This Revision has been filed by the petitioner/defendant against the order passed by the lower Court in allowing the application to condone the delay of 69 days in filing a petition to set aside the exparte decree by imposing a condition to deposit a sum of Rs.10,000/- to the credit of the suit towards costs on or before 05.06.2008.
2.The revision petitioner is the defendant before the lower Court. The plaintiff/respondent herein had filed O.S.No.301 of 2004 against the defendant/revision petitioner herein on a promissory note dated 01.04.2001 executed by the defendant/revision petitioner herein in favour of the plaintiff/respondent herein. Since the defendant/revision petitioner herein did not cross-examine the plaintiff/respondent herein, the said suit was decreed exparte by the lower Court in favour of the plaintiff/respondent herein on 30.07.2007. There was a delay of 69 days in filing an application to set aside the exparte decree. Hence, the petitioner filed I.A.No.357 of 2007 seeking for condonation of delay in filing the application to set aside the exparte decree. The lower Court had, after hearing the arguments of both sides, allowed the said application by imposing a condition on the petitioner to deposit Rs.10,000/- towards costs to the credit of the suit. Aggrieved by the said condition, the petitioner has preferred this revision petition.
3.In the application to condone the delay the petitioner has submitted that when the case was posted for cross-examination, the petitioner's father had become seriously ill and subsequently he died and after the death of the father, he fell ill and he could not meet his counsel to know about the case and on knowing the passing of exparte decree, he had instructed his counsel to file the application to set aside the exparte decree and in the meanwhile, a delay of 69 days had accrued.
4.The respondent/plaintiff had filed a counter in the said application contending that the petitioner was prolonging the case by saying one reason or the other and earlier the suit was decreed exparte twice and it was restored to the file on the applications filed by petitioner/defendant. He would further submit that the plaintiff/respondent herein had filed an application in REP.No.513 of 2007 to attach the salary of the defendant/petitioner herein, and the said petition had also been ordered exparte, but on the application filed by the defendant/petitioner herein the said exparte order was set aside by the lower Court. Therefore, the respondent herein/defendant would submit that the revision petitioner has filed these petitions only to prolong the case.
5.Heard Mr.R.Subaramaniam learned counsel for the revision petitioner and Mr.V.Udayakumar learned counsel for the respondent.
6.The learned counsel for the revision petitioner would submit in his argument that the lower Court had considered the reasons submitted by the petitioner and had come to a conclusion that the petitioner should be given an opportunity to contest the case, but certain conditions were imposed before allowing the application, and thus it had levied an onerous condition of depositing Rs.10,000/- to the credit of the suit towards the cost, which is not justified. He would further submit that there is no intention on the part of the petitioner to prolong the case, but the lower Court had wrongly come to a conclusion that the petitioner was prolonging the case for four years by putting forth one reason or other. But, the petitioner was always ready to proceed with the case. Therefore, he would submit that the condition imposed by the petitioner may be set aside or modified and accordingly, the revision petition may be ordered.
7.The learned counsel for the respondent would submit in his argument that the lower Court ought to have dismissed the condonation application, but it had allowed the application only for the purpose of giving an opportunity to the petitioner to contest the case by imposing a sum of Rs.10,000/- towards cost and the lower Court had assigned reasons for imposing such heavy cost that the petitioner was prolonging the case under the pretext of saying one reason or other for about four years and therefore, the cost levied by the lower Court for allowing the application is perfectly in order. He would, therefore, request the Court to dismiss the Revision.
8.Considering the facts and circumstances of the case, I could see that the petitioner, who was the defendant, had applied for condonation of delay of 69 days in preferring the application for setting aside the exparte decree and in the said application the reasons stated by the petitioner for not filing the application within the time limit are that his father had become seriously ill while the case was posted for cross-examination and subsequently he died and after the death of the father, he fell ill and he could not meet his counsel to know about the case and on knowing the passing of exparte decree, he had instructed his counsel to file the application to set aside the exparte decree and in the meanwhile, there was delay of 69 days. The lower Court had accepted the reasons submitted by the petitioner and had come to a conclusion of allowing the application to condone the delay. However, the lower Court, after considering that the petitioner had filed the application to set aside the exparte decree for the second time and therefore, it had imposed heavy cost of Rs.10,000/- payable by the petitioner to the respondent. On a careful consideration of the reason for passing such an order, I could understand that the payment of cost of Rs.10,000/- is certainly an onerous condition. The lower Court did not consider the actual reason, that the petitioner's father was ill. Therefore, I could see a serious lacuna in the orders passed by the lower Court and therefore, it has to be interfered as modifying the levying of the costs at Rs.10,000/- since it is onerous. Therefore, I could fix the cost of Rs.1,500/- in the place of Rs.10,000/- to be payable by the petitioner to the respondent.
9.Accordingly, the application filed by the petitioner in I.A.No.357 of 2007 in O.S.No.301 of 2004 to condone the delay of 69 days in filing the application to set aside the exparte decree and also the application to set aside the exparte decree pending on the file of the lower Court shall V.PERIYA KARUPPIAH, J.
be deemed to have been allowed on payment of cost of Rs.1,500/- payable by the petitioner to the respondent within two weeks from the date of receipt of copy of this order. In default to pay the said amount, the order passed by this Court in this Revision shall automatically be cancelled without any further reference to this Court.
With the above said observation, this revision petition is ordered. Connected Miscellaneous Petition is closed. No costs.
06.08.2009 Index : Yes/No Internet: Yes/No ssv NOTE:- ISSUE ON OR BEFORE 10.08.2009 To, The II Additional District Munsif, Salem.
C.R.P. (NPD) No.4217 of 2008 and M.P.No.1 of 2008