Balamurugan vs Mohana Sundaravel
2023 Latest Caselaw 4698 Mad

                                                                                      C.M.A.(MD)No.183 of 2023


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 24.04.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                               C.M.A.(MD)No.183 of 2023
                                                         and
                                               C.M.P.(MD)No.1918 of 2023



                Balamurugan                                                   ... Appellant

                                                          Vs.

                Mohana Sundaravel                                             .. Respondent



                PRAYER: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(d) of
                C.P.C., against the order passed in I.A.No.12 of 2022 in O.S.No.18 of 2019 dated
                20.10.2022 on the file of the Principal District Court, Tirunelveli.


                                        For Appellant           : Mr.K.Rajeshwaran
                                        For Respondent          : Mr.S.Mani




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https://www.mhc.tn.gov.in/judis
                                                                                     C.M.A.(MD)No.183 of 2023




                                                         JUDGMENT

This Civil Miscellaneous Appeal has been filed challenging the order

passed by the learned Principal District Judge, Tirunelveli, in I.A.No.12 of 2022 in

O.S.No.18 of 2019, dated 20.10.2022, rejecting the application filed under Order

9 Rule 13 of C.P.C. to set aside the ex parte decree passed against the appellant.

2. The brief facts, leading to the filing of this Civil Miscellaneous

Appeal, are as follows:-

The respondent has filed a suit in O.S.No.18 of 2019 against the

appellant for recovery of a sum of Rs.86,03,033/- based on the pro-notes said to

have been executed by the appellant. The defence set up by the appellant in the

written statement that he has handed over the unfilled pro-notes and cheques as a

guarantor to help the plaintiff. The plaintiff was examined originally on

03.01.2020 and the matter has been posted on 09.01.2020, 13.01.2020,

21.01.2020, 28.01.2020 and 31.01.2020 for cross examination by the appellant.

However, there was no representation on the side of the appellant. Again, the

matter has been adjourned to 08.12.2020, 16.12.2020 and again on 22.12.2020, the

appellant has filed an application to adjourn the case to some other date. Based on

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.183 of 2023

the said application, the matter has been adjourned to 06.01.2021. On 06.01.2021,

the appellant called absent and set ex parte. Thereafter, decree has been passed,

based on the evidence of P.W.1, on 15.03.2021. Hence, the appellant has filed an

application to set aside the ex parte decree. However, the same has been rejected

by the trial Court. Challenging the same, the present appeal came to be filed.

3. It is the main contention of the learned counsel appearing for the

appellant that due to Covid-19 Pandemic, he was unable to appear before the trial

Court. It is his further contention that he is ready to co-operate with the trial and if

any date is fixed by this Court, within the said period, he will co-operate to

complete the trial. Therefore, he prays for allowing of the application to set aside

the ex parte decree passed against the appellant, on payment of some reasonable

costs.

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

the appellant has dragged the proceedings unnecessarily only in order to delay the

trial. Hence, opposed this Appeal.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.183 of 2023

5. In the light of the above submissions, now the point arise for

consideration in this appeal is whether the appellant has shown sufficient cause of

setting aside the ex parte decree passed against him.

6. On a perusal records, it is seen that suit has been filed for recovery of

a sum of Rs.86,03,033/- on different pro-notes. It is the contention of the learned

counsel appearing for the appellant that the appellant has signed the unfilled pro-

notes and handed over the same to the respondent only as guarantor to help him

out of the clutches of money lender. Be that as it may. As the ex parte decree has

been passed merely on the basis of the evidence of P.W.1 and though several

adjournments have been granted, the appellant took it very causally and the trial

Court granted ex parte decree, this Court, considering the nature of the relief

sought in the plaint and the nature of the defence, is of the view that one more

opportunity can be given to the appellant to agitate his rights on merits.

7. In the result, this Civil Miscellaneous Appeal is allowed and the order

passed by the learned Principal District Judge, Tirunelveli, I.A.No.12 of 2022 in

O.S.No.18 of 2019, dated 20.10.2022 is set aside, subject to the condition that the

appellant is directed to pay a sum of Rs.25,000/- (Rupees Twenty Five thousand

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.183 of 2023

only) as costs to the respondent on or before 15.05.2023, failing which, this Civil

Miscellaneous Appeal stands dismissed automatically without any further

reference to this Court. After making the payment, the appellant is directed to

file a memo before the trial Court and thereafter, the trial Court shall decided the

matter within a period of four months. The learned counsel appearing for the

appellant assured before this Court that the appellant will co-operate with the trial

and conclude the matter within four months. The trial Court shall make every

endeavor to post the matter on the day- to-day basis and dispose of the suit within

a period of four months from the month of July 2023, not later than 30.09.2023.

Consequently, connected miscellaneous petition is closed.

24.04.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No

vsm

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.183 of 2023

N.SATHISH KUMAR, J.

vsm

To

1.The Principal District Court, Tirunelveli.

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

C.M.A.(MD)No.183 of 2023

24.04.2023

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