Animadverting upon the order dated 28.01.2008 passed by the learned Fast Track Judge, Dharmapuri made in I.A.No.44 of 2007 and 39 of 2006 in O.S.No.114 of 2004, this civil revision petition is focussed.
2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.
3. The facts giving rise to the filing of this revision petitioner as stood exposited from the records as well as the submission made by both the sides could pithily and briefly be set out thus:
I.A.No.39 of 2006 was filed by the respondent/plaintiff under Order 20 Rule 12 of CPC for getting assessed the mesne profits. However, in that application, the revision petitioner herein, being the respondent entered appearance but did not file any counter; whereupon the lower Court set him exparte. Being aggrieved by and dissatisfied with that I.A.No.44 of 2007 was filed for getting set aside the exparte order but that was dismissed. As against which, this revision is focussed on various grounds.
4. The learned counsel for the revision petitioner reiterating the grounds of revision would develop his argument to the effect that already appeal is pending as against the preliminary decree, whereupon the Appellate Court had granted stay to the effect that final decree shall not be passed pending disposal of the first appeal ; simply because counter was not filed, owing to circumstances beyond the control of the revision petitioner herein, the lower court was not justified in setting him exparte in I.A.No.39 of 2006 and consequently dismissing I.A.No.44 of 2007 also.
5. The learned counsel for the respondent/plaintiff would oppose the prayer for giving liberty to the revision petitioner to file counter in I.A and participate in the enquiry.
6. Considering the pro et contra , I am of the view that I.A.No.39 of 2006 is for enquiring into the mesne profits, as it is obvious that in view of the stay granted by the appellate Court, final decree has not been passed; in such a case, the application filed in I.A.No.44 of 2007. for getting the exparte order setting aside in I.A.No.39 of 2006 could have been considered favourably on payment of costs. But the trial Court had taken a very strict view and dismissed the said I.A. Hence the order of the trial Court is set aside and I.A.No.44 of 2007 is allowed but with a cost of Rs.500/- payable by the petitioner to the respondent within two weeks from the date of receipt of a copy of this order and thereafter, the revision petitioner is permitted to file counter in I.A.No.39 of 2006 and participate in the enquiry.
7. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.