Madras High Court
Prabhakaran vs Latchumi Priya on 2 July, 2025
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
CRP.No.584 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 02.07.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
CRP.No.584 of 2024
and CMP.No.2896 of 2024
Prabhakaran ... Petitioner
Versus
Latchumi Priya ... Respondent
PRAYER : Petition filed under Section 115 of the Code of Civil Procedure, to set
aside the fair and decretal order dated 27.09.2023 passed in I.A.No.1069 of 2022
in O.S.No.39 of 2017 on the file of the Family Court, Puducherry.
For Petitioner : M/s.D.E.Anisree Sangavi
For Respondent : Mr.M.R.Vinoth Prabhu
ORDER
Challenging the order passed by the Trial Court dismissing the application
filed under Section 5 of Limitation Act to condone the delay of 170 days in filing
the petition to set aside the exparte decree.
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2. The revision petitioner is the defendant and the respondent is the
plaintiff.
3. The application was filed by the revision petitioner on the ground that
PW1 was examined in chief and when the matter was posted for cross examination
of PW1/respondent, due to the family worries to maintain his aged parents, besides
suffering from corona restriction, he was not in a position to appear before the
Court every time from Chennai. Therefore, exparte decree was passed. Hence,
filed the application to condone the delay of 170 days in filing the petition to set
aside the exparte decree. Whereas, the respondent/wife has opposed the
application stating that the decree is passed purely on merits applying judicial
mind discussing various provisions of law carefully scrutinized the malicious
attitude of the petitioners. The petitioner under Order IX Rule 7 does not arise.
Hence, sought for dismissal of this application. The Trial Court dismissed the
application on the ground that the suit has been decreed under Order XVII Rule 3
of CPC, therefore, the application is not maintainable.
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4. The following facts are necessary for disposal of this revision. Originally,
the suit has been filed by the plaintiff for return of sridhana properties said to have
been given to the revision petitioner at the time of marriage. It is alleged in the
plaint that 30 sovereign of jewels and other articles are given which is in
possession of the husband, whereas, the same has been disputed by the defendant.
According to him, only 25 sovereigns of gold jewelery out of which 20 sovereigns
of gold jewelery given to the plaintiff and 5 sovereigns to the defendant. The
marriage between the parties was dissolved on 26.07.2016. When the above suit
was pending, plaintiff examined herself as PW1, Ex.A1 to A4 are marked. When
the matter was posted for cross continuation on 02.12.2021 and 16.12.2021,
though, one of the occasion, PW1 was partly cross examined, as the further cross
examination was not completed due to the absence of the defendant, he was set
exparte and the Trial Court as proceeded to pass the decree under Order XVII Rule
3 of CPC. Whereas, the present application has been taken out to condone the
delay in setting aside the exparte decree dated 05.01.2022, the same was rejected
by the Trial Court vide the impugned order.
5. Heard both sides and perused the materials placed on record.
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6. In light of the above submissions, now the point arise for consideration in
this revision is as follows:
(i) Whether the Trial Court was right in dismissing the application on the ground
that the suit has been properly decreed under Order XVII Rule 3 of CPC?
Point (i)
7. It is not in dispute that PW1 was examined in chief and cross examined in
part, her entire cross examination is not completed as the defendant was absent,
thus, set exparte. It is relevant to note that as per Order XVII Rule 2 of CPC,
where, on any day to which the hearing of the suit is adjourned, the parties or any
of them fail to appear, the Court may proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or make such other order as it thinks fit.
Explanation to Rule 2 of Order XVII of CPC gives discretion to the Court to
proceed with the case where the evidence or a substantial portion of the evidence
of any party has already been recorded and such party fails to appear on any day to
which the hearing of the suit is adjourned. In order to exercise such discretion, it is
sine qua non substantial portion of evidence of such party has already been
recorded. Therefore, in the absence of any evidence of the defendant on the date
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when the Court proceeded, the Court had no option but to proceed under Order
XVII Rule 2 of CPC. To exercise a discretion under explanation to Rule 2 of
Order XVII of CPC, admittedly, there was no evidence on the part of the
defendant who was absent on the date of cross examination. In such a scenario, the
Court ought to have decreed the suit in any of the modes as directed under Order
IX of CPC. Therefore, invoking Order XVII Rule 2 to pass a judgment by the Trial
Court is not permissible, such a decree is only to be construed as an exparte decree
passed under Order IX not under Order XVII Rule 2 of CPC. Therefore, to set
aside the exparte decree against the defendant, only the provision under Order IX
Rule 13 of CPC alone is applicable.
8. The revision petitioner has rightly filed an application to condone the
delay in filing the petition to set aside the exparte decree. Therefore, the Trial
Court dismissing the application on a different ground in view of this Court is not
permissible. Considering the nature of explanations given by the party though
each days delay has not been properly explained, considering the nature of
judgment, this Court is of the view that the matter has to be decided on merits. It is
relevant to note that the Hon'ble Apex Court in the case of Robin Thapa vs. Rohit
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Dora reported in (2019) 7 SCC 359 held that a litigation is based on adjudication
on the merits of the contentions of the parties. Litigation should not be terminated
by default, either of the plaintiff or the defendant. The cause of justice does
require that as far as possible, adjudication be done on merits.
9. Accordingly, the delay is condoned and the Order of the Trial Court is set
aside. The Trial Court is directed to decide the application filed under Order IX
Rule 13 of CPC immediately and thereafter, in the event, the exparte decree is set
aside, the suit shall be disposed of on merits within a period of four months
thereafter.
10. Accordingly, this revision stands allowed. No costs. Consequently,
connected miscellaneous petition stands closed.
02.07.2025
dhk
Index : Yes/No
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To
1.The District Judge
Family Court, Puducherry
2.The Section Officer, VR Section
Madras High Court
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N.SATHISH KUMAR, J.
dhk
02.07.2025
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