Trial court should not have imposed condition.

The above Civil Miscellaneous Appeals are filed against the fair and decretal orders dated 21. 2007 made in I.A.Nos.151 of 2006 in O.S.No.1 of 2005 and I.A.No.152 of 2006 in O.S.No.2 of 2005 respectively, petitions filed under Order IX Rule 13 CPC to set aside the exparte decrees passed in the respective suits on 110. 2005.

2. The respondents herein filed O.S.No.1 of 2005 and 2 of 2005 claiming a sum of Rs.5,41,030.88 and Rs.45,23,815.24 respectively with 18% interest per annum and for costs. As the defendants/appellants herein remained absent on 110. 2005, they were set exparte and the suits were allowed as prayed for.

3. To set aside the exparte decrees, the appellants herein filed I.A.Nos.151 of 2005 and 152 of 2005 respectively under Order IX Rule 13 CPC stating that the the appellants were laid up with severe fever and diarrhoea from 110. 2005 to 210. 2005 and when the suits were posted for cross examination of the plaintiffs on 110. 2005, the appellants/defendants could not attend the Court nor instruct their counsel and that the absence was not willful nor deliberate. The said applications were resisted by the respondents/plaintiffs herein contending that the applications were filed with mala fide intention to delay the execution of the decrees and the reasons stated in the affidavit are false.

4. The Trial Court, by separate orders dated 19. 2006, directed the appellants/respondents to deposit costs of Rs.44,573.25 and Rs.3,71,175/- respectively on or before 10. 2006 and in case of failure to comply with the said direction, ordered that the petitions shall stand dismissed. The Trial Court posted the matter on 10. 2006 for reporting compliance of the direction. The case was posted before the Trial Court on several dates from 10. 2006 to 21. 2007 and on 21. 2007 the Trial Court passed the following order:

"For production of High Court order. High Court order copy not produced. Costs not deposited. Petition is dismissed."

It is against the said order, the defendants in the suits filed the present Civil Miscellaneous Appeals.

5. I have heard the learned Senior Counsel appearing for the appellants as well as the learned counsel appearing for the respondents in the light of the provisions contained in Order IX rule 13 CPC.

6. The point for consideration in these appeals is whether the discretion exercised by the Trial Court while setting aside the exparte decrees ordering deposit of costs of the suits, is sustainable.

7. The reason given by the appellants for their absence on 110. 2005 as stated in the affidavit filed in support of the petition to set aside the exparte decree is that the appellant was laid up with severe fever and diarrhoea from 110. 2005 to 210. 2005 and he was bed-ridden and hence he could not move out. The learned Trial Judge, after holding that the sufficient cause is shown to set aside the ex parte decrees, by order dated 19. 2006 imposed a onerous condition to deposit the costs referred above on or before 10. 2006.

8. It is true that the Court, which passes order in set aside petitions, is vested with the discretion to allow the petition on terms. It has to be ascertained whether in this case, the course adopted by the trial court is just and proper, in the circumstances of the case, wherein the petitioner failed to appear before the Court due to his illness.

9. Sufficient cause having been made out even as per the order of the Trial Court, onerous condition for restoration cannot be imposed while setting aside the exparte orders under Order IX Rule 13 CPC. The above issue is considered in a number of decisions.

.(a) In the decision reported in AIR 1958 Madras 522 (Sri Krishna Rice Mills v. P.Rajagopala Konar) while setting aside an exparte decree, this Court awarded cost of Rs.75/- to compensate the respondent for the waste of time, money and energy caused to him and the suit was restored for fresh disposal.

.(b) In 1965 (1) MLJ 209 (Dhanalakshmi Ammal v. Shanbagalakshmi Ammal an