Aggrieved by the dismissal of of his petition to set aside the exparte decree, against which he had filed C.M.A. 16 of 2009 which is also dismissed, the defendant in O.S. 260 of 2004 has come up in revision.
2. The suit was one for declaration of title, mandatory injunction and prohibitory injunction and for other consequential reliefs. The defendant filed a written statement in which he contended that he has been in possession of the property from 1992 onwards and his main plea is one of adverse possession and limitation. According to the defendant, there was a compromise talk between the parties at the instance of the communal association and the petitioner was given to understand that the matter would be compromised and the plaintiff will not press the matter. According to the petitioner, he was under the bonafide impression that the suit will not be proceeded again. According to him, contrary to his belief, an ex parte decree was passed. When the petitioner came to know about the same, he moved a petition to set aside the ex parte decree as I.A.784 of 2009 accompanied by I.A. 785 of 2009 for condonation of delay of 593 days in filing the petition to set aside the ex parte decree.
3. The trial court found that the petitioner was aware of the fact that the ex parte order passed against him had not been set aside since he had not complied with the conditions stipulated in the order and thus he was aware of the proceedings throughout. It was also found that there was considerable laches on his part in not participating in the proceedings and there is no bonafides in his claim and therefore dismissed the petition.
4. The aggrieved defendant carried the matter in appeal as C.M.A. 16 of 2009. The lower appellate court concurred with the trial court and dismissed the appeal.
5. Learned counsel appearing for the petitioner points out that it is true that there was some delay in filing the petition for setting aside the ex parte decree. But he alleged that as per the compromise talk by the communal association, he bonafide believed that the suit would not be proceeded with. It is also pointed out that he had filed his written statement promptly and he had a contention that if at all the plaintiff had title over the property, that was lost by adverse possession and limitation. According to the petitioner, he was diligent in prosecuting the matter and it was due to the compromise talk by the communal association that he remained away from the court and had to suffer the consequences.
6. It has come out from the records that the petitioner was initially set ex parte and the petitioner filed an application to set aside the exparte order and that petition was allowed on payment of costs. Costs was not paid and therefore the petition stood dismissed. It was thereafter the ex-parte decree was passed. As rightly noticed by the trial court, it could not be said that the petitioner was unaware of the proceedings in the suit since the commission report shows that the petitioner was present at the time of inspection.
7. However, the fact remains that the defendant had filed a written statement in which he had taken a contention that he had perfected his title by adverse possession and limitation and the plaintiff has no subsisting title. This is not a case where there is absolute want of care on the part of the defendant. He had promptly filed the written statement. Therefore, the assertion by the petitioner that he bonafide believed that since there was a compromise talk by the communal association, the plaintiff would not proceed with the matter cannot simply be brushed aside.
8. Further, by having the suit decided on merits, no prejudice will be caused to the plaintiff. In fact the attempt of the court should be to decide the case on merits and not to dispose of the suit on technical grounds whereby justice is likely to suffer. Further, any loss or injury caused to the plaintiff can be compensated by awarding costs.
In the result, this Civil Revision Petition is allowed and the impugned order is set aside and the suit is restored to file on condition that the petitioner pays a sum of Rs.5,000/- to the respondent before this Court within one month from today. If the costs is not paid, this revision petition shall stand dismissed. Costs shall be paid to the counsel appearing for the respondent before this Court and file a memo.
P. BHAVADASAN, JUDGE sb.