In this civil revision petition, the fair and decreetal orders, dated 05.01.2007, passed in I.A.No.36 of 2006 in O.S.No.37 of 2003, on the file of the Sub Court, Paramakudi, are impugned.
2. It is found that the respondent / plaintiff has levied the suit against the petitioners / defendants for recovery of money on the basis of the suit promissory note. It is further found that by way of the suit, the respondent / plaintiff has claimed a sum of Rs.1,22,950/- from the petitioners / defendants and subsequent interest on the principal sum from the date of the plaint till the date of realization.
3. It is found that the petitioners / defendants did not take part in the suit proceedings properly and despite the matter listed for hearing on 17.09.2005 for the cross-examination of the respondent / plaintiff, inasmuch as the petitioners / defendants did not appear, the same had resulted in an ex parte decree against them. To set aside the same, it is found that the petitioners / defendants have preferred an application in I.A.No.36 of 2006. The reason given by the petitioners / defendants for setting aside the ex parte decree is that inasmuch as at that point of time the first petitioner / first defendant was unable to avail leave and the second petitioner / second defendant was not able to furnish the information to the Advocate, they were unable to cross-examine the respondent / plaintiff and proceed with the matter and hence, the same resulted in an ex parte decree to be passed against them and hence, the same should be set aside.
4. The above case of the petitioners / defendants was stoutly resisted by the respondent / plaintiff contending that the petitioners / defendants insisted upon the examination of the respondent / plaintiff and the attesting witness on the same date and with great difficulty, the respondent / plaintiff had examined himself on 23.08.2005 and marked documents on his side and also examined the attesting witness on the same date and however, the witnesses examined were not cross-examined by the petitioners / defendants on the same date and they took an adjournment to 06.09.2005 and on 06.09.2005, they again sought for an adjournment to 17.09.2005, on which date, when the matter was finally listed for the cross-examination of the respondent / plaintiff's witness, inasmuch as the petitioners / defendants were not present to cross- examine the respondent / plaintiff's witnesses, the ex parte decree had come to be passed against them and hence, the reason now given by the petitioners / defendants that only on account of the non-availability of leave by the first petitioner / first defendant and the inability of the second petitioner / second defendant to furnish information to the Advocate concerned, they could not cross-examine the respondent / plaintiff's witnesses on 17.09.2005 is false and only when the respondent / plaintiff had initiated execution proceedings against the petitioners / defendants, they have come forward with the present application and hence, the application is liable to be dismissed.
5. On a consideration of the rival contentions put forth by the respective parties and the materials placed, it is found that the Court below was pleased to allow the application on condition that the petitioners / defendants should deposit a sum of Rs.25,000/- in the Court on or before 27.10.2006, failing which the application would stand dismissed and the above said order had come to be passed on 28.09.2006. It is further found that on 27.10.2006, the petitioners / defendants had sought for extension of time for complying with the conditional order and accordingly, the Court below had also extended the time till 27.11.2006 and further on 27.11.2006 also, the petitioners / defendants, sought for further time as a last chance and the Court below had accordingly posted the matter on 20.12.2006 and thereafter, on 23.12.2006 and finally on 05.01.2007 passed the impugned order dismissing the application preferred by the petitioners / defendants as the conditional order had not been complied with. Impugning the same, the present civil revision petition has been preferred.
6. It is found that the petitioners / defendants as such have not given any sufficient cause to set aside the ex parte decree passed against them. They had only pleaded that on account of the non-availability of leave by the first petitioner / first defendant and the inability of the second petitioner / second defendant to furnish information to the Advocate, they were unable to cross-examine the respondent / plaintiff's witness on 17.09.2005. Further, with reference to the same, it is found that no material as such had been produced despite the fact that the above said cause has been stoutly resisted by the respondent / plaintiff. According to the respondent / plaintiff, only with a view to delay the execution proceedings initiated by him, the petitioners / defendants have come forward with the application to set aside the ex parte decree passed against them and hence, the application without sufficient cause should be rejected. However, the Court below it is found that on a consideration of the rival contentions, in order to enable the petitioners / defendants to contest the case on merits and also in order to ascertain the prima facie genuineness of the petitioners / defendants' case in contesting the matter, earnestly felt that a reasonable term should be imposed upon them so as to ensure that they do not repeat the same delaying tactics to procrastinate the proceedings further. Accordingly, it is found that considering the principal sum involved in the matter amounting to Rs.75,000/-, the Court below had rightly imposed the condition of depositing of 1/3rd of the principal sum in the Court to ensure that the petitioners / defendants are anxious and genuineness in their attempt to continue with the suit proceedings further. It is found that as seen above, the petitioners / defendants have not complied with the said conditional order within the time allowed by the Court below. On the other hand, they seem to have preferred an application for extension of time, which had been accepted by the Court below and accordingly, granted time to the petitioners / defendants to comply with the conditional order by further one month i.e., granting time till 27.11.2006. Even by that time also, the petitioners / defendants have not complied with the said conditional order and on 27.11.2006, on an application preferred by them for extension of time, it is found that as a last chance, they were again granted time till 20.12.2006 and thereafter on 23.12.2006 and finally on 05.01.2007, it is found that the Court below, finding that the petitioners / defendants have not complied with the conditional order, dismissed the application.
7. It is contended by the petitioners / defendants that the Court below should not have imposed the condition of depositing of 1/3rd of the principal sum in the Court on their part and this term / condition, according to them, is unreasonable and in this connection, they placed reliance upon the decision reported in 2007 5 CTC 198 [D.K.Bhaskaran and another vs. M/s.Barton Trust]. However, a perusal of the said decision would not go to show that the Court is not empowered to impose condition while allowing the application under Order IX Rule 13 of the Code of Civil Procedure. Even a perusal of the provisions contained in Order IX Rule 13 C.P.C., would go to show that if the petitioner satisfies the Court that that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court may set aside the ex parte decree passed against him upon such terms as to costs, payment into Court or otherwise as the Court thinks fit, and shall appoint a day for proceeding with the suit. Insofar as this case is concerned, it is found that the reason given by the petitioners / defendants is not accepted by the respondent / plaintiff. According to the respondent / plaintiff, only with a view to delay the execution proceedings initiated by him, the present application has been preferred by the petitioners / defendants to delay the matter without assigning any acceptable cause. Despite the above position, the Court below in order to enable the petitioners / defendants to contest the case on merits, however, to ensure that the petitioners / defendants are genuine in their attempt in prosecuting their defence further, thought it fit to impose the term of deposit of 1/3rd of the principal sum i.e., the sum of Rs.25,000/- only in the Court deposit so that the petitioners / defendants would be careful in proceeding with their defence without further wasting the time of the Court. This act of the Trial Court, in my considered opinion, is found to be very judicious and the term imposed by the Court below for setting aside the ex parte decree cannot be termed as unreasonable or onerous as put forth by the learned counsel for the petitioners / defendants. It is not as if the Court below had directed the petitioners / defendants to pay the sum of Rs.25,000/- to the respondent / plaintiff for setting aside the ex parte decree passed against them, on the other hand, the Court below had only directed the petitioners / defendants to deposit the said amount in the Court deposit so as to justify the genuineness of their endeavour to contest the matter seriously. Therefore, it is found that the direction of the Court below in ordering the petitioners / defendants to deposit a sum of Rs.25,000/- in the Court for setting aside the ex parte decree passed against them cannot be termed as unreasonable or onerous and in such view of the matter, it is found that the decision reported and relied upon by the learned counsel for the petitioners / defendants as above mentioned would not in any manner be helpful to their case. In the above cited decision, it is not stated that the Court is not empowered to impose any condition to set aside the ex parte decree under Order IX Rule 13 C.P.C., on the other hand, it has been only stated that the term / condition imposed by the Court to set aside the ex parte decree should be reasonable and fair. Accordingly, it is found that in the light of the above discussions, when the Court's direction to the petitioners / defendants to deposit a sum of Rs.25,000/- in the Court, considering the facts and circumstances of the case being reasonable and fair and not onerous on any account coupled with the fact that the reason given by the petitioners / defendants for setting aside the ex parte decree also not substantiated with acceptable material, it is found that the petitioners / defendants instead of complying with the condition had only further delayed the matter by seeking extension of time as above referred and after getting two extension of time, they again left the matter to go for ex parte and this conduct of the petitioners / defendants would only go to show that their endeavour is not to contest the matter but only to delay the proceedings endlessly so as to cause undue loss and hardship to the respondent / plaintiff. This tendency on the part of the petitioners / defendants cannot be appreciated and encouraged.
8. In the light of the above discussions, it is found that the Court below had rightly dismissed the application preferred by the petitioners / defendants as they have failed to comply with the reasonable term imposed by the Court for enabling them to contest the matter further. In such view of the matter, I do not find any error or mistake in the impugned order of the Court below.
9. Resultantly, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To:
The Sub Judge, Paramakudi.
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