This revision has been preferred by the petitioners, who were the defendants 2 & 3 before the lower Court, against the dismissal of the application filed by them for condonation of the delay of 387 days caused in filing the application to set aside the exparte decree passed against them.
2. The respondents herein, as plaintiffs, filed the suit in O.S.No.43 of 2004 before the lower Court for partition and for removal of the encrouchments against the defendants. The revision petitioners are the defendants 2 & 3 in the suit. Since the written statement of the petitioners herein/D2 & D3 was not filed, the suit was decreed exparte against the defendants 2 & 3 / revision petitioners herein while a contested decree was passed against the 1st defendant. There was a delay of 387 days in preferring the application to set aside the exparte decree and judgment of the lower Court. Hence, the petitioners/D2 & D3 filed an application to condone the delay of 387 days in filing the application to set aside the exparte decree. The lower Court after hearing the arguments advanced on the side the petitioners, dismissed the said application, which necessitated the petitioners to prefer this Revision.
3.The averments in the application filed by the petitioners herein/D2 & D3 are as follows:- The petitioners/defendants 2 & 3 appeared before the lower Court through counsel and the case was posted before the lower Court on 17.02.2005 for filing written statement and since no written statement was filed on that day, they were set exparte. The petitioners could not contact their counsel on that day as they had already left the suit village for their livelihood to Madras and therefore, the letter written by the counsel did not reach the petitioners and the address of the petitioners at Madras was also not known to the petitioners' lower Court counsel and when the petitioners came to the native place on personal grounds, the execution proceedings notice was served upon the petitioners and then only they could understand the real situation and the passing of exparte decree against them. However, in the meanwhile, the delay of 387 days had been caused in filing the application to set aside the exaprte decree and therefore, the said delay has to be condoned. Hence, they sought for condonation of delay in preferring an application to set aside the exparte decree.
4.The respondent/plaintiff filed a counter stating that it is not correct to state that the petitioners left the suit village to Madras and they did not receive the letter written by their counsel. Since the petitioners were not present on 16.08.2004, they were set exparte. Thereafter, the said exparte order was cancelled by an order in I.A.No.258 of 2004 and the case was posted to 21.12.2004 and 12.01.2005 for filing written statement. Lastly it was posted on 17.02.2005 for filing written statement. Since the petitioners did not file their written statement, they were set exparte by the lower Court. The suit was decreed on 17.08.2005. Hence, the petitioners are not entitled to file this application.
5.The lower Court had, after going through the papers and the evidence adduced on both sides, come to the conclusion of dismissing the application for condonation of the delay of 387 days in filing the application to set aside the exparte decree.
6.Heard Mr.A.Tamilvanan learned counsel for the petitioners and Mr.T.N.Sugesh learned counsel for the respondents.
7.According to the submissions made by the learned counsel for the petitioners, the petitioners/defendants 2 & 3 appeared before the lower Court through counsel and the case was posted before the lower Court on 17.02.2005 for filing written statement and since no written statement was filed on that day, they were set exparte. The learned counsel for the petitioners would submit in his argument that the petitioners could not contact their counsel on that day as they had already left the suit village for their livelihood to Madras and therefore, the letter written by the counsel did not reach the petitioners and the petitioners' address at Madras were also not known to the petitioners' lower Court counsel and when the petitioners came to the native place on personal grounds, the execution proceedings notice was served upon the petitioners and then only they could understand the real situation and the passing of exparte decree against them. However, in the meanwhile, the delay of 387 days had been caused in filing the application to set aside the exparte decree and therefore, the said delay may be condoned. He would further submit that the lower Court had, without appreciating the contentions and difficulties of the petitioners, come to the conclusion of dismissing the application. He would further submit that the lower Court had not considered the judgment of this Court made in 2003(2) LW 25 between Venkutalakshmi @ Rathanamma Vs. Bayamma and 12 others. He would also submit that the evidence submitted by the petitioners that they were not living in the suit village was rejected by the lower Court without any reason. Therefore, he would submit that the order passed by the lower Court should have been interfered with and an opportunity may be given to the petitioners to contest the suit and thus the Revision may be allowed.
8.The learned counsel for the respondents/plaintiffs would submit in his argument that the petitioners have not proved that they were living in Madras after the filing of the suit and did not also produce the address at Madras and actually they were residing at the suit village and they were very much aware of the pendency of the suit as well as the decree passed against them and the decree has been passed against them for removing the encroachment made by them in the suit properties and it is false to say that they did not know about the fate of the case till they receive the notice in execution proceedings. He would also submit that this is not a fit case for the condonation of delay and the petitioners have not proved that they got permanent residence at Madras and therefore, the petitioners have comeforward with false case and therefore, the lower Court was right in not exercising its discretion to condone the delay of 387 days in filing the petition to set aside the exparte decree. Therefore, there is no necessity to interfere with the order passed by the lower Court and the revision is liable may be dismissed.
9.I have given anxious consideration to the arguments advanced on either side. The defendants 2 & 3 / petitioners herein were set exparte by the lower Court since they did not file a written statement on their side. They also did not subsequently pursue the suit and the first defendant alone contested the suit and the suit was decreed against the first defendant in favour of the plaintiffs/respondents herein. Consequent to the decree passed against D1, the suit was decreed exparte against D2 & D3. The revision petitioners were the defendants 2 & 3 before the lower Court. The revision petitioners had filed an application to set aside the exparte decree passed against them along with the application to condone the delay of 387 days, since they did not know about the passing of the exparte decree against them and it was known to them only after they came to the village from Madras and the notice in EP was served on them. The petitioners were examined as P.W.1 & P.W.2 and they have also spoken that they had left the suit village to Madras even prior to the filing of the written statement, therefore, they could not instruct their counsel and Madras address of the petitioners was not made known to their counsel and they could know about the passing of the exparte decree only when they receive notice in the EP proceedings when they accidentally went to the suit village. The evidence of P.W.1 & P.W.2 would show the same cause for their non-appearance. If really the petitioners/defendants 2 & 3 want to go away from the suit village, necessary instruction should have been given by them to their counsel and the counsel should have been notified in respect of the address at Madras.
10.Admittedly the petitioners had engaged the counsel to contest the case in respect of the prayer of mandatory injunction sought for by the plaintiffs against them. It is also not disputed that on the date when the case was posted for filing written statement, the counsel engaged by the petitioners did not appear before the Court nor the petitioner revoked his vakalet. The petitioners had already obtained time for filing written statement from 21.12.2009 to 12.1.2005 and thereafter to 17.2.2005 and after the exparte order passed on 16.08.2004 against the petitioners was set aside in I.A.No.258 of 2004 by the trial Court. Therefore, they were having full knowledge about the posting of the case for written statement. Moreover, it is also the duty of the petitioners to know about the date of hearings and also to furnish the correct address to contact when they decided to go on sojourn to Madras. The petitioners did not prove to the effect that their counsel had contacted the petitioners through a letter informing them about the posting of the case for filing written statement to the village address. The further particulars for the filing any application to set aside the exparte decree should also been informed by the counsel to the petitioners. But, nothing was produced before the lower Court either in the form of an affidavit filed by the counsel for the petitioners. As rightly pointed out by the lower Court, the petitioners have not shown to the Court regarding their stay at Madras. Nodoubt the petitioners have received the notice in the execution proceedings at the suit village. The reason assigned by the petitioners were that they accidentally returned to the village from Madras and at that time EP notice was served upon them. When the petitioners did not prove that they lived at Madras, and no such address has been produced before the Court and the EP notice was also served upon the petitioners at the suit village, the Court can presume that the petitioners were living only at the native place and not elsewhere much less at Madras. Therefore, the factum of passing of exparte decree against the petitioners should have been known to them immediately and some time thereafter. The petitioners' counsel was engaged to conduct the suit would have had knowledge about the passing of exparte decree against the petitioners. I could see that the reason assigned by the petitioners that they did not know about the exparte decree passed against them were not properly proved. Therefore, I could see that the petitioners are not true and genuine in placing the matter before the lower Court, but they have stated falsehood for the purpose of their case. The reasons assigned by them for not appearing before the Court are not acceptable. Therefore, the order of the lower Court that the reasons furnished by the petitioners were not sufficient to condone the delay of 387 days in filing the application to set aside the exparte decree cannot be interfered with. The said order passed by the lower Court in dismissing the application to condone the delay of 387 days is just and proper and therefore, there is no necessity to interfere with the order passed by the lower Court.
Accordingly, the Revision fails and the same is dismissed. Connected Miscellaneous Petition is also dismissed. No costs.
ssv To, The Sub-Judge, Cheyyar