Madras High Court
M.Saravanan vs N.Ponnurangam on 8 November, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
CRP.Nos.2088, 2089 & 2091 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.R.P.Nos.2088, 2089 & 2091 of 2024
and C.M.P.Nos.11163 to 11165 of 2024
M.Saravanan .. Petitioner in all CRPs
Versus
N.Ponnurangam .. Respondents in all CRPs
Common Prayer:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order and decretal orders dated
27.03.2024 passed by the learned XXII Assistant Judge, City Civil Court,
Chennai in I.A.Nos.3, 1 and 2 of 2024 in O.S.No.5014/2021.
In all CRPs
For Petitioner : Mr.N.Sivaprakash
For Respondent : Mrs.T.Jayanthi
COMMON ORDER
C.R.P.No.2088 of 2024 has been filed challenging the order of the
dismissal in I.A.No.3 of 2024 filed for grant of unconditional leave to
defend the suit in O.S.No.5014 of 2022.
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1.b. C.R.P.No.2089 of 2024 has been filed challenging the order of
the dismissal in I.A.No.1 of 2024 filed to condone the delay of 348 days in
filing the application for setting aside the exparte order dated 05.01.2023
passed in the above suit.
1.c. C.R.P.No.2091 of 2024 has been filed challenging the order of the
dismissal in I.A.No.2 of 2024 filed to set aside the exparte order dated
05.01.2023 passed in the above suit.
2. The brief background of the case is as follows:
2.a. The respondent has filed a suit for recovery of a sum of
Rs.4,00,000/- together with interest @ 24% p.a., According to the
respondent, the petitioner approached him for a hand-loan for running his
travel business and has executed a promissory note. After several request,
the defendant/revision petitioner has issued a cheque on 27.04.2022
bearing No.000002 drawn on the UCO Bank, Pallikaranai Branch in
favour of the plaintiff. When the cheque was presented for encashment on
28.04.2022, the same was returned with a memo stating "Insufficient
Funds". Hence, legal notice was issued by the plaintiff on 23.05.2022 for
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CRP.Nos.2088, 2089 & 2091 of 2024
repayment of the borrowed amount and filed a suit. The suit was decreed
exparte on 05.01.2023. Hence, the above applications were filed before the
Trial Court and the same were dismissed. Challenging the same, these
revisions.
3. It is the contention of the revision petitioner in the application that
there is no privity of contract between the plaintiff and the defendant. The
petitioner's father in law, late S.Peter Devadoss had borrowed a sum of
Rs.7 lakhs from one Mr.Singaram, advocate and the said Singaram had
obtained 6 cheques. Since, the petitioner's father in law was unable to repay
the amount, an unregistered sale deed was executed by the petitioner's
father in law. In the same deed, as per the instructions of the said
Singaram, the sale amount was shown as Rs.12,75,000/- in the document
so that the income tax problem and stamp duty can be avoided, but assured
that Rs.14,00,000/- will be paid to the petitioner's father in law and handed
over the unfilled cheques. Thereafter, Singaram paid Rs.8,00,000/- and the
balance amount of Rs.6,00,000/- has to be paid, however, the same has not
been paid. Therefore, petitioner's father in law lodged a complaint before
the Commissioner of Police, Vepery. In order to take revenge, the said
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CRP.Nos.2088, 2089 & 2091 of 2024
Singaram had set up one Venkatesan and filed a suit as against the
petitioner's father in law. Thereafter, the present suit has been filed by the
plaintiff who is set up by Mr.Singaram. According to the petitioner, there is
no privity of contract. He has contended that though the summons in the
above case had been served to the petitioner due to the sudden death of the
petitioner's father in law, he had to take up the responsibility of the entire
final rituals and family commitments. Therefore, he had handed over the
summons in the above suit to one Dinesh Kumar to appear on the
petitioner's behalf. Thereafter, Mr.Singaram met the petitioner and assured
that he would inform the plaintiff to withdraw the suit. Hence, the
petitioner was under the fond hope that the above suit will be withdrawn.
However, the petitioner received a notice in E.P.No.3371 of 2023.
Therefore, there was a delay of 348 days in filing the application for setting
aside the exparte order.
4. Counter has been filed by the respondent denying the entire
allegations and submitted that the amount has been received by the
petitioner/defendant for purchase of vehicle for his travel business and
promised to re-pay with interest @ 24% pa and had executed a promissory
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CRP.Nos.2088, 2089 & 2091 of 2024
note. Upon several requests, the defendant/revision petitioner has issued a
cheque, on presentation, the same was dishonoured. Hence, the present
suit. Since the petitioner did not appear before the Trial Court, the suit was
decreed exparte. The revision petitioner filed applications before the Trial
Court to setting aside the exparte order, for condoning the delay in filing
the application for setting aside the exparte order and leave to defend the
suit. The Trial Court vide the impugned orders, dismissed the applications.
Challenging the same, these revisions.
5. The learned counsel for the revision petitioner submitted that
summons has been served on the petitioner since his father in law died due
to the sudden death. He was in charge of the entire family affairs and
entrusted the vakalat to one Dinesh Kumar. Thereafter, Mr.Singaram met
the petitioner and assured that he would inform the plaintiff to withdraw
the suit. Hence, the petitioner was under the fond hope that the above suit
will be withdrawn. However, the same has not been withdrawn. According
to him, even at the time of filing the revisions, he had already deposited
25% of the suit claim before the Trial Court, i.e., Rs.2,05,984/-. Hence,
submitted, the delay has to be condoned by giving a liberal approach.
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6. Whereas, the learned counsel for the respondent submitted that the
revision as against the dismissal of the exparte order is not maintainable
and the delay has not been properly explained. In support of his
submissions, he also placed reliance upon the judgment of the Hon'ble
Supreme Court dated 01.12.2023 made in SLP.No.5489 of 2021 in the
case of the Koushik Mutually Aided Cooperative Housing Society vs.
Ammena Begum and another, wherein, the Hon'ble Apex Court has held as
follows:
" 15. Against the order passed under Order IX Rule 13
CPC rejecting an application for seeking setting aside the
decree passed ex-parte, an appeal is provided. When an
application is filed seeking condonation of delay for seeking
setting aside an ex-parte decree and the same is dismissed
and consequently, the petition is also dismissed, the appeal
under Order XLIII Rule 1(d) CPC is maintainable. Thus, an
appeal only against the refusal to set aside the ex-parte
decree is maintainable whereas if an order allowing such an
application is passed, the same is not appealable.
16. Thus, when an application or petition filed under
Order IX Rule 13 CPC is dismissed, the defendant can avail
a remedy by preferring an appeal in terms of Order XLIII
Rule 1 CPC. Thus, Civil Revision Petition under Section 115
of the CPC would not arise when an application/petition
under Order IX Rule 13 CPC is dismissed. Thus, when an
alternative and effective appellate remedy is available to a
defendant, against an ex-parte decree, it would not be
appropriate for the defendant to resort to filing of revision
under Section 115 of the CPC challenging the order refusing
to set aside the order of setting the defendant ex-parte. In
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view of the appellate remedy under Order XLIII Rule 1(d)
CPC being available, revision under Section 115 of the CPC
filed in the instant case was not maintainable.
7. Heard both sides and perused the materials placed on record.
8. With regard to the delay in filing the application to set aside the
exparte order is concerned, the petitioner has pleaded that there was no
privity of contract with the respondent and it is the further contention that
due to the death of his father in law, as he did all the rituals, he handed
over the case bundle and Vakalat to one Dinesh Kumar and further,
Singaram with whom the main transaction has taken place had informed
that the suit will be withdrawn by the respondent/plaintiff, however, the
same was not withdrawn. Upon notice in the Execution Petition, the
petitioner immediately filed the applications.
9. Though the Trial Court found that the petitioner's father in law died
on 15.10.2021 and the suit summons was served upon the revision
petitioner on 28.09.2022, this Court is of the view that while considering
the application under Section 5 of the Limitation Act, the Court has to keep
in mind the expression "sufficient cause" must receive a liberal construction
so as to advance substantial justice and general delays be condoned in the
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interest of justice and particularly when the length of delay is not so huge
and explanatory reasons has been given. In the absence of anything
showing malafide or deliberate delay as a dilatory tactics, the Court should
lean in favour of the substantial justice by condoning the delay. The delay
in this case is only 348 days in filing the application to set aside the exparte
order. The revision petitioner as directed by this Court has also deposited
25% of the suit claim before the Trial Court, i.e., Rs.2,05,984/-. Therefore,
as there was no materials produced on record to show that there were
delaying tactics adopted by the petitioner. Though the petitioner was not
vigilant in appearing on time before the Court, the same cannot be put
against him to take away his substantial right to defence.
10. Considering the nature of the pleadings, this Court is of the view
that one more opportunity may be given to the petitioner to put forth his
defence, since, he has already deposited a part of the suit amount before the
Trial Court. Hence, the order dismissing the application I.A.No.1 of 2024
filed to condone the delay in filing the petition to set aside the exparte order
is hereby set aside.
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11. As far as the revision against the order dismissing the petition filed
to set aside the exparte order is concerned, it is relevant to note that
application in I.A.No.2 of 2024 has not been dismissed, it has been closed.
The order in I.A.No.2 of 2024 dated 27.03.2024 reads as follows:
... This petitioner is filed by the petitioner/defendant under
Order XXXVII, Rule 4 of CPC to set aside the ex-parte
decree passed in O.S.No.5014 of 2022 dated 05.01.2023.
Petition to condone delay in I.A.No.1 of 2024. Hence, this
petitioner is hereby closed."
12. Similarly, revision against the order dismissing the application
filed seeking leave to defend the suit is concerned, it is relevant to note that
the said application in I.A.No.3 of 2024 is also closed in light of the
dismissal of I.A.No.1 of 2024.
13. In fact, the above order clearly indicates that the applications have
not been dismissed, the same have been closed without recording any
reasons as to whether they are allowed or dismissed. Therefore, the
question of filing an appeal does not arise at all. In the event the application
filed to set aside the exparte decree is dismissed, the defendant can avail the
remedy in terms of Order XLIII Rule 1 of CPC. The Hon'ble Apex Court in
SLP.No.5489 of 2021 has held that when an application is filed seeking
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CRP.Nos.2088, 2089 & 2091 of 2024
condonation of delay and for setting aside an ex-parte decree and the same
is dismissed and consequently, the petition is also dismissed, the appeal
under Order XLIII Rule 1(d) CPC is maintainable. Whereas, as it is stated
above, the Trial Court has not passed any order dismissing the application
to set aside the exparte decree. This Court is of the view that when the
order has been passed in contravention to statutory provisions and without
any finding, merely because the application has been closed, it cannot be
stated that only appeal will lie. Therefore, when the Order itself is illegal
and not in terms of the well established procedure, there is no bar for the
High Court under Article 227 of the Constitution of India to interfere with
that Order by entertaining the revision.
14. It is also to be noted that the Hon'ble Supreme Court in the case of
State of U.P. vs. District Judge, Unnao and others reported in (1984) 2
SCC 673 has held that since the appellant had established that he was
prevented by sufficient cause from preferring appeal in time, it is sufficient
for the High Court to invoke its jurisdiction under Article 226 or 227 of the
Constitution of India to reverse the trial court's order of refusal to condone
delay in the interest of justice.
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15. Though the judgment in the Koushik Mutually Aided Cooperative
Housing Society (cited supra) has held that in view of the appellate remedy
under Order XLIII Rule 1(d) CPC being available, revision under Section
115 of the CPC is not maintainable, however, in that judgment, the earlier
judgment of the Hon'ble Supreme Court in State of U.P (referred above)
was not considered. The 5-Judge Constitution Bench of the Hon'ble
Supreme Court in the case of National Insurance Company Limited vs.
Pranay Sethi reported in (2017) 16 SCC 680 has held that in any case,
when faced with conflicting judgments by Benches of equal strength of this
Court, it is the earlier one which is to be followed by the High Courts. The
relevant portion of the judgment reads as follows:
“35. We are seeing before us judgments and orders by
High Courts not deciding cases on the ground that the
leading judgment of this Court on this subject is either
referred to a larger Bench or a review petition relating
thereto is pending. We have also come across examples of
High Courts refusing deference to judgments of this Court
on the score that a later Coordinate Bench has doubted its
correctness. In this regard, we lay down the position in law.
We make it absolutely clear that the High Courts will
proceed to decide matters on the basis of the law as it
stands. It is not open, unless specifically directed by this
Court, to await an outcome of a reference or a review
petition, as the case may be. It is also not open to a High
Court to refuse to follow a judgment by stating that it has
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been doubted by a later Coordinate Bench. In any case,
when faced with conflicting judgments by Benches of equal
strength of this Court, it is the earlier one which is to be
followed by the High Courts, as held by a 5-Judge Bench in
National Insurance Company Limited vs. Pranay Sethi,
reported in (2017) 16 SCC 680. The High Courts, of course,
will do so with careful regard to the facts and circumstances
of the case before it.”
16. At any event, as discussed above, the present case is only against
the closure of application, not against the dismissal of the application.
Hence, the revision is maintainable.
17. Accordingly, the Orders passed in the applications in closing the
petition to set aside the exparte decree; petition seeking leave to defend the
suit and dismissing the application filed seeking to condone the delay in
filing the set aside petition as against the exparte decree, are set aside.
18. The Trial Court is directed to hear the applications in I.A.No.2 & 3
of 2024 filed under Order IX Rule 13 of CPC and leave to defend the suit
on merits and pass orders within a period of three months from the date of
receipt of a copy of this Order. It is made clear that while passing order, the
Trial Court shall take into consideration of the fact that the petitioner has
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CRP.Nos.2088, 2089 & 2091 of 2024
already deposited a part of the decretal amount, no malafides established
against him, liberal approach shall be taken for advancing substantial
justice. In the event of allowing such applications, the Trial Court shall
dispose of the suit within a period of eight months thereafter.
19. Accordingly, these revisions are allowed. No costs. Consequently,
connected miscellaneous petitions are closed.
08.11.2024
dhk
Index : Yes/No
Internet : Yes/No
To,
The XXII Assistant Judge
XXII Assistant City Civil Court
Chennai
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CRP.Nos.2088, 2089 & 2091 of 2024
N.SATHISH KUMAR, J.,
dhk
C.R.P.Nos.2088, 2089 & 2091 of 2024
and C.M.P.Nos.11163 to 11165 of 2024
08.11.2024
https://www.mhc.tn.gov.in/judis
