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2005 Supreme(Mad) 869
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
S.A.Rasak & Another - Appellant
Versus
Indian Overseas Bank - Respondents
Civil Revision Petition (PD) No.35 of 2002
Decided On : 17 June 2005
The court emphasized the desirability of deciding the matter on merits rather than allowing the suit to be dismissed for default, and considered a responsible officer's sworn affidavit as credible evidence.
Headnote:
Delay - Restoration of Suit - Or.9 R.9 CPC - SR.No.16052/1996 - Summary: The court allowed the petition filed under Or.9 R.9 and restored the unnumbered suit in SR.No.16052/1996. The court considered the reasons for non-representation and found them convincing, holding that no hardship or prejudice would be caused to the respondents. The court adopted a liberal approach in considering the application, emphasizing the desirability of deciding the matter on merits rather than allowing the suit to be dismissed for default. The responsible officer's sworn affidavit explaining the erroneous noting of the hearing date was considered credible, and the court cited a precedent to support the principle that a party cannot be penalized for previous negligence that has been overlooked and condoned earlier.
Fact of the Case:
The Plaintiff Bank filed a suit for recovery of Rs.7,94,668/- with further interest at the rate of 25.75% and cost. The suit was returned for rectification of defects, and there was a delay of 1199 days in re-presentation. The application to condone the delay was dismissed for default, leading to the filing of a petition under Or.9 R.9 CPC to set aside the dismissal order.
Finding of the Court:
The court allowed the petition and restored the unnumbered suit, finding the reasons for non-representation convincing and emphasizing the desirability of deciding the matter on merits rather than allowing the suit to be dismissed for default.
Issues: The main issue was whether the delay in re-presentation of the suit should be condoned, and whether the reasons for non-representation were sufficient to set aside the dismissal order.
Ratio Decidendi: The court adopted a liberal approach in considering the application, emphasizing the desirability of deciding the matter on merits rather than allowing the suit to be dismissed for default. The responsible officer's sworn affidavit explaining the erroneous noting of the hearing date was considered credible, and the court cited a precedent to support the principle that a party cannot be penalized for previous negligence that has been overlooked and condoned earlier.
Final Decision: The court confirmed the Judgment and decree of the Assistant City Civil Court Judge, and dismissed the revision petition and CMP364 of 2002.
This revision is preferred against the Judgment and decree of the I Assistant City Civil Judge, passed in I.A.No.5040/2000 in I.A.No.18159/1999 in O.S.S.R.No.16052/ 1996 dated 24.7.2001, allowing the petition filed under Or.9 R.9 and restoring the unnumbered suit in SR.No.16052/ 1996.
2. The Respondent/Plaintiff is Indian Overseas Bank, Kodambakkam Branch. The Plaintiff Bank has filed the suit for recovery of Rs.7,94,668/- with further interest at the rate of 25.75% and cost. The suit was filed in the High Court on the Original Side. Later, when the jurisdiction of the City Civil Court was enhanced, the plaint was re-presented in that Court. The plaint was returned for rectification of certain defects. Defects were not rectified and re-presented within the stipulated time. There was a delay of 1199 days in re-presentation.
3. I.A.No.18159/2000 was filed to condone the delay of 1199 days. The application was posted for hearing on 16.11.1999. Due to non-appearance on 16.11.1999, I.A.18159/2000 was dismissed for default.
4. I.A.No.5040/2000 was filed under Or.9 R.9 CPC to set aside the dismissal order made in SR.No.16093/1999. I.A.18159/2000 was filed to set aside the order of dismissal for default. In the supporting affidavit, it has been stated that the counsel for the Plaintiff Bank has noted the date erroneously as 16.12.1999 and hence, no representation could be made on 16.11.1999 and that the non-appearance on 16.11.1999, was neither wilful nor wanton.
5. That application was resisted by the Respondents/ Defendants contending that the Plaintiffs have not properly explained the reason for delay in re-presentation. The Plaintiff Bank has not chosen to take steps but had permitted the suit to be dismissed for non representation and the application I.A.No.5040/2000 cannot be allowed.
6. Upon consideration of the contentions of both parties, the learned Assistant Judge has allowed the application finding that the reasons stated for non-representation on 16.11.1999 is convincing. It was further held that by allowing the petition I.A.NO.5040/2000 no hardship or prejudice would be caused to the Respondents.
7. Aggrieved over the order of allowing I.A.No.5040/ 2000 and setting side the order of dismissal for default made in S.R.No.16093/1999, this revision is preferred. Assailing the impugned order, the learned counsel for the Revision Petitioner has submitted that the explanation stated in the affidavit is not convincing and the trial Court erred in allowing the petition.
8. Submitting that the interest of the Public Financial Institution is involved, the learned counsel for the Plaintiff Bank has submitted that the amount involved is a huge amount of nearly Rs.8,00,000/-. The learned counsel has further submitted that the Plaintiff Bank has made out a bona fide reason for their non appearance on 16.11.1999. They cannot be faulted for their non appearance on 16.11.1999. The learned counsel has drawn the attention of the Court to the affidavit filed by the Senior Manager Mr.Mahadevan and submitted that a responsible Officer of the Bank has given a sworn statement that the date has been taken wrongly as 16.12.1999 and the same was accepted by the lower Court and the lower Court has rightly set aside the order of dismissal in I.A.No.18159/2001 and the impugned order warrants no interference. The learned counsel has further submitted that if the application is not restored, opportunity would not be available to the Plaintiff Bank to pursue the suit.
9. Any application filed under Or.9 R.9 CPC, with sufficient reasons, challenging the order of dismissal for default is to be favourably considered. In this regard, the Courts are to adopt a liberal approach in consideration of such applications. It is always desirable to decide the matter on merits rather than to allow the suit to be dismissed for default. In this case, inasmuch as huge amount of Rs.7,94,668/- with further interest is involved, when specific right of the Bank is invo
