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2009 Supreme(Mad) 2980
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH
S.I. Rajkumar
Versus
Ramachandran
C.R.P. (NPD) No.4217 of 2008 and M.P.No.1 of 2008
Decided on: 06-08-2009
For the Petitioner:S. Rubaramaniam, Advocate.
For the Respondent:V. Dhayakumar, Advocate.
The court emphasized the need for the lower court to consider the actual reasons for the delay and to impose costs that are reasonable and justified.
Headnote:
Delay Condonation - Civil Procedure - O.S.No.301 of 2004, I.A.No.357 of 2007 - The court modified the onerous condition of depositing Rs.10,000 towards costs to Rs.1,500, allowing the application to condone the delay of 69 days in filing the application to set aside the exparte decree.
Fact of the Case:
The defendant filed a revision petition against the lower court's order to deposit a sum of Rs.10,000 towards costs to set aside an exparte decree due to a delay of 69 days. The defendant's father's illness and subsequent death, along with the defendant's own illness, were cited as reasons for the delay.
Finding of the Court:
The court found that while the lower court had accepted the reasons for the delay and allowed the application to condone it, the imposed cost of Rs.10,000 was onerous and did not consider the actual reasons for the delay. The court modified the cost to Rs.1,500, deeming the application to set aside the exparte decree as allowed upon payment of the revised cost.
Issues: The issues revolved around the delay in filing the application to set aside the exparte decree, the reasons for the delay, and the onerous condition imposed by the lower court.
Ratio Decidendi: The court's decision was influenced by the unjustifiably onerous condition imposed by the lower court and the failure to consider the actual reasons for the delay, leading to the modification of the cost to a more reasonable amount.
Final Decision: The court ordered the application to condone the delay and the application to set aside the exparte decree as allowed, with the revised cost of Rs.1,500 payable by the petitioner to the respondent within two weeks.
This Revision has been filed by the petitioner/defendant against the order passed by the lower Court in allowing the application to condone the delay of 69 days in filing a petition to set aside the exparte decree by imposing a condition to deposit a sum of Rs.10, 000/-to the credit of the suit towards costs on or before 05.06.2008.
2. The revision petitioner is the defendant before the lower Court. The plaintiff/respondent herein had filed O.S.No.301 of 2004 against the defendant/revision petitioner herein on a promissory note dated 01.04.2001 executed by the defendant/revision petitioner herein in favour of the plaintiff/respondent herein. Since the defendant/revision petitioner herein did not cross-examine the plaintiff/respondent herein, the said suit was decreed exparte by the lower Court in favour of the plaintiff/respondent herein on 30.07.2007. There was a delay of 69 days in filing an application to set aside the exparte decree. Hence, the petitioner filed I.A.No.357 of 2007 seeking for condonation of delay in filing the application to set aside the exparte decree. The lower Court had, after hearing the arguments of both sides, allowed the said application by imposing a condition on the petitioner to deposit Rs.10, 000/-towards costs to the credit of the suit. Aggrieved by the said condition, the petitioner has preferred this revision petition.
3. In the application to condone the delay the petitioner has submitted that when the case was posted for cross-examination, the petitioners father had become seriously ill and subsequently he died and after the death of the father, he fell ill and he could not meet his counsel to know about the case and on knowing the passing of exparte decree, he had instructed his counsel to file the application to set aside the exparte decree and in the meanwhile, a delay of 69 days had accrued.
4. The respondent/plaintiff had filed a counter in the said application contending that the petitioner was prolonging the case by saying one reason or the other and earlier the suit was decreed exparte twice and it was restored to the file on the applications filed by petitioner/defendant. He would further submit that the plaintiff/respondent herein had filed an application in REP.No.513 of 2007 to attach the salary of the defendant/petitioner herein, and the said petition had also been ordered exparte, but on the application filed by the defendant/petitioner herein the said exparte order was set aside by the lower Court. Therefore, the respondent herein/defendant would submit that the revision petitioner has filed these petitions only to prolong the case.
5. Heard Mr.R.Subaramaniam learned counsel for the revision petitioner and Mr.V.Udayakumar learned counsel for the respondent.
6. The learned counsel for the revision petitioner would submit in his argument that the lower Court had considered the reasons submitted by the petitioner and had come to a conclusion that the petitioner should be given an opportunity to contest the case, but certain conditions were imposed before allowing the application, and thus it had levied an onerous condition of depositing Rs.10, 000/-to the credit of the suit towards the cost, which is not justified. He would further submit that there is no intention on the part of the petitioner to prolong the case, but the lower Court had wrongly come to a conclusion that the petitioner was prolonging the case for four years by putting forth one reason or other. But, the petitioner was always ready to proceed with the case. Therefore, he would submit that the condition imposed by the petitioner may be set aside or modified and accordingly, the revision petition may be ordered.
7. The learned counsel for the respondent would submit in his argument that the lower Court ought to have dismissed the condonation application, but it had allowed the application only for the purpose of giving an opportunity to the petitioner to contest the case by imposing a sum of Rs.10,000/-
