C.R.P.(PD).No.2457 of 2017
Order VIII Rule 1 of C.P.C., the written statement has to be filed within
30 days from the date of receipt of summons. The petitioner filed written
statement only after 190 days, after being set exparte on 03.12.2016. He
has not filed any delay petition along with the petition to set aside the
exparte order. The petitioner has intentionally not filed written statement
within the time limit, with a view to prolong the proceedings. The reason
given by the petitioner is not valid and prayed for dismissal of
I.A.No.249 of 2017.
3.The learned Judge, considering the averments in the affidavit,
counter affidavit and dates given by the respondents and judgments
relied on by the learned counsel for the respondents, dismissed the
I.A.No.249 of 2017, holding that the reason given by the petitioner to set
aside the exparte order is not sufficient and valid.
4.Against the said order dated 21.06.2016 made in I.A.No.249 of
2017 in O.S.No.2279 of 2016, the present Civil Revision Petition has
been filed.
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C.R.P.(PD).No.2457 of 2017
5.The learned counsel appearing for the petitioner contended that
only after condoning the delay in filing the written statement, the suit
was posted to 03.12.2016, for filing written statement. Having condoned
the delay in filing the written statement, the learned Judge erred in
dismissing the I.A. filed under Order IX Rule 9 of C.P.C. The written
statement was prepared in November, 2016 and due to ill-health of the
counsel, it was not filed on 03.12.2016. The learned Judge failed to
consider that along with the petition to set aside exparte order, the written
statement was filed by the petitioner. The learned Judge ought to have
taken the written statement on file and set aside the exparte order. The
learned Judge committed an error in discussing the limitation in the
petition filed to set aside the exparte order. The two judgments relied on
by the counsel for the respondents before the Trial Court are not
applicable to the facts of the present case and prayed for allowing the
Civil Revision Petition.
6.Heard the learned counsel appearing for the petitioner as well as
the respondents and perused the entire materials available on record.
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C.R.P.(PD).No.2457 of 2017
7.From the materials on record, it is seen that the petitioner was set
exparte on 03.12.2016, for not filing written statement. The petitioner
filed I.A.No.249 of 2017 to set aside the exparte order along with the
written statement. In the affidavit filed to set aside the exparte order, the
petitioner has given reason that her Advocate was bedridden on
03.12.2016 and therefore, he could not appear before the Court and file
written statement on that day. The petitioner or her counsel failed to
produce any materials to show that her counsel was bedridden and could
not attend the Court. Similarly, no document was filed showing the date
from which her counsel was not well. Further, the respondents have
given date on which the petitioner entered appearance and subsequent
dates granted for filing written statement. By furnishing the dates, the
respondents have established that the petitioner has not filed written
statement within 90 days, as contemplated under Order VIII Rule 1 of
C.P.C. The written statement was filed only after 190 days of service of
summons and petitioner has not filed any application for condoning the
delay. The contention of the learned counsel for the petitioner that only
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C.R.P.(PD).No.2457 of 2017
after condoning the delay, the suit was posted for filing written statement
and the consideration of limitation by the learned Judge is erroneous, is
without merits. As per Order VIII Rule 1 of C.P.C., the defendant has to
file written statement within 30 days from the date of issue of summons.
The Court can extend the time for filing written statement by another 60
days, by recording the reason for granting time. This provision clearly
shows that the Court can extend the time only by recording reason for
such an extension. In the present case, the learned Judge has not granted
any extension of time by recording reason as contemplated under Order
VIII Rule 1 of C.P.C. In view of the same, the learned Judge rightly
considered the limitation for filing the written statement. That apart, the
only reason given by the petitioner for not appearing and not filing the
written statement on 03.12.2016 is, her counsel was bedridden. As rightly
considered by the learned Judge, the petitioner has not proved by filing
documents that her counsel was bedridden and has not attended the work
on that date. Further, the petitioner was not diligent enough to follow the
case with her Advocate. The petitioner has not explained as to why the
written statement was not filed within 90 days, as contemplated under
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C.R.P.(PD).No.2457 of 2017
Order VIII Rule 1 of C.P.C. An exparte order or decree can be set aside
only when a party gives sufficient or valid reason for condoning the
same. In the present case, the reason given by the petitioner is not
sufficient and valid. The learned Judge has considered the entire
materials and rightly dismissed I.A.No.249 of 2017. There is no error or
irregularity in the order of the learned Judge, warranting interference by
this Court.
For the above reason, the Civil Revision Petition is dismissed. No
costs. Consequently, connected Miscellaneous Petition is closed.
06.09.2021
Index :: Yes/No
gsa
To
The XVI Assistant Judge,
City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2457 of 2017
V.M.VELUMANI, J.
gsa
C.R.P.(PD)No.2457 of 2017
06.09.2021
https://www.mhc.tn.gov.in/judis/
