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2002 Supreme(Mad) 1177
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. JAGADEESAN & THE HONOURABLE MR. JUSTICE P. THANGAVEL
Sri Ranga Gounder and Others - Appellant
Versus
M/s.Jaganathan & Co. - Respondents
Civil Miscellaneous Appeal (NPD) Nos.266 of 2001 and 1716 of 2002 & CMP.NO.19005 OF 2001
Decided On : 11 October 2002
Deliberate default in appearance before the court can lead to adverse consequences, but the court may consider the circumstances and impose conditions for setting aside an ex parte decree.
Headnote:
Default - Ex parte Decree - The court set aside the ex parte decree on the condition that the appellants pay costs to the respondent and deposit a part of the suit claim within specified timelines. The court also directed the transfer of multiple suits for joint trial.
Fact of the Case:
The respondent filed a suit against the appellants for recovery of a sum of Rs.3,18,800, which was decreed ex parte. The appellants sought to set aside the ex parte decree.
Finding of the Court:
The court found that the appellants and their counsel had deliberately defaulted in appearing before the court, leading to the ex parte decree. However, considering the counter claim filed by the appellants in another suit and the quantum of claim involved, the court allowed the appellants to defend the suit on the condition of paying costs and depositing a part of the suit claim.
Issues: Deliberate default in appearance before the court, setting aside an ex parte decree, transfer of suits for joint trial.
Ratio Decidendi: The deliberate default of the appellants and their counsel in not appearing before the court led to the ex parte decree. However, considering the circumstances, the court allowed the appellants to defend the suit on certain conditions.
Final Decision: The civil miscellaneous appeals were allowed on the condition of paying costs and depositing a part of the suit claim. Failure to comply with the conditions would result in dismissal of the appeals. The court also directed the transfer of multiple suits for joint trial.
S.JAGADEESAN, J.
Though service on the respondent is awaited in CMA.No.1716 of 2002, Mr.P.Peppin Fernando, learned counsel appearing for the same respondent in CMA.No.266 of 2001 has agreed to take notice. Further, Mr.Peppin Fernando, learned counsel undertakes to file vakalat for the respondent in CMA.No.1716 of 2002 and he will file it in the course of the day. Hence, the appeals are taken up for joint final disposal.
2. The defendants in O.S.No.134 of 1996 on the file of the Subordinate Judge, Sankarankoil are the appellants herein.
3. The respondent herein filed the said suit against the appellants for recovery of a sum of Rs.3,18,800/-. The appellants allowed the suit to be decreed ex parte on 17.2.1999. Thereafter, the appellants in CMA.No.266 of 2001 filed I.A.No.28 of 2000 for setting aside the said ex parte decree. The appellants in CMA.No.1716 of 2002 also filed a separate application in I.A.No.29 of 2000 for setting aside the exparte decree. The learned Subordinate Judge, Sankarankoil, by his order dated 24.4.2001, dismissed the said applications. Aggrieved by the same, the present appeals have been filed.
4. It is the contention of the learned counsel for the appellants that the appellants filed Tr.CMP.No.18137 of 1998 before this Court to transfer O.S.No.134 of 1996 from the file of the Subordinate Judge, Sankarankoil to the file of Subordinate Court, Erode for joint trial along with O.S.No.632 of 1998 filed by the appellants herein. Since, pending the said Tr.CMP., this Court granted stay, the counsel did not appear before the lower Court and consequently, the Court below passed the ex parte decree in spite of the stay granted by this Court.
5. Learned counsel for the respondent, however, contended that this Court granted stay pending Tr.CMP only for four weeks and thereafter, the stay was not extended. It is the duty of the appellants or their counsel to appear before the Court below and seek for an adjournment. The absence of both made the Court below to pass an ex parte decree, which cannot be said to be illegal. Hence, the Court below rightly dismissed the application for setting aside the ex parte decree.
6. We have carefully considered the contentions of the learned counsel on either side.
7. A perusal of paragraphs 7 and 10 of the order of the Court below clearly reveals as to how many adjournments had been granted to enable the parties to proceed with the trial. The statement made by the learned counsel for the respondent that the stay was granted only for a period of four weeks and the same was not extended further is accepted by the learned counsel for the appellants. Whenever the trial Court gives the hearing dates, it is for the counsel as well as the parties to be present on such dates before the Court and make a representation either for adjournment or otherwise. Merely because an order of interim stay of the trial has been granted by this Court for four weeks, it will not absolve the learned counsel for the appellants or the appellants from their appearance before the Court below for ever or till the disposal of the Tr.CMP. Hence, we do not find any error in the order of the Court below, as there is a deliberate default on the part of the appellants as well as their counsel in not appearing before the Court on the hearing dates.
8. However, taking into consideration of the fact that the appellants filed a suit O.S.No.632 of 1998 on the file of the Subordinate Court, Erode making a counter claim and also the quantum of claim involved in the present suit, we are of the view that the appellants can be given an opportunity to defend the suit.
9. Accordingly, we set aside the order of the Court below on condition that the appellants in each appeal shall pay a sum of Rs.2,000/- (Rupees two thousand only) by way of costs to the respondent herein directly within one week and deposit a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) representing the part of the suit claim within four
