M/S.Paulson'S Limited vs M/S.S.V.S. Enterprise
2022 Latest Caselaw 1436 Mad

                                                                               C.M.A.No.1568 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Reserved on : 27.08.2021

                                             Date of Verdict :   31.01.2022

                                                     CORAM

                                  THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN

                                             C.M.A.No.1568 of 2019

                                                        and

                                             C.M.P No.4467 of 2019


                  M/s.Paulson's Limited
                  Rep. by its authorised representative
                  Mr.Jayaraj, S/o.Arumuga Nainar
                  Hindu, aged about 73 years
                  Residing at Flat No.7, Singapore Avenue
                  Moolakulam, Pondicherry                             .. Appellant


                                                      Vs.

                  M/s.S.V.S. Enterprise
                  a registered Partnership Firm
                  Represented by its Partner
                  R.Venugopal, S/o.R.Ramamoorthy
                  Hindu, aged about 48 years
                  Having its office at Door No.41
                  Chidambaram Road, Jayakondam
                  Ariyalur District-621 802.                          ...Respondent


                  1/6


https://www.mhc.tn.gov.in/judis
                                                                                   C.M.A.No.1568 of 2019

                  PRAYER : Civil Miscellaneous Appeal is filed under Order XLIII Rule 1(d)
                  read with Section 104 of C.P.C, praying to set aside the order and decretal
                  order passed by the Principal District Judge, Puducherry dated 04.01.2019
                  passed in I.A No.1653 of 2017 in O.S No.72 of 2014.

                                        For Appellant       : Mr.D.Prabhu Mukunth Arunkumar


                                        For Respondent      : Mr.V.Raghavachari



                                                   JUDGMENT

The fair and decreetal order, passed in I.A.No.1653 of 2017 in

O.S.No.72 of 2014, dated 04.01.2019 is under challenge in this Civil

Miscellaneous Appeal.

2. The appellant is the defendant. The respondent is the plaintiff.

The suit was filed for recovery of money. In the suit proceedings, the

appellant was set exparte for non examination of PW1 on 24.04.2017 and he

had filed two interlocutory applications in I.A Nos.955 of 2017 and 956 of

2017 to reopen the case and to set aside the exparte order, dated 24.04.2017

https://www.mhc.tn.gov.in/judis C.M.A.No.1568 of 2019

respectively. The said applications were allowed on 21.7.2017 subject to

payment of a cost of Rs.1,500/- to the Legal Services Authority. Thereafter,

the said petitions were dismissed due to non-compliance of the said order and

hence, the trial Court had passed an exparte decree on 04.08.2017. As against

the said exparte decree, the appellant/defendant had filed the present

application to set aside the exparte decree, dated 4.8.2017 and the same was

also dismissed on merits by the impugned order. Challenging the above, this

civil miscellaneous appeal has been filed by the defendant.

3. The learned counsel for the appellant would submit that the

trial Court had dismissed the application filed by the defendant under Order

IX Rule 13 CPC on the ground that the application is barred on the principle

of issue of estoppel and therefore, the findings of the trial Court is contrary to

the provisions of Order IX Rule 13 CPC and hence, he would pray to allow

this appeal. The learned counsel has relied on the judgments rendered in the

cases of 1) Narayana Gounder vs. Devaki and another reported in (1999

(II) CTC 439), 2) B.Janakiramaiah Chetty v. A.K.Parthasarathi and

others reported in (2003) 5 Supreme Court Cases 641), 3) Bhanu Kumar

https://www.mhc.tn.gov.in/judis C.M.A.No.1568 of 2019

Jain v. Archana Kumar and another reported in (2005) 1 Supreme Court

Cases 787), and 4) G.Ratna Raj (D) by LRs. v. Sri Muthukumarasamy

Permanent Fund Ltd and another reported in (2019 (4) CTC 122).

4. The learned counsel for the respondent would submit that the

trial Court had rightly dismissed the application filed by the appellant to set

aside the exparte decree. The learned counsel has relied on the judgment

rendered in the case of Narayana Gounder vs. Devaki Ammal and another

reported in (1999 (II) CTC 439.

5. The judgment and decree dated 04.08.2017 was not passed on

merits. Non-utilizing the opportunity by the appellant alone cannot be the

basis to reject his prayer, as what is more important is that the interest of

justice is to be secured. Further, no prejudice would be caused to the

respondent/plaintiff, if one more opportunity is given to the

appellant/defendant to contest the case on merits by imposing cost.

https://www.mhc.tn.gov.in/judis C.M.A.No.1568 of 2019

6. In the result, this Civil Miscellaneous Appeal stands allowed on

payment of cost of Rs.10,000/- (Rupees ten thousand only) to the

respondent/plaintiff within a period of two weeks from the date of receipt of a

copy of this judgment, failing which this appeal stands dismissed

automatically. The learned Principal District Judge, Puducherry, is directed

to dispose of the suit as expeditiously as possible and preferably with a period

of three months from the date of receipt of a copy of this judgment.

Consequently, connected miscellaneous petition is closed.

31.01.2022

uma Index : Yes/No Speaking Order: Yes/No

To

The Principal District Judge, Puducherry

https://www.mhc.tn.gov.in/judis C.M.A.No.1568 of 2019

A.A.NAKKIRAN,J.

uma

Pre-delivery Judgment in

C.M.A.No.1568 of 2019 and C.M.P No.4467 of 2019

31.01.2022

https://www.mhc.tn.gov.in/judis