Challenging the fair and final order passed in I.A.No.203 of 2014 in O.S.No.27 of 2009 on the file of Additional District and Sessions Judge, Hosur, the defendants 2 and 3 have filed the above appeal.
2. The respondent-plaintiff filed the suit in O.S.No.27 of 2009 for specific performance, recovery of possession, permanent injunction and for other reliefs.
3. Originally, the plaintiff filed the suit as against the 1st defendant. Subsequently, the parties, who have purchased the suit property on 27.04.2009, were impleaded as defendants 2 and 3.
4. According to the defendants 2 and 3, they are bona fide purchasers for value and without notice of the suit agreement. The defendants filed their written statement and were contesting the suit.
5. The Trial Court framed the issues and posted the suit for trial. When the suit was posted for trial on 03.07.2014 for the cross examination of P.W.1, the defendants failed to appear before the Trial Court. Hence, they were set ex-parte and an ex-parte decree was passed on 10.07.2014. Thereafter, the defendants filed an application in I.A.No.203 of 2014 in O.S.No.27 of 2009 under Order IX Rule 13 of CPC to set aside the ex-parte decree passed on 10.07.2014.
6. In the affidavit filed in support of the application in I.A.No.203 of 2014, the 2nd defendant has stated that he was a Member of the Legislative Assembly of Hosur Constituency for more than 15 years and he travelled extensively in Tamil Nadu, Karnataka and Andhra Pradesh and even after Parliamentary election, he travelled to various places. Further, he has stated that he was bed-ridden due to viral fever, therefore, he could not appear on 03.07.2014. The 3rd defendant is the wife of the 2nd defendant. Hence, the defendants 2 and 3 have filed the application to set aside the ex-parte decree.
7. The plaintiff filed his counter disputing the averments stated in the affidavit filed in support of the application. Further, the plaintiff has stated that the 2nd defendant has not produced any medical certificate to prove that he was suffering from viral fever during the relevant period.
8. The Trial Court, after taking into consideration the case of both the parties, dismissed the application.
9. Aggrieved over the same, the defendants 2 and 3 have field the above appeal.
10. Heard Mr. V.Lakshmi Narayanan, learned counsel appearing for the appellants and Mr.G.Asokapathy, learned counsel appearing for the respondent.
10. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the respondent-plaintiff has filed the suit for specific performance and the defendants have filed their written statement and were contesting the suit. When the suit was posted for the cross examination of P.W.1 on 03.07.2014, since the defendants failed to appear before the Trial Court, the Trial Court set them ex-parte and an ex-parte decree was passed on 10.07.2014. Thereafter, the defendants 2 and 3 filed an application in I.A.No.203 of 2014 under Order IX Rule 13 of CPC to set aside the ex-parte decree dated 10.07.2014.
11. Admittedly, the 3rd defendant is the wife of the 2nd defendant. The 2nd defendant was taking care of the pending suit. Therefore, the defendants 2 and 3 filed an application stating that the 2nd defendant was a Member of the Legislative Assembly and he travelled extensively to various States during the Parliamentary election. Further, the 2nd defendant has stated that he was bed-ridden due to viral fever, therefore, he could not appear before the Trial Court on 03.07.2014. Hence, the defendants 2 and 3 were set ex-parte and an ex-parte decree was passed on 10.07.2014. The defendants 2 and 3 have filed the application to set aside the ex-parte decree on 02.08.2014 stating that the 2nd defendant was laid up with viral fever.
12. The Trial court, while dismissing the application found that the defendants has not produced the medical certificate to establish that the 2nd defendant was suffering from viral fever. Admittedly, the application to set aside the ex parte decree was filed within 30 days from the date of ex-parte decree. In fact, the application was filed within 22 days from the date of ex-parte decree. That being the case, the defendants 2 and 3 cannot be blamed that they approached the court at a belated stage to set aside the ex-parte decree. That apart, the suit was filed by the plaintiff for specific performance and in the interest of justice, the Trial Court should have accepted the reasons given by the defendants 2 and 3 stating that the 2nd defendant was suffering from viral fever. The non-production of the medical certificate by the 2nd defendant cannot be put against the 3nd defendant for setting aside the ex-parte decree. When the application to set side the ex-parte decree was filed within 22 days from the date of ex-parte decree, in the interest of justice, the Trial Court should have set side the ex-parte decree and given opportunity to the defendants 2 and 3 to contest the suit. When the defendants 2 and 3 have satisfactorily explained the reasons for their non-appearance on 03.07.2014, the Trial Court, should have allowed the application in I.A.No.203 of 2014.
13. In these circumstances, the fair and decreetal order passed in I.A.No.203 of 2014 in O.S.No.27 of 2009 are set aside. The application in I.A.No.203 of 2014 stands allowed. The Additional District and Sessions Judge, Hosur, is directed to dispose of the suit in O.S.No.27 of 2009 on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this judgment.
With these observations, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.
17.11.2017 Index: No Speaking Order To The Additional District and Sessions Judge Hosur.
M.DURAISWAMY, J.
Rj Judgment in C.M.A.No.2221 of 2015 & M.P.No.1 of 2015 17.11.2017