Madras High Court
N.Kulanthaisamy vs R.Boopathy on 31 March, 2023
C.R.P(MD)No.1060 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.1060 of 2022
N.Kulanthaisamy ... Petitioner/ Petitioner/
Defendant
Vs.
R.Boopathy ... Respondent/ Respondent/
Plaintiff
PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C, to
set aside the Fair and Decreetal order passed in I.A.No.1 of 2021 in
O.S.No.211 of 2017 dated 22.02.2022 on the file of the Principal Sub
Court, Karur.
For Petitioner : Mr.N.Subramani
For Mr.V.Illanchezian
For Respondent : Mr.E.K.Kumaresan
ORDER
The present Civil Revision Petition has been filed against the fair
and decreetal order in I.A.No.1 of 2021 in O.S.No.211 of 2017, dated
22.02.2022 on the file of the Principal Sub Court, Karur.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
2. By the impugned order, dated 22.02.2022, the Principal Sub
Court, Karur has dismissed I.A.No.1 of 2021 in O.S.No.211 of 2017 filed
by the petitioner. I.A.No.1 of 2021 in O.S.No.211 of 2017 was filed to
condone a delay of 309 days in filing application to set aside the order,
dated 04.03.2019.
3. The relevant portion of the impugned order reads as under:
5.jPh;T
,Ujug;gpw;Fk; Nfl;if ey;fg;gl;lJ. vjph;kDjhuh;
mry; tof;fpy; thjp Nkw;gb mry; tof;fhdJ
kDjhuhplkpUe;J njhifia tug;gw;Wtjw;fhf
thjpahy; jhf;fy; nra;ag;gl;bUe;jJ vd;gJ tof;Ff;
Nfhg;gpd; mwpe;jikfspy; ,Ue;J ,e;ePjpkd;wj;jpw;F
njhpa tUfpwJ. ,j;jUzj;jpy; kDjhuh; fle;j
04.03.2019k; Njjp mry; tof;fpy; vjph;tof;Fiu jhf;fy;
nra;tjw;fhf tha;jh Vw;gl;bUe;j epiyapy; Kf;fpakhd
Mtzq;fis kpFe;j rpukj;jpw;Fg; gpd;dpl;L NjbAk;
fpilf;fhjjhy; vjph;tof;Fiu jhf;fy; nra;atpy;iy
vd;Wk;> MfNt fle;j 04.03.2019k; Njjp kDjhuh;
xUjiyg;gl;rg;gLj;jg;gl;L cj;juT toq;fg;gl;ljhf
kDtpy; njhptpf;fg;gl;Ls;sJ. tof;Ff; Nfhg;gpd;
mwpe;jikfspy; jtwhd rq;fjpahf cs;sJ.
Vndd;why;> kDjhuh; fle;j 02.11.2018k; NjjpNa 90
ehl;fs; Kbe;Jk; vjph;tof;Fiu jhf;fy; nra;ahjjhy;
mth; xUjiyg;gl;rg;gLj;jg;gl;L cj;juT
Vw;gl;bUf;fpwJ. gpd;dpl;L jhd; ,Wjpahf fle;j
04.03.2019k; Njjp mry; tof;fpy; jPh;g;Giu
toq;fg;gl;bUf;fpwJ. Mdhy; ,e;j tptuq;fs; $l
njhpahky; kDjhuh; ,k;kDit ngha;ahd
fhuzq;fspd; mbg;gilapy; jhf;fy;
nra;jpUf;fpwhh;. ,j;jUzj;jpy; thd;Gfo; ts;Sth;
jpUf;Fwspy; tha;ik vDk; mjpfhuj;jpy; Fws; 293y;
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
jd;neQ;R mwptJ ngha;aw;f ngha;j;jgpd;
jd;neQ;R jd;idr; RLk;.
vd;w Fws; thpfis kpfTk; ,uq;fj; jf;f tifapy;
Nkw;gb kDjhuh; filgpbf;fj; jtwp tpl;lhh;. MfNt
Nkw;gb kDjhuhpd; gpukhd thf;F%yj;ij ,e;ePjpkd;wk;
epuhfhpf;fpwJ.
6. NkYk;> fle;j 02.11.2018k; Njjp kDjhuh; mry;
tof;fpy; vjphtof;Fiu jhf;fy; nra;ahjjw;F vt;tpj
tpsf;fKk; fhuzKk; kDjhuh; kDtpy; ,y;iy.
MfNt vt;tpj fhuzKk; ,d;wp Nkw;gb cj;juit
uj;J nra;a KbahJ. NkYk; kDjhuUf;F cly;epiy
rhpapy;iy vd;gJk; ve;j Mtz rhl;rpaKk; kDjhuhpd;
gpukhz thf;F%yj;ijj; jtpu NtW tha;nkhop
rhl;rpak; ,y;iy.
7. NkYk;> kDjhuh; jug;gpy; thjpl;l fw;wwpe;j
tof;fwpQh; jdJ thjj;jpy; mry; tof;fpy; jFjpapd;
mbg;gilapy; kDjhuUf;F tha;gg ; spg;gjw;fhf kDit
mDkjpf;f Ntz;Lk; vd;W thjpl;lhh;. Mdhy;
fhytiuaiwr;rl;lj;jpd; gb vjph;kDjhuUf;F
rl;lg;gbahd vjph;thjk; fpilj;Js;s epiyapy; mry;
tof;if jFjpapd; mbg;gilapy; elj;j Ntz;Lk;
vd;gjw;fhf Nkw;gb vjph;thjj;ij
epuhfhpf;f ,ayhJ. ,J Fwpj;J 1193 (2) Civil LJ 321
Fotolite Colour Labs Vs M/s.Aver Foto Print System vd;w
jPh;Kbtpy; fPo;fz;lthW Rl;bf;fhl;lg;gl;Ls;sJ.
'Thus, it is evident from the above decision
that if the court is not satisfied with the reasons
stated, it should reject the application.
Undoubtedly, in case on hand, there is a
categorical finding by the Court below that the
respondents-defendants received notices and they
have not explained sufficient reasons which
prevented them from making their appearance and
contesting the matter. This being the finding, the
order of the Court below, allowing the application
under Section 5 of the Limitation Act, would be
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
amounting to material irregularity committed
within the meaning of Clause (c) of Section 115
C.P.C.'
NkYk;> tof;fpw;fhd fhytiuaiw eph;zak;
nra;tJ nghJ ed;ikf;fhf nghJ nfhs;ifapd;
mbg;gilapy; nra;ag;gl;Ls;sJ. vdNt tof;fpd;
jug;gpdh;fs; fhytiuaiwr;rl;lk; mspj;Js;s
fhytiuaiwf;Fs; tof;if fhyjhkjg;gLj;Jk;
Nehf;fkpd;wp jq;fsJ rl;l chpikfis ngw;Wf;nfhs;s
Ntz;Lk;. NkYk; rl;lkhdJ topg;Gzh;G
cs;sth;fSf;Nf Jizahf ,Uf;Fk;.
Mdhy; ,t;tof;if nghWj;j tiuapy; tof;if
elj;Jtjpy; kDjhuh; ftdkpd;ikahf ,Ue;Js;s
epiyapy; ,k;kD mDkjpf;fj;jf;fjy;y vd;W
fUJfpNwd;.
8. ,J Fwpj;J ekJ khz;GkpF
cr;rePjpkd;wj;jhy; toq;fg;gl;l 2008 5 CTC 663 vd;w
jPh; Kbtpy; fz;lthW Rl;bf;fhl;lg;gl;Ls;sJ.
Pundlik Jalam Patil (D) by Lrs Vs Exe.Jalgaon
Medium Project and another
"Statutes of limitation are sometimes described as
`statutes of peace'. An unlimited and perpetual threat
of limitation creates insecurity and uncertainty; some
kind of limitation is essential for public order. This
court in Rajender Singh and others vs. Santa Singh
and others [(1973) 2 SCC 705] has observed : "the
object of law of Limitation is to prevent disturbance
and deprivation of what may have been acquired in
equity and justice by long enjoyment or what may have
been lost by a party's own inaction, negligence or
laches". In Motichand vs. Munshi [(1969) 2 SCR 824],
this court observed that this principle is based on the
maxim "interest republicae ut sit finis litum, that is,
the interest of the State requires that there should be
end to litigation but at the same time law of Limitation
are a means to ensuring private justice suppressing
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
fraud and perjury, quickening diligence and
preventing oppression."
"It needs no restatement at our hands that the object
for fixing time limit for litigation is based on public
policy fixing a life span for legal remedy for the
purpose of general welfare. They are meant to see that
the parties do not resort to dilatory tactics but avail
their legal remedies promptly. Salmond in his
jurisprudence states that the laws come to the
assistance of the vigilant and not of the sleepy."
9. NkYk;> ekJ khz;GkpF nrd;id
cah;ePjkd;wj;jhy; toq;fg;gl;l 2009 (3) MLJ 782 vd;w
jPh;Kbtpy; fPo;fzlthW Rl;bf;fhl;lg;gl;Ls;sJ.
'C.Raghupathy Vs C.Govindan and others
It is also well settled that the question of
limitation is not merely a technical consideration
but based on principles of sound public policy as
well as equity and that a victorious litigant cannot
be expected to remain disgruntled indefinitely for a
period to be determined at the whims and fancies
of the opponent.'
10. vdNt kDjhuh; js;Sgbahd tof;if
kPz;Lk; Nfhg;gpy; vLf;f kD nra;tjpy; Vw;gl;l 309
ehl;fs; fhyjhkj;jpw;F NghJkhd fhuzq;fs; $wp
ep&g;gpf;fhj epiyapy; ngha;ahd fhuzq;fspd;
mbg;gilapy; ,k;kDit jhf;fy;
nra;jpUg;gjhy; ,k;kDtpy; vt;tpj el;$WfSk; ,y;iy
vd;W ,e;ePjpkd;wk; KbT fhz;fpwJ.
11. MfNt> ,Wjpahf kDjhuhpd; ,k;kDit
js;Sgb nra;J cj;jutplg;gLfpwJ. nryTj;
njhif ,y;iy.
4. The petitioner is the sole defendant before the trial Court in
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
O.S.No.211 of 2017. The suit was filed by the respondent/palintiff to
recover a sum of Rs.5,00,000/- based on the promissory note, which is
said to have been executed by the petitioner.
5. It appears that the petitioner entered appearance before the Trial
Court but failed to file a written statement. Therefore, the petitioner was
set ex parte on 23.06.2017. According to the learned counsel for the
respondent/plaintiff, order dated 23.06.2017 was set aside on terms and a
fresh opportunity is given to the petitioner to file a written statement.
However, the petitioner failed to avail the opportunity and was negligent
and thus, the petitioner was set ex parte once again on 20.11.2018.
6. Thereafter, the Trial Court has proceeded to pass an ex parte
decree on 04.03.2019. The ex parte judgment and decree appears to be a
reasoned judgment on merits and decree and was based on the available
records that were filed by the respondent/plaintiff before the trial Court.
The respondent/plaintiff had also examined witness on behalf of the
respondent/plaintiff.
7. The petitioner has thereafter filed I.A.No.1 of 2021 at the stage
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
when execution of decree for attaching the property of the
petitioner/defendant to recover the decreed amount. The Trial Court by
the impugned fair and decreetal order, dated 22.02.2022 in I.A.No.1 of
2021 in the above suit in O.S.No.211 of 2017 has dismissed the
application filed by the petitioner to set aside the ex parte decree. The
Court has come to a conclusion that the petitioner has not explained the
delay of 309 days to file an application for setting aside the ex parte
decree, dated 04.03.2019 properly and therefore, the application filed for
condoning the delay was liable to be dismissed.
8. Today, when the case was taken up for hearing, the learned
counsel for the petitioner submits that the petitioner is willing to deposit
the entire amount of Rs.5,00,000/- as was decreed before the trial Court.
Therefore, he prays that the impugned order be set aside and a fresh
opportunity be given to the petitioner to workout the remedy as the suit
was filed without any documents and that the respondent/plaintiff has
actually failed to prove that the amount was due for the
petitioner/defendant.
9. On the other hand, the learned counsel for the respondent
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
submit that the impugned order passed by the Principal Sub Court, Karur
on 22.02.2022 in I.A.No.1 of 2022 in O.S.No.211 of 2017 was well
reasoned and requires no interference.
10. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent.
11. No doubt, the petitioner was negligent in not filing written
statement in time thereby allowed the suit to be decreed ex parte on
04.03.2019. The petitioner had also not taken any steps to set aside the
ex parte decree in time. Instead, waited for the respondent/plaintiff to
initiate execution proceedings to recover the decreed amount. It is only
thereafter I.A.No.1 of 2021 was filed by the petitioner. While the
petitioner has not given sufficient grounds for condoning the delay, the
Court is however inclined to allow this Civil Revision Petition subject to
terms:
The petitioner shall deposit the entire decree amount before the
Principal Sub Court, Karur within a period of 8 weeks from the date of
receipt of copy of this order. The petitioner shall also pay a cost of
Rs.25,000/- to the respondent/plaintiff. On such compliance, the
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
Principal Sub Court, Karur shall accept written statment and thereafter,
proceed to frame issues and proceed with trial. Subject to such
compliance, the attachment order shall stand vacated. The Principal Sub
Court, Karur thereafter complete the trial and dispose of the suit as
expeditiously as possible preferably within a period of 9 months from the
date of receipt of copy of this order.
12. The present Civil Revision Petition stands allowed with the
abvoe observations. No costs.
31.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The Principal Sub Court, Karur.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
C.SARAVANAN,J.
SN
C.R.P(MD)No.1060 of 2022
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1060 of 2022
31.03.2023
https://www.mhc.tn.gov.in/judis
