The petitioner has filed this civil revision petition assailing the the fair and decreetal order dated 06.03.2012 passed in I.A.No.112 of 2008 in O.S.No.6 of 2007 on the file of the learned Sub Court, Arani.
2. The petitioner is the fifth defendant and the first respondent is the plaintiff in the suit. The first respondent had filed the suit for recovery of a sum of Rs.2,30,487.50 from the defendants. Pending suit, the petitioner had filed I.A.No.210 of 2007 under Order 26, Rule 10(A) C.P.C. seeking to appoint an advocate commissioner to get the expert opinion scientifically by comparing the admitted signature visible on the front side of the suit promissory note with that of the disputed signature visible on the back of the suit promissory note in the alleged endorsement dated 14.01.2004 and file the report to be obtained from the signature expert.
3. By an order dated 05.01.2008, the trial Court, directed the petitioner to deposit a sum of Rs.5,000/- on or before 21.01.2008 for the purpose of appointing an advocate commissioner and obtain expert opinion.
4. According to the petitioner, since the petitioner was bedridden, he was not able to contact his counsel and after recovery, when the petitioner met his counsel, he informed that because of non-deposit of the amount as directed by the Court, the petition was dismissed. Hence, the petitioner prayed for restoration of I.A.No.210 of 2007, which was dismissed for default on 30.04.2008.
5. The case of the first respondent is that despite several adjournments, the petitioner had not deposited the amount and the ill-health stated by the petitioner was concocted for the purpose of filing of the petition. In fact, the petitioner was hale and hearty and in order to drag on the proceedings, the petitioner has filed the petition. According to the first respondent, as against the order of dismissal of I.A.No.210 of 2007, the petitioner has to file an appeal and he has no right to file petition to restore the same. The provision of law quoted by the petitioner was wrong.
6. Upon consideration of the rival submissions, the trial Court dismissed the petition holding that since the petitioner has not complied with the conditional order, the petition was dismissed and no ex parte order was passed against the petitioner. There was no reason to entertain the petition. Challenging the same, the petitioner has filed this revision.
7. I heard Mr.G.Rajan, learned counsel for the petitioner. Despite service, the first respondent has not entered appearance. Perused the materials available on record.
8. The learned counsel for the petitioner submitted that since conditional order of the Court dated 05.01.2008 passed in I.A.No.210 of 2007 was not complied with, the trial Court has dismissed the petition on 30.04.2008 and restore I.A.No.210 of 2007, the petitioner has filed I.A.No.112 of 2008 under Order 9, Rule 7 read with Section 151 C.P.C.
9. It was the say of the first respondent before the trial Court that no ex parte order was passed against the petitioner in I.A.No.210 of 2007 and the petitioner had quoted wrong provision. According to the respondent before the trial Court, if the petitioner wants to restore I.A.No.210 of 2007, he ought to have filed petition under Order 9, Rule 9 C.P.C. and not under Order 9, Rule 7 C.P.C.
10. It is settled that if the application was filed by quoting wrong provision of law, the Court has got power to apply the correct provision. Quoting a wrong provision of law will not prejudicially affect the right of a party to seek redressal of his grievance unless the contesting party is able to show that a prejudice has been caused to him because of quoting of a wrong provision
11. On a perusal of the order in I.A.No.210 of 2007, it is seen that the trial Court ordered that the petition (I.A.No.210 of 2007) will be allowed subject to payment of cost of Rs.5,000/- by the petitioner on or before 21.01.2008. Thus, it is clear that on the date when the order was passed, the trial Court has not allowed the petition. Thereafter, the petitioner took several adjournments for depositing the amount and finally, on 30.04.2008 only I.A.No.210 of 2007 was dismissed for default for non-depositing of the cost of Rs.5,000/-.
12. In the order impugned, the trial Court has stated that since the petitioner had failed to deposit the amount, the petition was dismissed and no ex parte order was passed in I.A.No.210 of 2007 against the petitioner. The trial Court ought not to have passed an order dated 30.4.2008 on merits, as the original order dated 5.1.2008 does not contain default clause i.e., failure of the petitioner to deposit the conditional amount the petition will stand dismissed. For the default of the petitioner in depositing the amount only, the trial Court has dismissed I.A.No.210 of 2007 on 30.04.2008. Therefore, the petitioner has right to file a petition to restore I.A.No.210 of 2007 and the trial Court was not right in dismissing the petition on the ground that there was no reason to file the petition for restoration.
13. Considering the nature of the suit and the defence raised by the petitioner and the fact that the petitioner was disputing the signature of his father found in the suit promissory note and also to give an opportunity to the petitioner to establish his case in the suit before the trial Court, it would be appropriate to restore I.A.No.210 of 2007, which was dismissed on the fault of the petitioner on 30.04.2008, so as to enable the petitioner to proceed with the suit in accordance with law.
14. In the result, the Civil Revision Petition is allowed and the order dated 06.03.2012 passed in I.A.No.112 of 2008 in O.S.No.6 of 2007 on the file of the learned Principal Sub Court, Arani is set aside. I.A.No.210 of 2017 is ordered to be restored on file. The petitioner is directed to comply with the conditional order dated 05.01.2008 passed in I.A.No.210 of 2017 within a period of two weeks from the date of receipt of a copy of this order and on such deposit being made, the Principal Sub Court, Arani, is directed to proceed with the suit in accordance with law. If the petitioner fails to deposit the conditional amount within the stipulated time supra, it is open to the learned Principal Sub Court, Arani to pass further orders. No costs. Consequently, connected miscellaneous petition is closed.
22.02.2017 vs Note:Issue order copy on 27.09.2018 Index : Yes/No To The Principal Subordinate Judge, Arani.
M.V.MURALIDARAN, J.
vs C.R.P.(PD) No.3689 of 2012 and M.P.No.1 of 2012 22.02.2017