in both C.R.Ps.
PRAYER (in C.R.P.(NPD) (MD) No.1622 of 2010): Civil revision petition is filed, under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order in I.A.No.48 of 2009 in O.S.No.112 of 2004, dated 16.12.2009, on the file of the Sub Court, Palani.
http://www.judis.nic.in 2 PRAYER (in C.R.P.(NPD) (MD) No.1623 of 2010): Civil revision petition is filed, under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order, dated 16.12.2009, in I.A.No.49 of 2009 in O.S.No.112 of 2004, on the file of the Sub Court, Palani.
The civil revision petitions are directed against the fair and decreetal orders, dated 16.12.2009, passed in I.A.Nos.48 and 49 of 2009 in O.S.No.112 of 2004, on the file of the Subordinate Court, Palani.
2. The suit in O.S.No.112 of 2004 has been laid by the respondent / plaintiff against the petitioner / defendant for specific performance. It is found that the petitioner / defendant has entered appearance through his counsel in the abovesaid suit and also filed his written statement and thereafter, when the suit had been listed for trial, inasmuch as the counsel for the petitioner had reported no instruction and accordingly, the petitioner was called and being remained absent, the Court below set the petitioner ex parte http://www.judis.nic.in 3 and passed the ex parte decree in favour of the respondent / plaintiff in the suit on 29.06.2006. Seeking to set aside the ex parte decree passed against him, it is found that the petitioner has come forward with I.A.No.49 of 2009. Inasmuch as there occurred a delay of 906 days in preferring the abovesaid application, to condone the said delay, he has preferred I.A.No.48 of 2009.
3. The reasons given by the petitioner for the delay are that inasmuch as he had not received any communication from his counsel and furthermore as he had shifted his residence, the communication sent by his counsel had not been received by him and accordingly, he had been unable to appear in the Court when the matter was listed for trial. Furthermore, he would also state that inasmuch as he had been suffering from high blood pressure and also heart ailment and taking treatment, he was unable to contact his counsel and know about the stage of the suit and thereby also, he had not been aware of the ex parte decree passed against him in the suit. In addition to that, he would also state that following the recovery from his ailment as abovestated, according to him, he had met with an accident on 04.11.2007 and sustained serious injuries and resultantly, taking treatment with reference to the same and only after recovery, he was able to contact his counsel and thereby also, the delay had occurred. The petitioner would further state that he had come to know about the ex parte decree only through his friends, who had been http://www.judis.nic.in 4 apprised of the same by the respondent and accordingly, stated that the delay had occurred in filing the application to set aside the ex parte decree and prayed for the condonation of the delay and also to set aside the ex parte decree passed against him in the suit laid by the respondent.
4. The abovesaid applications preferred by the petitioner had been seriously resisted by the respondent denying all the reasons projected by the petitioner for the delay as false and invented for the purpose of the case and contended that the petitioner is fully aware of the ex parte decree in the suit much anterior in time and in this connection, he would also state that though the Court below had, by way of the ex parte decree dated 29.06.2006, granted him one month time to deposit the balance sale consideration in the Court, inasmuch as he was unable to deposit the balance sale consideration within the time granted by the Court on account of his illness, seeking extension of time, according to him, he had preferred I.A.No.405 of 2006 and stated that in the abovesaid application, notice had been ordered to the petitioner and the petitioner had received the said notice and entered appearance through his counsel and took time for filing counter and thereafter, the abovesaid application had been allowed on terms on 19.07.2007 and following the same, he had also paid the cost ordered by the Court to the petitioner's counsel and in the abovesaid application, he had clearly averred about the ex parte decree http://www.judis.nic.in 5 passed against the petitioner in the suit and therefore, contended that the petitioner is fully aware of the ex parte decree passed against him in the suit much earlier and not belatedly as putforth by him and therefore, prayed for the dismissal of the applications preferred by the petitioner.
5. The Court below, on a consideration of the materials available on record, was pleased to dismiss the applications preferred by the petitioner. Aggrieved over the same, the present civil revision petitions have been preferred.
6. The petitioner has suffered an ex parte decree in the suit laid by the respondent on 29.06.2006. To set aside the ex parte decree passed against him in the suit, he has come forward with an application in I.A.No.49 of 2009. As there occurred a delay of 906 days in preferring the abovesaid application, to condone the abovesaid delay, he has preferred I.A.No.48 of 2009.
7. Three reasons are projected by the petitioner for the condonation of the delay. The first reason is that as he has not received any communication from his counsel regarding the stage of the suit and furthermore, as he had shifted his residence, the communication sent by the counsel had not been received by him and accordingly, he was not aware of the ex parte decree http://www.judis.nic.in 6 passed against him in the suit. The second reason is that inasmuch as he has been suffering from high blood pressure and heart ailment and taking treatment with reference to the same, he was unable to contact his counsel and know about the stage of the case. The third reason is that subsequently, he met with an accident and sustained serious injuries and taking treatment and thereby also, he was unable to contact his counsel and know the stage of the case. According to the petitioner only later, through his friends, he came to know about the ex parte decree passed against him in the suit and thereby, stated that the delay had occurred in the matter. The abovesaid reasons projected by the petitioner for the condonation of the delay are being stoutly challenged by the respondent. In the light of the above position, as rightly putforth by the respondent's counsel, to substantiate the abovesaid reasons, at least prima facie, the petitioner should have placed acceptable and reliable materials to sustain the same. It is found that the petitioner has not evinced any interest to adduce evidence in the matter as regards the alleged reasons putforth by him for the huge and inordinate delay. When in particular the respondent has contended that the petitioner is fully aware of the ex parte decree passed against him in the suit much earlier, at least to refute the same, the petitioner should have entered into the witness box and deposed evidence with regard to the alleged reasons projected by him and also placed acceptable and reliable materials in support of the same. When it is seen that the http://www.judis.nic.in 7 respondent had moved an application for extension of time in depositing the balance sale consideration in the Court, after the ex parte decree had been passed in I.A.No.405 of 2006 and in the said application notice had been received by the petitioner and entered appearance through his counsel and thereafter, the said application having been allowed on terms and following the same, the petitioner's counsel had also received the cost ordered in the matter, in such view of the matter, to say that the petitioner had no knowledge about the ex parte decree passed against him in the suit and came to know about the same only later through his friends belatedly, as such, cannot be readily countenanced. As rightly determined by the Court below, when the reasons projected by the petitioner for the huge and inordinate delay are being seriously refuted by the respondent, the petitioner should have been more careful and diligent in placing convincing materials and proof to sustain the case. On the other hand, when there is absolutely no material whatsoever on the part of the petitioner for the condonation of the huge and inordinate delay and furthermore, when it is seen that the petitioner is aware of the ex parte decree passed against him in the suit much earlier as above discussed, it is evident that the present applications have been preferred by the petitioner only to stifle the execution proceedings laid by the respondent following the ex parte decree granted in his favour and in such view of the matter, I am not inclined to interfere with the impugned orders of the Court below, which have http://www.judis.nic.in 8 been rightly passed taking into consideration the relevant materials available on record.
8. For the reasons aforestated, the civil revision petitions are found to be devoid of merits and the same are accordingly dismissed with costs. Consequently, connected miscellaneous petition is closed.
31.01.2019 Internet : Yes / No Index : Yes / No krk To: The Sub Judge, Palani. http://www.judis.nic.in 9 T.RAVINDRAN, J. krk COMMON ORDER IN C.R.P.(NPD) (MD) No.1622 of 2010 and C.R.P.(NPD) (MD) No.1623 of 2010 and M.P.(MD) No.1 of 2010 31.01.2019 http://www.judis.nic.in