Madras High Court
Palaniammal vs Selvi on 22 August, 2023
2023:MHC:3927
A.S.No.186 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :22.08.2023
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
A.S.No.186 of 2023
and CMP.No.7522 of 2023
Palaniammal ... Appellant/defendant
Vs.
Selvi ... Respondent/plaintiff
Prayer: First Appeal filed under Section 96 of Civil Procedure Code., against
the judgement and decree in O.S.No.102 of 2021, on the file of III Additional
District Judge, Kallakurichi, dated 26.09.2022.
For Petitioner : Mrs.R.Poornima
For Respondent : Mr.N.Gnanalingam
Government Advocate (Crl.Side)
ORDER
This First Appeal has been filed by the appellant/defendant who suffered
the judgement and decree in a money suit.
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A.S.No.186 of 2023
2. The brief facts of the case before the trial Court is as follows:
(a) The case of the plaintiff is that the defendant had borrowed an amount
of Rs.10,00,000/- and executed a pro-note on 07.12.2018, agreeing to pay
interest at the rate of 9 percent per annum. Since the defendant did not repay the
amount, the plaintiff had sent legal notice through an advocate on 12.10.2021
and the defendant has given reply to the said notice on 19.12.2021, with false
averments. Since the defendant has not paid the amount, the plaintiff had filed a
money suit for recovery of amount of Rs.12,63,000/- with further interest at the
rate of 9 percent.
(b) The suit in O.S.No.101 of 2021 was taken up on the file of the 3rd
Additional District Judge, Kallakurichi. Since the defendant did not file the
written statement, she was set ex-parte. Subsequently, she had filed I.A.No.128
of 2022, seeking to set aside the ex-parte order and that the trial Court had
passed a conditional order directing the defendant to pay an amount of
Rs.4,000/- to the District Legal Services Authority. However since the
conditional order was not complied with, a decree was passed. Against the
judgement and decree, this appeal has been filed.
3. The learned counsel for the appellant/defendant would submit that the
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A.S.No.186 of 2023
appellant was set ex-parte and later she filed a petition to set aside the ex-
parte order and a conditional order was passed in I.A.No.128 of 2022 and since
she was suffering from diabetes, she was unable to comply with the conditional
order. Therefore, she had filed an application for extension of time. However,
the trial Court had refused to accept the same. Against which, the appellant had
filed CRP.No.3523 of 2022 and while the CRP was pending before the Court,
the trial Court had passed ex-parte judgement and decree. He would further
submit that the appellant was not given an opportunity to defend the case and
thereby, the present appeal has been filed.
4. The learned counsel for the respondent/plaintiff would submit that he
has no objection in the appeal being allowed and the matter being remitted back
to the trial Court for consideration of the suit on merits. He would submit that a
time frame may be fixed to complete the trial.
5. Heard the learned counsel for the appellant and learned counsel for the
respondent.
6. The only point to be determined in this appeal is as to whether the
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A.S.No.186 of 2023
appeal suit has to be allowed or not?
7. A perusal of the records shows that no sufficient opportunity has been
given to the appellant/defendant to defend her case before the trial Court which
is also fairly conceded by the learned counsel for the respondent and he also
has no objection in the appeal being allowed and the matter being remitted to
the trial Court for consideration of the suit on merits.
8. In view of the above, the ex-parte judgment and decree passed in
O.S.No.102 of 2021 dated 26.09.2022 by the III Additional District Judge,
Kallakurichi, is set aside and the appeal suit stands allowed and O.S.No.102 of
2021 is remanded back to the trial Court for consideration on merits, after
affording sufficient opportunity to both sides. The trial Court is also directed to
complete the trial in O.S.No.102 of 2021 as expeditiously as possible,
preferably within a period of three months from the date of receipt of a copy of
this order. No costs. Consequently, connected miscellaneous petition is closed.
22.08.2023
Internet : Yes/No
https://www.mhc.tn.gov.in/judis
A.S.No.186 of 2023
mpa
A.D.JAGADISH CHANDIRA, J.
mpa
To
1.The III Additional District Judge, Kallakurichi.
2.The Public Prosecutor,
High Court, Madras.
A.S.No.186 of 2023
and CMP.No.7522 of 2023
https://www.mhc.tn.gov.in/judis
A.S.No.186 of 2023
22.08.2023
https://www.mhc.tn.gov.in/judis
