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2015 Supreme(Mad) 1471
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
PUSHPA SATHYANARAYANA, J.
S. Muthukumar – Appellant
Versus
M. Pari – Respondent
C.R.P.NPD.(MD).Nos. 858 & 898 of 2013
Decided On : 30-03-2015
Advocate Appeared:
For the Petitioner:AR.L. Sundaresan, Senior Counsel for G. Gomathi Shankar, Advocate
For the Respondent:G.R. Swaminathan, Advocate
Headnote:
Code of Civil Procedure - Order 8- Rule 10 - relief of specific performance - pay the loan - condo nation OF DELAY - against order- According to the defendant, he was running a financial institution in the name and style of Chit Funds - Said institution resulted in loss and defendant had to issue cheques and promotes in favor of the sharers. The plaintiff had forged the signature of the plaintiff and created the suit sale agreement - Defendant had moved out of and came to Chennai in search of employment as he could not continue with business which ended up in loss Suit notice was served to address where the defendant was not living for the last ten years – Therefore defendant could not come back immediately to file the written statement or set aside ex parte decree - In process there was a delay– Held, Be that as it may -In the present case, I am not examining the issue as to whether such judgment and decree ex parte could be considered under Order 9 Rule 13 of the Code of Civil Procedure. It is in the stage of previous hurdle of law of limitation - If Court is convinced about the acceptable explanation that the petitioner offered then the question of Order 8 Rule 10 would surface. In this case, the inordinate delay of 8 years is not explained properly - Defendant had been lethargic and taken his own time to challenge the decree - Law of limitation is founded on public policy. It is for the general welfare that a period be put to litigation - Certainly, the rules of limitation are not meant to destroy the rights of parties. But the dilatory tactics adopted by one party should not put opposite party to prejudice and peril. The lapse of time that too after more than 8 years should not be light heartedly disturbed - No doubt, discretion vests with the Court if sufficient cause is shown. Even if sufficient cause is shown, the defaulters cannot seek for condo nation as a matter of right - Existence of sufficient cause is only a condition precedent for the exercise of discretion - To exercise discretion all relevant factors that are put forth by the defendant have to be considered - While analyzing said factors, the Court is bound to consider the of the defendant. From conduct explained in the foregoing paragraphs, the dilatory tactics adopted by the defendant is ablaze - No doubt, Order 9 Rule 13 of Code of Civil Procedure is a legal remedy open to the defendant. However, that legal remedy is also available to a party only for a specified period - As defendant has crossed both the legislatively fixed period as well as the legitimately expected period and there is no acceptable cause or sufficient cause trial Court could not exercise the discretion in his -Having failed to avail the legal remedy promptly, the defendant has missed his opportunities - Therefore, this Court cannot entertain the submission made by the petitioner that Order 8 Rule 10 of the Code of Civil Procedure would have applicability when first hurdle of delay had not been pleaded and proved with acceptable explanation - In view of the above, it appears to be a settled legal proposition that relief under Order 8 Rule 10 CPC is discretionary, and Court has to be more cautious while exercising such power where the defendant fails to file written statement. Even in such circumstances Court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by defendant and Court must give reasons for passing such judgment however short it be but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the Court must proceed, and under what reasoning the suit has been decreed – Petition dismissed
1. Civil Revision Petition (MD) No.898 of 2013 is filed by the defendant against the order passed in I.A.No.114 of 2011 refusing to condone the delay of 3083 days in setting aside the ex parte order.
2. The parties will be referred as per their status in the suit.
3. O.S.No.142 of 2001 was filed by the plaintiff for the relief of specific performance. The said suit was posted for the filing of the written statement of the petitioner herein on 2/9/2002. As he had not filed the written statement, he was a set ex parte on the same date.
4. According to the defendant, he was running a financial institution in the name and style of 'Venkateshwara Chit Funds'. The said institution resulted in loss and the defendant had to issue cheques and pronotes in favour of the sharers. The plaintiff had forged the signature of the plaintiff and created the suit sale agreement. The defendant had moved out of Paramakudi and came to Chennai in search of employment as he could not continue with the business which ended up in loss. The suit notice was served to Paramakudi address where the defendant was not living for the last ten years. Therefore, the defendant could not come back immediately to file the written statement or set aside the ex parte decree. In the process, there was a delay of 3083 days.
5. The plaintiff resisted the said application and denied all the averments stated in support of the condonation of delay. According to the plaintiff, he had paid Rs.4,20,000/- towards sale consideration out of Rs.4,25,000/-. There was only Rs.5,000/- outstanding to be paid on execution of the sale deed. As the defendant was evading the execution of the sale deed, the suit in O.S.No.183 of 1999 was filed on the file of the Sub-Court, Ramanathapuram. In the said suit, the defendant appeared through his counsel K.Nagarajan and K.Senthur on 24/9/1999. His counsels also took several adjournments for filing the written statement. Later, the suit was transferred to the Sub-Court, Paramakudi and renumbered as O.S.No.142 of 2001. Even before the said Court, the learned counsel for the defendant Mr.K.Senthur, appeared and has filed a memo on behalf of the defendant. Again before the Sub-Court, Paramakudi, several opportunities were given to the defendant to file the written statement which were not obliged by the defendant and he was finally set ex parte on 2/9/2002.
6. Pursuant to the ex parte decree, the plaintiff had filed E.P.No.4 of 2004 in which also notice was sent to the defendant. As the defendant refused to receive the notice in Execution Petition, he was set ex parte in E.P also. In the meanwhile, one Krishnan had filed a suit against the defendant in O.S.No.203 of 1999 on the file of the Sub-Court, Ramanathapuram. In the said suit, the defendant once again appeared through his counsels K.Nagaraj and Senthur. However, the defendant was set ex parte there also on 7/8/2000 and a decree was passed against him. The said decree holder Krishnan had filed E.P.No.12 of 2003. In the said E.P.No.12 of 2003, the petitioner herein had filed a claim petition in E.A.No.49 of 2004. In all these applications and petitions, the defendant had entered appearance through counsel. Thereafter, the plaintiff herein and the plaintiff in O.S.No.203 of 1999 entered into a compromise. The plaintiff herein had settled the decree amount in O.S.No.203 of 1999 in favour of the decree holder Krishnan on behalf of the defendant. Based on which a Full Satisfaction Memo was filed in E.P.No.12 of 2003. After that the plaintiff herein had got the sale deed executed on 12/2/2010 and the same was registered on 17/2/2010. Based on the said sale, E.P.No.10 of 2010 was filed by the plaintiff for delivery of possession. In the said application also, notice was sent to the address of the defendant in Paramakudi. The notice was received by the defendant and he also filed his objections. Thereafter, despite several adjournments given to the defendant, he did not appear before the Court.
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