Ex parte decree passed against petitioner who was not made party in the suit

This civil revision petition has been preferred by the fifth defendant in O.S.No.143 of 1977, Sub Court, Salem, later transferred to the District Munsif’s Court, Tiruchengode and renumbered as O.S.No.867 of 1982, against the orders of the Courts below rejecting the application filed by the petitioner in I.A.No.2372 of 1989 in O.S.No.867 of 1982 praying that the exparte decree passed against it on 111. 1989 should beset aside and the petitioner permitted to contest the suit.

2. Briefly stated, the circumstances giving rise to this civil revision petition are as follows: On 13. 1977, the respondent herein instituted O.S.No.143 of 1977, Sub Court, Salem (later O.S.No.867 of 1982, District Munsif’s Court, Tiruchengode), praying for the relief of declaration that the respondent was a dealer in petroleum products and for a permanent injunction restraining defendants 1 to 4 in the suit from interfering with the carrying on of the business by the respondent. After service of summons on defendants 1 to 4 in the suit, written statements on behalf of defendants 1 and 2 were filed on 24. 1977, which was adopted by the third defendant, while, on behalf of the fourth defendant also, a written statement was filed on 7. 1977. By a memo filed on behalf of the first defendant in the suit on 16. 1978, it was brought to the notice of the Court that the first defendant, viz., Caltex Oil Refining (India) Ltd., stood amalgamated with Hindustan Petroleum Corporation Ltd., the petitioner herein, and the latter was the successor of the former and as such, the petitioner should be brought on record as a successor-in-interest of the first defendant in the suit, without prejudice to its right to defend the suit by continuing the defence already put forward. Consequent upon the memo so filed, on 37. 1978, I.A.No.390 of 1978 in O.S.No.143 of 1977, Sub Court, Salem, was filed to implead the petitioner, viz., Hindustan Pertroleum Corporation Ltd., as the fifth defendant in the suit and by an order dated 111. 1979, I.A.No.390 of 1978 was allowed and the petitioner was impleaded as the fifth defendant in the suit. Thereafter, the petitioner entered appearance through counsel and was directed on 17. 1980 to file a statement by 28. 1980 and subsequently, time for filing the written statement was extended upto 210. 1980, by which time, the petitioner had not filed any written statement and that led to the petitioner being set ex parte. When the suit was called on 1. 1981, it was dismissed for default against all the defendants in the suit on the counsel for the respondent herein reporting no instructions. The respondent, however, filed I.A.No.155 of 1981 in O.S.No.143 of 1977, Sub Court, Salem, which was later re-numbered as I.A.Nb.1993 of 1981 in O.S.No.867 of 1982, District Munsif’s Court, Tiruchengode, for the restoration of the suit dismissed for default on 1. 1981 To this application for restoration, the petitioner was not made a party and eventually, by an order dated 111. 1982, I.A.No.l993 of 1981 was allowed and the suit was restored. Thereafter, after several adjournments, on 111. 1989, an ex pate decree was passed against the petitioner as well as others. In I.A.No.2372 of 1989 in O.S.No.867 of 1982, the petitioner prayed that the ex parte decree passed against it on 111. 1989 should be set aside. In the affidavit filed in support of that application, the petitioner, after referring to the posting of the suit on 11. 1989 and its adjournment to 111. 1989 and the filing of the application to set aside the ex parte order on that date, it was stated that the counsel for the respondent informed the counsel for the petitioner that he intended to file an application to amend the plaint and, therefore, counsel for the petitioner need not come to Tiruchengode and on 111. 1989, a memo adopting the statement of the first defendant had been kept ready and further time was prayed for, but the request for time was turned down by dismissing the application fi