Madras High Court
Duraisamy vs Aravindh on 4 January, 2024
C.R.P.(PD).No.2569 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(PD).No.2569 of 2021
and CMP.No.19089 of 2021
Duraisamy ... Petitioner
vs.
1.Aravindh
2.Anusia
[Palaiammal (died)]
W/o.Kumarasamy Gounder
3.Dhanalakshmi
... Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the fair and decreetal order dated 23.08.2021 made
in I.A.No.675 of 2021 in O.S.No.141 of 2008 on the file of the District
Munsif, Dharapuram by allowing this Civil Revision Petition.
For Petitioner : Mr.N.Ponraj
For Respondents :Mr.V.Kadhirvelu for R3
No Appearance for R1 and R2
1/8
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2569 of 2021
ORDER
This Civil Revision Petition is filed challenging the order passed
by the Court below dismissing the application filed by the petitioner under
Order 9 Rule 7 of CPC, seeking to set aside the ex-parte order passed against
him dated 12.06.2008.
2. The respondents 1 and 2 filed a suit seeking partition of 2/9 th
share in the suit property. The petitioner who was arrayed as first defendant
in the suit was set ex-parte on 12.06.2008. When the suit was posted for
arguments, the petitioner herein filed the instant application seeking to set
aside the ex-parte order passed against him. In the affidavit filed in support of
the application, it was averred by him that on 12.06.2008, he was suffering
from high fever and bed ridden. Therefore, he failed to contact his counsel
and file his vakalat. The said application was opposed by the 3 rd respondent
on the ground that the application filed by the petitioner seeking to set aside
the ex-parte order after 13 years is barred by limitation and the reason
assigned by him for his failure to appear before the Court was not proved.
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3. The application was dismissed by the Court below mainly on
the ground that the petition filed to set aside the ex-parte order after 13 years
is barred by limitation by applying Article 137 of the Limitation Act. The
learned Judge relied on the judgment of this Court in Visalakshi Vs.
Umapathy reported in 2015 (5) CTC 67.
4. The learned counsel appearing for the petitioner submitted
that the law laid down in Visalakshi Vs. Umapathy reported in 2015 (5) CTC
67, was later held to be not good law in Rajasekar Vs. Govindammal (Late)
1.Dhavamani reported in 2020 (6) CTC 724. The learned counsel further
submitted that there is no limitation for filing petition to set aside the ex-parte
decree and the same can be filed at any time before delivery of the judgment.
5. The learned counsel appearing for the 3rd respondent
vehemently contended that the petitioner failed to give any acceptable reason
for his failure to appear for nearly 13 years and therefore, the Court below is
justified in dismissing the application.
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6. This Court in Rajasekar Vs. Govindammal (Late)
1.Dhavamani reported in 2020 (6) CTC 724 held that Article 137 of
Limitation Act will not be applied to the application under Order 9 Rule 7 of
CPC and the said application can be filed at any time before the delivery of
judgment in the suit. The relevant observation of this Court, in this regard
reads as follows:
I therefore, find that those judgments, viz., the
judgment in Visalakshi Vs. Umapathy reported in 2015 (5)
CTC 67, judgment in G.Krishnasamy Vs. G.Seenivasan and
another, CRP (MD).No.2819 of 2018 (PD), dated 04.06.2019,
judgment in Ramdoss Vs. Mohan and others, CRP (PD)
No.2412 of 2016, dated 23.08.2016. cannot be held to be
good law, inasmuch as, they are in conflict with the decisions
of the Hon'ble Supreme Court in Sangram Singh Vs. Election
Tribunal, Kotah and others, AIR 1955 SC 425 and Arjun
Singh Vs. Mohindra Kumar and others, AIT 1964 SC 993.
For the foregoing reasons, I conclude that Article 137 of the
Limitation Act, does not apply to an Application under Order
9, Rule 7 of the Code of Civil Procedure and the same can be
filed at any time before the judgment is delivered in the suit or
proceedings.
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7. Since the law laid down by this Court in Rajasekar Vs.
Govindammal (Late) 1.Dhavamani reported in 2020 (6) CTC 724 is based
on earlier Supreme Court judgment, I prefer to follow the same.
Accordingly, I hold that there is no limitation for filing application under
Order 9 Rule 7 of CPC to set aside the ex-parte order. The said application
can be filed at any time before the delivery of the judgment. Order 9 Rule 7
of CPC, reads as follows:
“7. Procedure where defendant appears on day of
adjourned hearing and assigns good cause for previous
non-appearance:- Where the Court has adjourned the
hearing of the suit ex-parte, and the defendant, at or
before such hearing, appears and assigns good cause for
his previous non-appearance, he may, upon such terms as
the Court directs as to costs or otherwise, be heard in
answer to the suit as if he had appeared on the day fixed
for his appearance.”
8. A reading of the above provision would make it clear that the
person who failed to appear before the Court on particular day, subsequently,
on his satisfying the Court by showing good cause, can be allowed as answer
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the suit as if he had appeared on the day fixed for his appearance. Therefore,
at every subsequent hearings, he gets a new cause of action to file a petition to
set aside ex-parte order, by showing good cause for his previous
non-appearance. It is a continuing cause of action till suit is reserved for
judgment or judgment is delivered. Hence, question of limitation to file
petition to set aside ex-parte order will not arise as cause of action is
continuing one. Further, the person who failed to appear on a particular day
need not show sufficient cause as mentioned in Order 9 Rule 13 CPC. If he
is able to show good cause the Court can set aside exparte order against him.
In the case on hand, the petitioner in the affidavit filed in support of the
application to set aside the ex-parte order had averred that he was suffering
from high fever and bed ridden and therefore, he failed to contact his counsel
and file his vakalat. The Court shall take a liberal approach, while
interpreting the procedural and law. Having regard to the fact that the suit is
for partition between close relatives, this Court is inclined to take a liberal
approach and allow the application filed to set aside the ex-parte order. Since
the application is filed after a long delay that too when the suit was posted for
arguments, this Court is inclined to impose heavy costs on the petitioner.
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9. Accordingly, the Civil Revision Petition is allowed by setting
aside the order passed by the Court below on condition that the petitioner
shall pay a sum of Rs.15,000/- to the 3rd respondent/3rd defendant, who
contested this Civil Revision Petition by engaging the counsel. The said
payment shall be made within a period of four weeks from today, failing
which, the Civil Revision Petition shall stand automatically dismissed without
further reference to the Court. In case, the petitioner complied with the
condition, the Civil Revision Petition is allowed by setting aside the impugned
order. The petitioner is directed to file his written statement within a period of
eight weeks from today and the Court below is directed to dispose of the suit
as expeditiously as possible.
10. Accordingly, this Civil Revision Petition is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
04.01.2024
Index : Yes / No
Speaking order : Yes / No
Neutral Citation : Yes / No
ub
Note:Issue order copy on 09.01.2024.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
ub
To
The District Munsif, Dharapuram.
04.01.2024
https://www.mhc.tn.gov.in/judis
