This Civil Revision Petition is filed against the order dated 21.1.2009 passed in IA.No.218/2008 in OS.No.98/2004 on the file of the District Munsif Court, Thiruvaiyaru, allowing the petition filed to set aside the decree dated dated 21.1.2009.
2. The petitioner has filed the above said suit for recovery of a sum of Rs.50,000/-with interest and the respondent has also filed written statement in the said suit. While the case was pending trial, it appears that there had been a compromise between the petitioner and the respondent and the latter had agreed to pay a sum of Rs.20,000/- in total (according to the petitioner it is Rs.22,000/-) and in terms of the said compromise, the respondent has paid a sum of Rs.10,000/- on 1.12.2004 towards the debt and agreed to pay the remaining amount at a later date. But, since the respondent has not made any further payment, the trial had commenced and the petitioner has examined witnesses on his side and despite several hearings, the respondent remained absent and has not chosen to cross examine the plaintiff witnesses. Therefore, he was set exparte.
3. The respondent has filed a petition to set aside the exparte decree with the petition to condone the delay of 569 days, which was allowed by the court below on payment of cost of Rs.250/-, as against which this civil revision petition is filed by the petitioner/plaintiff.
4. According to the respondent, he was under the bona fide belief that the petitioner had withdrawn the suit after receiving the part payment in view of the settlement made out of court and only later he came to know about the exparte decree. The petitioner has resisted the said application by filing a counter before the court below, stating that the respondent has failed to pay the balance amount as per the settlement entered into between them out of court and the respondent having remained absent deliberately cannot claim that he was under the bona fide belief that the suit would be withdrawn. He would contend that the respondent is only interested in protracting the proceedings.
5. Admittedly, pending the suit the parties have entered into a settlement out of court and part payment has also been made by the respondent towards the said settlement, but the suit was kept pending. There is no material to indicate that the petitioner had consented to withdraw the suit on receiving the part payment.
6. It appears that sufficient opportunity had been given to the respondent to proceed with the cross examination of the witnesses, but he has neither paid the balance amount as per the settlement nor participated in the trial. It is pertinent to point that the petitioner is still willing to give effect to the settlement and the respondent can utilise the said opportunity and settle the matter as arrived at between them before passing of the exparte decree. Taking into consideration the above factors and in order to meet the ends of justice, the respondent can be directed to pay a sum of Rs.6000/- towards the balance amount payable to the petitioner by the respondent and on such condition, the exparte decree shall be set aside.
7. In the result, the impugned order dated 21.1.2009 is set aside and in the interest of justice and to give effect to the settlement, the respondent is directed to pay a sum of Rs.6000/- to the petitioner towards the claim payable to him by the respondent within a period of eight weeks from the date of receipt of a copy of this order and the remaining amount shall be paid by the respondent thereafter within such time as fixed by the court below. This civil revision petition is ordered accordingly. No costs. Consequently, the connected MP is closed.
Srcm To:
The Principal Subordinate Judge, Kumbakonam