The petitioner / plaintiff has laid the suit, in O.S.No.1603 of 2006, on the file of the Principal District Munsif Court, Madurai Town, for the reliefs of declaration and it is found that the respondents herein are the defendants 1 to 9 in the said suit. It is further found that the above said suit of the petitioner / plaintiff was originally instituted as a pauper original petition in P.O.P.No.72 of 1988, on the file of the Sub Court, Madurai and thereafter, on the basis of the pecuniary jurisdiction, it is found that the above said suit had come to be transferred to the Principal District Munsif Court, Madurai and renumbered as O.S.No.1603 of 2006. It is found that the defendants 1 to 9 had entered appearance in the suit, when the matter was pending at the stage of in forma pauperis, through an Advocate by name M.N.Sankaran and contested the matter. Further, it is found that the request of the petitioner / plaintiff to permit him to file the suit in forma pauperis was negatived by the Court below. It is further found that after the intervention of the High Court, the pauper original petition had been converted into a regular suit as adverted above and even thereafter, the defendants 1 to 9 have been contesting the suit of the plaintiff and taking time for filing their written statement in the matter. It is further found that from 1999 onwards, the suit had been listed for filing written statement by the defendants in the suit and finally only some defendants have filed their written statement and accordingly, on 27.02.2003, inasmuch as the other defendants did not file written statement, they were called absent and resultantly, set ex parte. It is found that thereafter, issues were framed in the suit and the suit had been posted for trial. These happenings had occurred when the suit had been pending on the file of the Sub Court, Madurai. Thereafter, it is found that at the trial stage of the suit, on account of pecuniary jurisdiction, the suit had come to be transferred to the Principal District Munsif Court, Madurai and renumbered as O.S.No.1603 of 2006. It is, thus, found that the defendants 1 to 9 had been set ex parte in the suit even when the matter was pending on the file of the Sub Court, Madurai. In such view of the matter, it is found that inasmuch as the suit had been contested by the other defendants in the matter when the suit had been transferred to the file of the Principal District Munsif, Madurai, on account of pecuniary jurisdiction and inasmuch as the defendants 1 to 9 had already been set ex parte, according to the learned counsel for the plaintiff, on such transfer, it is not necessary to send notice to the defendants 1 to 9, who had already been set ex parte in the suit proceedings. Thereafter, on the suit having been transferred to the Principal District Munsif Court, Madurai, when the suit was listed for trial and inasmuch as the remaining defendants had also not contested the suit and remained ex parte, it is found that the ex parte decree had come to be passed as against all the defendants on 16.11.2007.
2. Now, the defendants 1 to 9 have come forward with an application to set aside the ex parte decree passed against them in the suit on 16.11.2007 and inasmuch as there is a delay of 2735 days in filing the said application, it is found that the defendants 1 to 9 have laid the application in I.A.No.441 of 2015 to condone the said delay. The reasons given by the defendants 1 to 9 for the said delay is that they were not aware of the ex parte decree passed in the suit on 16.11.2007 and though they had engaged an Advocate M.N.Sankaran to defend their cause and inasmuch as, according to them, no intimation or information had been received from the said Advocate as to the progress of the suit and as they were bona fidely believing that the said Advocate would inform them about the status of the suit and as their Advocate had not sent any communication, according to them, they were unable to know the progress of the suit and further, according to them, only on 12.12.2014 they had come to know about the ex parte decree passed in the suit as by that point of time, according to them, the plaintiff had filed a claim application in the TANPID Court for raising the attachment and accordingly, on coming to know about the ex parte decree passed against them, it is stated that they have taken steps to set aside the same and hence the delay had occurred. It is found that in the affidavit, the defendants 1 to 9 have not stated that they are unaware of the transfer of the suit from the Sub Court, Madurai, to the Principal District Munsif Court, Madurai, on account of the pecuniary jurisdiction. A reading of the reasons given by the defendants 1 to 9 for the condonation of the delay would only go to disclose that they have thrown the entire blame on the Advocate M.N.Sankaran for the ex parte decree passed against them and further, according to them, the said M.N.Sankaran had acted in collusion with the plaintiff and acted against their interest and thereby it is stated that the ex parte decree had been passed without their knowledge and hence, the same is liable to be set aside.
3. The above said application of the defendants 1 to 9 had been stiffly resisted by the plaintiff contending that all along the defendants 1 to 9 had been represented by their Advocate in the suit proceedings right from its inception and they have been fighting tooth and nail and accordingly, the Court below had been granting adequate time for filing written statement on their behalf and inasmuch as they had not filed written statement, accordingly they were set ex parte and the suit proceeded along with the contest of the other defendants and thereafter, on the question of pecuniary jurisdiction, the suit had come to be transferred to the Principal District Munsif Court, Madurai and thereafter, inasmuch as the other defendants also did not contest the matter and remained ex parte, the ex parte decree had come to be passed in the suit on 16.11.2007. It is the further case of the plaintiff that the defendants 1 to 9 have conveniently thrown the blame on their Advocate M.N.Sankaran for justifying the huge and inordinate delay and if the defendants 1 to 9 have diligently followed the case and had a good case to defend the matter, they would not have waited endlessly for more than 7 + years for the intimation about the progress of the suit from the Advocate concerned and on the other hand, inasmuch as they have no case at all to defend, it is stated that the defendants 1 to 9 have not taken care to file the written statement and also not contested the matter as per law and only thereafter, it is alleged that the defendant 1 to 9's power agent, on seeing the efforts of the plaintiff' to raise the attachment of the property concerned in the TANPID Court, had preferred the application without any sufficient cause and it is further stated that even as per the case of the defendants 1 to 9, on coming to know about the ex parte decree on 12.12.2014, even thereafter also immediately they have not preferred the application to set aside the ex parte decree and only 22.06.2015, the application has come to be preferred and hence, it is stated that with a view to cause irreparable loss and hardship to the plaintiff and to delay the proceedings endlessly, the defendants 1 to 9 have come forward with the delay condonation application containing false reasons and hence, the application is liable to be dismissed.
4. In support of the defendants 1 to 9's case, P.Ws.1 and 2 were examined and Exs.P1 to P20 were marked and on the side of the plaintiff, R.Ws.1 and 2 were examined and Exs.R1 to R11 were marked.
5. The Court below, on a consideration of the rival contentions put forth by the respective parties and the materials placed, entertained the application preferred by the defendants 1 to 9. Impugning the same, the present civil revision petition has been preferred by the plaintiff.
6. In the suit laid by the plaintiff, the defendants 1 to 9 have been set ex parte for their failure in filing the written statement. Thereafter, it is found that inasmuch as the other defendants had also failed to contest the suit laid by the plaintiff, on 16.11.2007, an ex parte decree had come to be passed in the suit in favour of the plaintiff. In order to set aside the same, the defendants 1 to 9 have preferred an application, under Order IX Rule 13 C.P.C. Inasmuch as there is a delay of 2735 days in filing the said application, the application in I.A.No.441 of 2015 has been preferred to condone the said delay. The reasons given by the defendants 1 to 9 for the condonation of the delay is that they were not aware of the ex parte decree passed against them in the suit and inasmuch as their Advocate M.N.Sankaran had not informed about the progress of the suit by sending any communication to them and as they were waiting endlessly for the communication from the Advocate, they were not in a position to know about the progress of the suit and only after the plaintiff had taken steps to raise the attachment of the property concerned in the TANPID Court, according to them, they had come to know about the ex parte decree passed against them in the suit and hence, the delay had occurred. A reading of the averments contained in the affidavit filed by the defendants 1 to 9 for the condonation of the delay would go to show that they have completely thrown the blame on their Advocate. It is their case that since their Advocate failed to inform them about the progress of the suit, they were kept in dark. However, as rightly contended by the learned counsel for the plaintiff, if the defendants 1 to 9 were serious in their defence and had a valid defence to resist the suit, as prudent persons, they would have endeavoured to know the progress of the suit from the Advocate concerned now and then. Therefore, the plea of the defendants 1 to 9 that on account of their Advocate's failure to send communication to them about the progress of the suit, they are unable to know about the progress of the suit as such cannot be believed and accepted in any manner. It is further stated that the Advocate concerned had acted in collusion with the plaintiff and against their interest and thereby, he had left the suit to go for ex parte against them. However, with reference to the allegation that the Advocate concerned had acted in collusion with the plaintiff, there is no acceptable and reliable material. Even as regards the allegation that the said Advocate had acted against their interest, it is found that there is no acceptable and reliable material. It is further seen that according to the defendants 1 to 9, they came to know about the ex parte decree only on 12.12.2014 only, when the plaintiff preferred a claim application to raise the attachment in the TANPID Court, however it is found that the present application had come to be preferred by the defendants 1 to 9 only on 22.06.2015. It is, thus, seen that even after coming to know about the ex parte decree, as per the case of the defendants 1 to 9, they had not chosen to prefer the application at the earliest opportunity and they have taken their own time in preferring the application five months thereafter. This would only go to show that the defendants 1 to 9 are not serious in defending the matter and their only aim is to procrastinate the matter one way or the other.
7. A perusal of the reasons given by the defendants 1 to 9 for the delay would go to show that they had thrown the entire blame on their Advocate, who entered appearance on their behalf in the suit. However, it is found that at the stage when the defendants 1 to 9 were set ex parte in the proceedings, they were not represented by their power agent and only at the time of filing of the present application, it is found that they are being represented by the power agent. Therefore, it could be seen that the power agent would not have any personal knowledge about the suit proceedings, which had occurred till the date of the defendants 1 to 9 were set ex parte in the proceedings. This has been admitted by the power agent also, who has been examined as P.W.1. Now, according to the defendants 1 to 9, only on 12.12.2014 they had come to know about the ex parte decree passed against them. With reference to their case, they had chosen to examine the power agent as P.W.1. P.W.1, during the course of cross-examination, has admitted that he does not know whether the defendants 1 to 9 have not filed written statement in the suit and also admitted that he does not know whether the defendants 10 to 15 have filed written statement in the suit and also admitted that he does not know whether the suit had ended in an ex parte decree one year after the suit had been transferred to the Principal District Munsif Court, Madurai and renumbered as O.S.No.1603 of 2006. It is further admitted by him that till the passing of the ex parte decree in the suit, he had not taken part in the suit proceedings. It is, therefore, found that P.W.1 is not personally aware of the happenings, which had occurred prior to the passing of the ex parte decree in the suit. In such view of the matter, it is found that the evidence of P.W.1 would not in any manner be useful to sustain the case of the defendants 1 to 9 for the condonation of the delay. When P.W.1 had come to the picture only at the stage of filing of the application to set aside the ex parte decree and not aware of the happenings prior to the passing of the ex parte decree, his evidence that the defendants 1 to 9 were not aware of the progress of the suit on account of the mistake committed by their Advocate as put forth cannot be accepted in any manner. Now, according to the defendants 1 to 9, only on 12.12.2014, they had come to know about the ex parte decree. However, the above said case itself is found to be false. In this connection, it is found that P.W.1, during the course of cross- examination, has admitted that the defendants 1 to 9 were represented by their Advocate M.N.Sankaran at the stage when the suit was laid as in forma pauperis and the defendants 1 to 9 themselves had engaged the said Advocate and the said Advocate is a Senior Advocate and known to him and the said Advocate would conduct the case honestly. This admission of P.W.1 would go to show that the reasons given by the defendants 1 to 9 that they have no knowledge about the progress of the suit on account of the mistake committed by their Advocate would fall to the ground. When according to P.W.1, the Advocate engaged by the defendants 1 to 9 is an honest Advocate and he would conduct the case properly and diligently, the present allegation put forth against him that he had not informed about the progress of the suit to the defendants 1 to 9 and hence, they were unaware of the progress of the suit etc., cannot at all be accepted in any manner. Further, when P.W.1 was asked as to when he had met the Advocate M.N.Sankaran after the passing of the ex parte decree, he has deposed that after four or five days after the passing of the ex parte decree, he met the concerned Advocate. Therefore, it is found that after the passing of the ex parte decree, P.W.1 had met the Advocate. Therefore, to state that the defendants 1 to 9 or for the matter, P.W.1 had come to know about the ex parte decree only on 12.12.2014 as such cannot be accepted. On the other hand, it is found that the defendants 1 to 9 are aware of the ex parte decree even within four to five days after the passing of the same through their Advocate and this fact has been admitted by P.W.1 as above stated. In such view of the matter, the reasons given by the defendants 1 to 9 for the condonation of the delay are found to be not true and false. Further, P.W.1 has also admitted that when he met the Advocate four or five days after the passing of the ex parte decree, he along with the defendants 1 to 9 met the Advocate and he was informed by the defendants 1 to 9 that they had come to know about the ex parte decree through the Advocate Ranjith and accordingly, they had requested him to accompany him when they go to meet the Advocate M.N.Sankaran. Therefore, it is found that the defendants 1 to 9 as well as P.W.1 are fully aware of the ex parte decree passed against the defendants 1 to 9 in the matter and therefore, to state that they have become aware of the ex parte decree only on 12.12.2014 cannot be accepted and believed.
8. A reading of the impugned order would go to show that the Court below instead of analyzing the evidence on record and further, without determining whether the the cause given by the defendants 1 to 9 for the delay is acceptable or not, entertained the application on the footing that inasmuch as no notice had been sent to the defendants 1 to 9 about the transfer of the suit from the Sub Court, Madurai, to the Principal District Munsif Court, Madurai, on account of the pecuniary jurisdiction, the same had caused serious prejudice to the defendants 1 to 9 and in such view of the matter, inasmuch as the above error is due to the mistake committed by the Court, in the interest of justice, the Court below had entertained the application with a view to enable the defendants 1 to 9 to contest the matter on merits. However, it is found that as rightly contended by the learned counsel for the plaintiff, the defendants 1 to 9 were set ex parte even when the suit was pending on the file of the Sub Court, Madurai, on account of the fact that they failed to file written statement despite affording several opportunities and at that time also, the defendants 1 to 9's Advocate was M.N.Sankaran. As seen above, the defendants 1 to 9 have not placed any material to show that the Advocate acted against their interest, on the other hand, P.W.1 has admitted that the said Advocate is an honest Advocate and he would conduct the case properly and diligently. In such view of the matter, it is found that the defendants 1 to 9, knowing about the stage of the suit and deliberately as they failed to file the written statement as directed by the Court despite affording adequate opportunities, it is found that they have been set ex parte. The other defendants have filed their written statement and thereafter, the suit had been listed for trial, subsequently, the suit had been transferred to the Principal District Munsif Court, Madurai. In such view of the matter, when the suit had been transferred to another Court on account of pecuniary jurisdiction and even prior to the same, inasmuch as the defendants 1 to 9 had been set ex parte, in my considered opinion, there is no need for again sending the notice about the transfer of the suit to the defendants, who have already been set ex parte and accordingly, when the suit had been transferred to the District Munsif Court, Madurai, as the suit was at the stage of trial, the transferee Court had taken up the suit as sent and accordingly, proceeded with the trial and inasmuch as the other defendants had also later failed to contest the suit, it is found that the ex parte decree had come to be passed on 16.11.2007. It is further seen that nowhere in the application filed for the condonation of the delay, the defendants 1 to 9 have averred that they are unaware of the transfer of the suit from the Sub Court, Madurai, to the Principal District Munsif Court, Madurai, on account of pecuniary jurisdiction. It is, thus, found that the defendants 1 to 9 are also aware of the transfer of the suit to the Principal District Munsif Court, Madurai, on account of pecuniary jurisdiction. Accordingly, it is found that as admitted by P.W.1, after the passing of the ex parte decree in the suit, they had chosen to meet the Advocate four or five days thereafter and it is found that P.W.1 along with the defendants 1 to 9 have met the Advocate four or five days after the passing of the final decree and therefore, it is found that the defendants 1 to 9 and P.W.1 are fully aware of the transfer of the suit to the Principal District Munsif Court, Madurai, even at the time of transfer of the suit and despite the same, they had not chosen to contest the matter one way or the other and inasmuch as they had already been set ex parte, when the matter was pending on the file of the Sub Court, Madurai, it is further found that inasmuch as they have no valid defence to resist the plaintiff's suit, they had left the matter as such to go for ex parte and therefore, to contend that they have no knowledge about the ex parte decree passed in the suit as such cannot be believed and accepted. In such view of the matter, the reasonings of the Court below that the defendants 1 to 9 are not aware of the transfer of the suit as such cannot be accepted and hence, the same appears to be a special pleading entertained by the Court below for the purpose of this case. As seen above, when it is not even the case of the defendants that they are not aware of the transfer of the suit, it is seen that the endeavour of the Court below to entertain the application on the above ground as such cannot be accepted.
9. It is contended by the learned counsel for the defendants 1 to 9 that at one stage of the matter, the learned counsel, who appeared for the respondents 1 to 9, had reported ?no instruction? and subsequently, he had endorsed ?no objection? in the application preferred by the plaintiff for the return of the documents and this would only go to show that the said Advocate had not acted properly and hence, the apprehension of the defendants 1 to 9 that the said Advocate had acted against their interest should be considered by this Court. However, if that be so, P.W.1 would not have admitted that the said Advocate is an honest Advocate and that he would conduct the case properly. Be that as it may, if according to the defendants 1 to 9, the Advocate engaged by them had acted against their interest and only on account of his mistakes and laches, they were unable to contest the suit and if the said allegations have any semblance of truth, as rightly argued by the learned counsel for the plaintiff, it is always open to the defendants 1 to 9 to proceed as against the said Advocate in the manner known to law. Therefore, when it is found that without any basis, the defendants 1 to 9 had thrown the blame on their Advocate and when the same has been stoutly resisted by the plaintiff and when with reference to the same there is no material worthwhile acceptance forthcoming, it is found that the reasons given by the defendants 1 to 9 for the condonation of the huge and inordinate delay are nothing but false reasons.
10. As seen above, the defendants 1 to 9, through their power agent, have prior to the present application, filed another set of applications marked as Exs.R1 and R2 in January, 2015 itself and the reasons given therein for the setting aside of the ex parte decree are found to be different. It is further found that though the copies of the said applications have been served on the plaintiff, they have not chosen to prosecute the same diligently and suppressing the same, it is found that they have thereafter in the month of June, 2015, have filed the present application giving a new set of facts i.e., throwing the blame on the Advocate engaged by them.
11. But for the above said stray incident that their Advocate has endorsed no objection in the application filed by the plaintiff after having reported no instruction, there is no other material at all placed to show that the said Advocate has acted against their interest in any manner. Therefore, to say that on account of the communication not being sent by the Advocate concerned, they were unable to know the stage and progress of the suit as such cannot be believed. As above adverted to, if really the defendants 1 to 9 have a valid defence to resist the suit of the plaintiff, as prudent persons, they would have endeavoured to contest the suit at the earliest opportunity and on the other hand, after leaving the matter to go for ex parte, their conduct in coming forward with the applications to set aside the ex parte decree 7 + years after the passing of the same without any justifiable cause and when the said cause is found to be not true and also not established by acceptable and reliable materials and on the other hand when the evidence adduced would go to show that the said cause is untrue and false, in my considered opinion, the applications preferred by the defendants 1 to 9 should not have been entertained by the Court below. When it is not even the case of the defendants 1 to 9 that they are not aware of the transfer of the proceedings to the Principal District Munsif Court, Madurai, the reasonings of the Court below in entertaining the application of the defendants 1 to 9 on that ground are found to be erroneous and cannot be accepted as such.
12. In support of his contentions, the learned counsel for the petitioner / plaintiff has placed reliance upon the decisions reported in (2008) 17 SCC 448 [Pundlik Jalam Patil (Dead) by Lrs., vs. Executive Engineer, Jalgaon Medium Project and another], 2013 (6) CTC 143 [Padmavathy and others vs. D.Mariappan], 2013-4-L.W.515 [V.Radhakrishnan vs. P.Radhakrishnan], (2013) 12 SCC 649 [Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others] and 2015-3-L.W.319 [S.Muthukumar vs. M.Pari]. The learned counsel for the respondents / defendants 1 to 9, in support of his contentions, has placed reliance upon the decisions reported in (1997) 9 SCC 688 [Hanamanthappa and another vs. Chandrashekharappa and others], 1998 (II) CTC 533 [N.Balakrishnan vs. M.Krishnamurthy], 2000-1-L.W.547 [V.Amudha vs. S.A.Arumugham and others], (2002) 3 SCC 195 [Ram Nath Sao alias Ram Nath Sahu and others vs. Gobardhan Sao and others], 2006 (3) CTC 484 [Danial Textiles and another vs. State Bank of Travancore], (2008) 12 SCC 589 [Reena Sadh vs. Anjana Enterprises], 2011-3-L.W.80 [M/s.Meenakshisundaram Textiles vs. M/s.Valliammal Textiles Ltd.], 2013 (6) CTC 314 [Radhakrishna Reddy (Died) and others vs. G.Ayyavoo and others], 2013 (1) CTC 38 [Olympic Cards Limited vs. Standard Chartered Bank] and 2015-3-L.W.241 [S.Arul Dhas vs. F.Hubert and another]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
13. In the light of the above discussions, it is found that the reasons given by the defendants 1 to 9 for the condonation of the huge and inordinate delay are found to be false and unacceptable and it is further found that the reasons given by the defendants 1 to 9 are also not substantiated with acceptable convincing and reliable materials. It is further found that the defendants 1 to 9 have not endeavoured to set aside the ex parte decree passed against them immediately even after coming to know about the same as per the case on 12.12.2014. It is further found that the defendants 1 to 9 are well aware of the ex parte decree passed against them and also aware of the progress of the suit right from the inception till its culmination in ex parte decree. In the light of the above position, the impugned order of the Court below in entertaining the application preferred by the defendants 1 to 9 to condone the delay of 2746 days is found to be incorrect and unacceptable and accordingly, it deserves to be set aside.
14. In conclusion, the fair and decreetal order, dated 25.04.2017, passed in I.A.No.441 of 2015 in O.S.No.1603 of 2006, on the file of the Principal District Munsif Court, Madurai Town, are set aside and consequently, I.A.No.441 of 2015 is dismissed. Resultantly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.
To:
The Principal District Munsif, Madurai Town.
.